Article 1
Amendments to Directive 2002/21/EC (Framework Directive) Directive 2002/21/EC is hereby amended as follows:
1) Article 1 shall be amended as follows:
(a) paragraph 1 shall be replaced by the following:
‘1. This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services, and certain aspects of terminal equipment to facilitate access for disabled users. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community.’;
(b) the following paragraph shall be inserted:
‘3a. Measures taken by Member States regarding end-users access’ to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law. Any of these measures regarding end-users’ access to, or use of, services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of the resumption 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 conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to effective and timely judicial review shall be guaranteed.’;
2) Article 2 shall be amended as follows:
(a) point (a) shall be replaced by the following:
‘(a) “electronic communications network” means transmission systems 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 terrestrial 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;’;
(b) point (b) shall be replaced by the following:
‘(b) “transnational markets” means markets identified in accordance with Article 15(4) covering the Community or a substantial part thereof located in more than one Member State;’;
(c) point (d) shall be replaced by the following:
‘(d) “public communications network” means an electronic communications network used wholly or mainly for the provision of electronic communications services available to the public which support the transfer of information between network termination points;’;
(d) the following point shall be inserted:
‘(da) “network termination point” (NTP) means the physical point at which a subscriber is provided with access to a public communications network; in the case of networks involving switching or routing, the NTP is identified by means of a specific network address, which may be linked to a subscriber number or name;’;
(e) point (e) shall be replaced by the following:
‘(e) “associated facilities” means those associated services, physical infrastructures and other facilities or elements associated with an electronic communications network and/or an electronic communications service which enable and/or support the provision of services via that network and/or service or have the potential to do so, and include, inter alia, buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes, and cabinets;’; L337/46 EN Official Journal of theEuropean Union L 337/47
(f) the following point shall be inserted:
‘(ea) “associated services” means those services associated with an electronic communications network and/or an electronic communications service which enable and/or support the provision of services via that network and/or service or have the potential to do so and include, inter alia, number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides, as well as other services such as identity, location and presence service;’;
(g) point (l) shall be replaced by the following:
‘(l) “Specific Directives” means Directive 2002/20/EC (Authorisation Directive), Directive 2002/19/EC (Access Directive), Directive 2002/22/EC (Universal Service Directive) 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); OJ L 201, 31.7.2002, p. 37.’;
(h) the following points shall be added:
‘(q) “spectrum allocation” means the designation of a given frequency band for use by one or more types of radio communications services, where appropriate, under specified conditions;
(r) “harmful interference” means interference whichendangers the functioning of a radio navigation service or of other safety services or which otherwiseseriously degrades, obstructs or repeatedly interrupts a radio communications service operating inaccordance with the applicable international, Community or national regulations;
(s) “call” means a connection established by means of apublicly available electronic communications service allowing two-way voice communication.’;
3) Article 3 shall be amended as follows:
(a) paragraph 3 shall be replaced by the following:
‘3. Member States shall ensure that national regulatory authorities exercise their powers impartially, transparently and in a timely manner. Member States shallensure that national regulatory authorities have adequatefinancial and human resources to carry out the taskassigned to them.’;
(b) the following paragraphs shall be inserted:
‘3a. Without prejudice to the provisions of paragraphs 4 and 5, national regulatory authorities responsible for ex-ante market regulation or for the resolutionof disputes between undertakings in accordance withArticle 20 or 21 of this Directive shall act independentlyand shall not seek or take instructions from any otherbody in relation to the exercise of these tasks assigned tothem under national law implementing Community law.This shall not prevent supervision in accordance withnational constitutional law. Only appeal bodies set up inaccordance with Article 4 shall have the power to suspend or overturn decisions by the national regulatoryauthorities. Member States shall ensure that the head ofa national regulatory authority, or where applicable,members of the collegiate body fulfilling that functionwithin a national regulatory authority referred to in thefirst subparagraph or their replacements may be dismissed only if they no longer fulfil the conditionsrequired for the performance of their duties which a elaid down in advance in national law. The decision todismiss the head of the national regulatory authorityconcerned, or where applicable members of the collegiate body fulfilling that function shall be made public atthe time of dismissal. The dismissed head of the nationalregulatory authority, or where applicable, members ofthe collegiate body fulfilling that function shall receive astatement of reasons and shall have the right to requestits publication, where this would not otherwise takeplace, in which case it shall be published. Member States shall ensure that national regulatoryauthorities referred to in the first subparagraph haveseparate annual budgets. The budgets shall be made public. Member States shall also ensure that national regulatory authorities have adequate financial and humanresources to enable them to actively participate in andcontribute to the Body of European Regulators for Electronic Communications (BEREC).
3b. Member States shall ensure that the goals ofBEREC of promoting greater regulatory coordinationand coherence are actively supported by the respectivenational regulatory authorities.
3c. Member States shall ensure that national regulatory authorities take utmost account of opinions andcommon positions adopted by BEREC when adoptingtheir own decisions for their national markets. Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009establishing the Body of European Regulators forElectronic Communications (BEREC) and the Office.’; 18.12.2009 EN Official Journal of theEuropean Union 18.12.2009
4) Article 4 shall be amended as follows:
(a) paragraph 1 shall be replaced by the following:
‘1. Member States shall ensure that effective mechanisms exist at national level under which any user orundertaking providing electronic communications networks and/or services who is affected by a decision of anational regulatory authority has the right of appealagainst the decision to an appeal body that is independent of the parties involved. This body, which may be acourt, shall have the appropriate expertise to enable it tocarry out its functions effectively. Member States shallensure that the merits of the case are duly taken intoaccount and that there is an effective appeal mechanism. Pending the outcome of the appeal, the decision of thenational regulatory authority shall stand, unless interimmeasures are granted in accordance with national law.’;
(b) the following paragraph shall be added:
‘3. Member States shall collect information on thegeneral subject matter of appeals, the number of requestsfor appeal, the duration of the appeal proceedings andthe number of decisions to grant interim measures.Member States shall provide such information to theCommission and BEREC after a reasoned request fromeither.’;
5) Article 5(1) shall be replaced by the following:
‘1. Member States shall ensure that undertakings providing electronic communications networks and services provide all the information, including financial information,necessary for national regulatory authorities to ensure conformity with the provisions of, or decisions made in accordance with, this Directive and the Specific Directives. Inparticular, national regulatory authorities shall have thepower to require those undertakings to submit informationconcerning future network or service developments thatcould have an impact on the wholesale services that theymake available to competitors. Undertakings with significantmarket power on wholesale markets may also be required tosubmit accounting data on the retail markets that are associated with those wholesale markets. Undertakings shall provide such information promptly uponrequest and in conformity with the timescales and level ofdetail required by the national regulatory authority. Theinformation requested by the national regulatory authorityshall be prop rtionate to the performance of that task. Thenational regulatory authority shall give the reasons justifyingits request for information and shall treat the information inaccordance with paragraph 3.’;
6) Articles 6 and 7 shall be replaced by the following:
‘Article 6 Consultation and transparency mechanism Except in cases falling within Articles 7(9), 20, or 21, Member States shall ensure that, where national regulatoryauthorities intend to take measures in accordance with thisDirective or the Specific Directives, or where they intend toprovide for restrictions in accordance with Article 9(3)and 9(4), which have a significant impact on the relevantmarket, they give interested parties the opportunity to comment on the draft measure within a reasonable period.National regulatory authorities shall publish their nationalconsultation procedures.Member States shall ensure the establishment of a singleinformation point through which all current consultationscan be accessed.The results of the consultation procedure shall be made publicly available by the national regulatory authority, except inthe case of confidential information in accordance with Community and national law on business confidentiality.
Article 7
Consolidating the internal market for electroniccommunications
1. In carrying out their tasks under this Directive and theSpecific Directives, national regulatory authorities shall takethe utmost account of the objectives set out in Article 8,including in so far as they relate to the functioning of theinternal market.
2. National regulatory authorities shall contribute to thedevelopment of the internal market by working with eachother and with the Commission and BEREC in a transparentmanner so as to ensure the consistent application, in allMember States, of the provisions of this Directive and theSpecific Directives. To this end, they shall, in particular, workwith the Commission and BEREC to identify the types ofinstruments and remedies best suited to address particulartypes of situations in the marketplace.
3. Except where otherwise provided in recommendationsor guidelines adopted pursuant to Article 7b upon completion of the consultation referred to in Article 6, where anational regulatory authority intends to take a measurewhich:
(a) falls within the scope of Articles 15 or 16 of this Directive, or Articles 5 or 8 of Directive 2002/19/EC (AccessDirective); and L337/48 EN Official Journal of theEuropean Union L 337/49
(b) would affect trade between Member States; it shall make the draft measure accessible to the Commission,BEREC, and the national regulatory authorities in other Member States, at the same time, together with the reasoning onwhich the measure is based, in accordance with Article 5(3),and inform the Commission, BEREC and other national regulatory authorities thereof. National regulatory authorities,BEREC and the Commission may make comments to thenational regulatory authority concerned only within onemonth. The one-month period may not be extended.
4. Where an intended measure covered by paragraph 3aims at:
(a) defining a relevant market which differs from thosedefined in the Recommendation in accordance withArticle 15(1); or
(b)deciding whether or not to designate an undertaking ashaving, either individually or jointly with others, significant market power, under Article 16(3), (4) or (5); and would affect trade between Member States, and the Commission has indicated to the national regulatory authoritythat it considers that the draft measure would create a barrierto the single market or if it has serious doubts as to its compatibility with Community law and in particular the objectives referred to in Article 8, the draft measure shall not beadopted for a further two months. This period may not beextended. The Commission shall inform other national regulatory authorities of its reservations in such a case.
5. Within the two-month period referred to in paragraph 4, the Commission may:
(a) take a decision requiring the national regulatory authority concerned to withdraw the draft measure; and/or
(b) take a decision to lift its reservations in relation to a draftmeasure referred to in paragraph 4. The Commission shall take utmost account of the opinion ofBEREC before issuing a decision. The decision shall be accompanied by a detailed and objective analysis of why the Commission considers that the draft measure should not beadopted, together with specific proposals for amending thedraft measure.
6. Where the Commission has adopted a decision inaccordance with paragraph 5, requiring the national regulatory authority to withdraw a draft measure, the nationalregulatory authority shall amend or withdraw the draft measure within six months of the date of the Commission’s decision. When the draft measure is amended, the nationalregulatory authority shall undertake a public consultation inaccordance with the procedures referred to in Article 6, andshall re-notify the amended draft measure to the Commissionin accordance with the provisions of paragraph 3.
7. The national regulatory authority concerned shall takethe utmost account of comments of other national regulatoryauthorities, BEREC and the Commission and may, except incases covered by paragraphs 4 and 5(a), adopt the resultingdraft measure and, where it does so, shall communicate it tothe Commission.
8.The national regulatory authority shall communicate tothe Commission and BEREC all adopted final measures whichfall under Article 7(3)(a) and (b).
9.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 ofusers, by way of derogation from the procedure set out inparagraphs 3 and 4, it may immediately adopt proportionateand provisional measures. It shall, without delay, communicate those measures, with full reasons, to the Commission,the other national regulatory authority, and BEREC. A decision by the national regulatory authority to render such measures permanent or extend the time for which they areapplicable shall be subject to the provisions of paragraphs 3and 4.’; 7) the following Articles shall be inserted:
‘Article 7a Procedure for the consistent application of remedies
1. Where an intended measure covered by Article 7(3)aims at imposing, amending or withdrawing an obligation onan operator in application of Article 16 in conjunction withArticle 5 and Articles 9 to 13 of Directive 2002/19/EC(Access Directive), and Article 17 of Directive 2002/22/EC(Universal Service Directive), the Commission may, withinthe period of one month provided for by Article 7(3) of thisDirective, notify the national regulatory authority concernedand BEREC of its reasons for considering that the draft measure would create a barrier to the single market or its seriousdoubts as to its compatibility with Community law. In sucha case, the draft measure shall not be adopted for a furtherthree months following the Commission’s notification. In the absence of such notification, the national regulatoryauthority concerned may adopt the draft measure, takingutmost 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, the Commission, BEREC and the national regulatoryauthority concerned shall cooperate closely to identify themost appropriate and effective measure in the light of theobjectives laid down in Article 8, whilst taking due accountof the views of market participants and the need to ensurethe development of consistent regulatory practice. 18.12.2009 EN Official Journal of theEuropean Union 18.12.2009
3. Within six weeks from the beginning of the threemonth period referred to in paragraph 1, BEREC shall, actingby a majority of its component members, issue an opinionon the Commission’s notification referred to in paragraph 1,indicating whether it considers that the draft measure shouldbe amended or withdrawn and, where appropriate, providespecific proposals to that end. This opinion shall be reasonedand made public.
4. If in its opinion, BEREC shares the serious doubts of theCommission, it shall cooperate closely with the nationalregulatory authority concerned to identify the most appropriate and effective measure. Before the end of the threemonth period referred in paragraph 1, the national regulatory authority may:
(a) amend or withdraw its draft measure taking utmostaccount of the Commission’s notification referred to inparagraph 1 and of BEREC’s opinion and advice;
(b) maintain its draft measure.
5. Where BEREC does not share the serious doubts of theCommission or does not issue an opinion, or where thenational regulatory authority amends or maintains its draftmeasure pursuant to paragraph 4, the Commission may,within one month following the end of the three monthperiod referred to in paragraph 1 and taking utmost accountof the opinion of BEREC if any:
(a) issue a recommendation requiring the national regulatory authority concerned to amend or withdraw the draftmeasure, including specific proposals to that end andproviding reasons justifying its recommendation, in particular where BEREC does not share the serious doubtsof the Commission;
(b) take a decision to lift its reservations indicated in accordance with paragraph 1.
6. Within one month of the Commission issuing the recommendation in accordance with paragraph 5(a) or lifting itsreservations in accordance with paragraph 5(b), the nationalregulatory authority concerned shall communicate to theCommission and BEREC the adopted final measure. This period may be extended to allow the national regulatoryauthority to undertake a public consultation in accordancewith Article 6.
7.Where the national regulatory authority decides not toamend or withdraw the draft measure on the basis of the recommendation issued under paragraph 5(a), it shall provide areasoned justification.
8.The national regulatory authority may withdraw theproposed draft measure at any stage of the procedure.
Article 7b
Implementing provisions
1.After public consultation and consultation withnational regulatory authorities and taking utmost account ofthe opinion of BEREC, the Commission may adopt recommendations and/or guidelines in relation to Article 7 thatdefine the form, content and level of detail to be given in thenotifications required in accordance with Article 7(3), the circumstances in which notifications would not be required,and the calculation of the time limits.
2.The measures referred to in paragraph 1 shall beadopted in accordance with the advisory procedure referredto in Article 22(2).’;
8)Article 8 shall be amended as follows:
(a) in paragraph 1, the second subparagraph shall bereplaced by the following:
‘Unless otherwise provided for in Article 9 regardingradio frequencies, Member States shall take the utmostaccount of the desirability of making regulations technologically neutral and shall ensure that, in carrying outthe regulatory tasks specified in this Directive and theSpecific Directives, in particular those designed to ensureeffective competition, national regulatory authorities dolikewise.’;
(b) in paragraph 2, points (a) and (b) shall be replaced by thefollowing:
‘(a) ensuring that users, including disabled users, elderlyusers, and users with special social needs derivemaximum benefit in terms of choice, price, andquality; (b) ensuring that there is no distortion or restriction ofcompetition in the electronic communications sector, including the transmission of content;’;
(c) in paragraph 2, point (c) shall be deleted;
(d) in paragraph 3, point (c) shall be deleted;
(e) in paragraph 3, point (d) shall be replaced by thefollowing:
‘(d) cooperating with each other, with the Commissionand BEREC so as to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives.’;
(f) in paragraph 4, point (e) shall be replaced by thefollowing:
‘(e) addressing the needs of specific social groups, inparticular disabled users, elderly users and userswith special social needs;’; L337/50 EN Official Journal of theEuropean Union L 337/51
(g) in paragraph 4, the following point shall be added:
‘(g) promoting the ability of end-users to access and distribute information or run applications and servicesof their choice;’;
(h) the following paragraph shall be added:
‘5. The national regulatory authorities shall, in pursuit of the policy objectives referred to in paragraphs 2,3 and 4, apply objective, transparent, non-discriminatory and proportionate regulatory principlesby, inter alia:
(a) promoting regulatory predictability by ensuring aconsistent regulatory approach over appropriatereview periods;
(b) ensuring that, in similar circumstances, there is nodiscrimination in the treatment of undertakingsproviding electronic communications networks andservices;
(c) safeguarding competition to the benefit of consumers and promoting, where appropriate,infrastructure-based competition;
(d) promoting efficient investment and innovation innew and enhanced infrastructures, including byensuring that any access obligation takes appropriate account of the risk incurred by the investingundertakings and by permitting various cooperativearrangements between investors and parties seekingaccess to diversify the risk of investment, whilstensuring that competition in the market and theprinciple of non-discrimination are preserved;
(e) taking due account of the variety of conditionsrelating to competition and consumers that exist inthe various geographic areas within a Member State;
(f) imposing ex-ante regulatory obligations only wherethere is no effective and sustainable competitionand relaxing or lifting such obligations as soon asthat condition is fulfilled.’;
9) the following Article shall be inserted:
‘Article 8a Strategic planning and coordination of radio spectrumpolicy
1. Member States shall cooperate with each other andwith the Commission in the strategic planning, coordinationand harmonisation of the use of radio spectrum in the European Community. To this end, they shall take into consideration, inter alia, the economic, safety, health, public interest,freedom of expression, cultural, scientific, social and technical aspects of EU policies as well as the various interests ofradio spectrum user communities with the aim of optimising the use of radio spectrum and avoiding harmfulinterference.
2. By cooperating with each other and with the Commission, Member States shall promote the coordination of radiospectrum policy approaches in the European Communityand, where appropriate, harmonised conditions with regardto the availability and efficient use of radio spectrum necessary for the establishment and functioning of the internalmarket in electronic communications.
3. The Commission, taking utmost account of the opinion of the Radio Spectrum Policy Group (RSPG), establishedby Commission Decision 2002/622/EC of 26 July 2002establishing a Radio Spectrum Policy Group, may submitlegislative proposals to the European Parliament and theCouncil for establishing multiannual radio spectrum policyprogrammes. Such programmes shall set out the policy orientations and objectives for the strategic planning and harmonisation of the use of radio spectrum in accordance withthe provisions of this Directive and the Specific Directives.
4. Where necessary to ensure the effective coordination ofthe interests of the European Community in internationalorganisations competent in radio spectrum matters, theCommission, taking utmost account of the opinion of theRSPG, may propose common policy objectives to the European Parliament and the Council. OJ L 198, 27.7.2002, p. 49.’;
10) Article 9 shall be replaced by the following:
‘Article 9 Management of radio frequencies for electroniccommunications services
1. Taking due account of the fact that radio frequenciesare a public good that has an important social, cultural andeconomic value, Member States shall ensure the effectivemanagement of radio frequencies for electronic communication services in their territory in accordance with Articles 8and 8a. They shall ensure that spectrum allocation used forelectronic communications services and issuing generalauthorisations or individual rights of use of such radio frequencies by competent national authorities are based onobjective, transparent, non-discriminatory and proportionatecriteria. In applying this Article, Member States shall respect relevantinternational agreements, including the ITU Radio Regulations, and may take public policy considerations intoaccount. 18.12.2009 EN Official Journal of theEuropean Union 18.12.2009
2. Member States shall promote the harmonisation of useof radio frequencies across the Community, consistent withthe need to ensure effective and efficient use thereof and inpursuit of benefits for the consumer such as economies ofscale and interoperability of services. In so doing, they shallact in accordance with Article 8a and with the DecisionNo 676/2002/EC (Radio Spectrum Decision).
3. Unless otherwise provided in the second subparagraph,Member States shall ensure that all types of technology usedfor electronic communications services may be used in theradio frequency bands, declared available for electronic communications services in their National Frequency AllocationPlan in accordance with Community law. Member States may, however, provide for proportionate andnon-discriminatory restrictions to the types of radio networkor wireless access technology used for electronic communications services where this is necessary to:
(a)avoid harmful interference;
(b) protect public health against electromagnetic fields;
(c) ensure technical quality of service;
(d) ensure maximisation of radio frequency sharing;
(e) safeguard efficient use of spectrum; or
(f) ensure the fulfilment of a general interest objective inaccordance with paragraph 4.
4. Unless otherwise provided in the second subparagraph,Member States shall ensure that all types of electronic communications services may be provided in the radio frequencybands, declared available for electronic communications services in their National Frequency Allocation Plan in accordance with Community law. Member States may, however,provide for proportionate and non-discriminatory restrictions to the types of electronic communications services tobe provided, including, where necessary, to fulfil a requirement under the ITU Radio Regulations. Measures that require an electronic communications serviceto be provided in a specific band available for electronic communications services shall be justified in order to ensure thefulfilment of a general interest objective as defined by Member States in conformity with Community law, such as, andnot limited to:
(a) safety of life;
(b) the promotion of social, regional or territorial cohesion;
(c) the avoidance of inefficient use of radio frequencies; or
(d) the promotion of cultural and linguistic diversity andmedia pluralism, for example by the provision of radioand television broadcasting services. A measure which prohibits the provision of any other electronic communications service in a specific band may onlybe provided for where justified by the need to protect safetyof life services. Member States may, exceptionally, also extendsuch a measure in order to fulfil other general interest objectives as defined by Member States in accordance with Community law.
5. Member States shall regularly review the necessity ofthe restrictions referred to in paragraphs 3 and 4, and shallmake the results of these reviews public.
6. Paragraphs 3 and 4 shall apply to spectrum allocated tobe used for electronic communications services, generalauthorisations issued and individual rights of use of radio frequencies granted after 25 May 2011.
Spectrum allocations, general authorisations and individualrights of use which existed by 25 May 2011 shall be subjectto Article 9a.
7. Without prejudice to the provisions of the SpecificDirectives and taking into account the relevant national circumstances, Member States may lay down rules in order toprevent spectrum hoarding, in particular by setting out strictdeadlines for the effective exploitation of the rights of use bythe holder of the rights and by applying penalties, includingfinancial penalties or the withdrawal of the rights of use incase of non-compliance with the deadlines. These rules shallbe established and applied in a proportionate, non-discriminatory and transparent manner.’;
11) the following Articles shall be inserted:
‘Article 9a Review of restrictions on existing rights
1. For a period of five years starting from 25 May 2011,Member States may allow holders of rights to use radio frequencies which were granted before that date and which willremain valid for a period of not less that five years after thatdate, to submit an application to the competent nationalauthority for a reassessment of the restrictions on their rightsin accordance with Article 9(3) and (4). Before adopting its decision, the competent national authority shall notify the right holder of its reassessment of therestrictions, indicating the extent of the right after reassessment, and shall allow him a reasonable time limit to withdraw his application. L337/52 EN Official Journal of theEuropean Union L 337/53 If the right holder withdraws his application, the right shallremain unchanged until its expiry or until the end of the five-year period, whichever is the earlier date.
2. After the five-year period referred to in paragraph 1,Member States shall take all appropriate measures to ensurethat Article 9(3) and (4) apply to all remaining general authorisations or individual rights of use and spectrum allocationsused for electronic communications services which existedon 25 May 2011.
3.In applying this Article, Member States shall takeappropriate measures to promote fair competition.
4.Measures adopted in applying this Article do not constitute the granting of new rights of use and therefore are notsubject to the relevant provisions of Article 5(2) ofDirective 2002/20/EC (Authorisation Directive).
Article 9b
Transfer or lease of individual rights to use radiofrequencies
1.Member States shall ensure that undertakings maytransfer or lease to other undertakings in accordance withconditions attached to the rights of use of radio frequenciesand in accordance with national procedures individual rightsto use radio frequencies in the bands for which this is provided in the implementing measures adopted pursuant toparagraph 3. In other bands, Member States may also make provision forundertakings to transfer or lease individual rights to use radiofrequencies to other undertakings in accordance withnational procedures. Conditions attached to individual rights to use radio frequencies shall continue to apply after the transfer or lease, unlessotherwise specified by the competent national authority. Member States may also determine that the provisions of thisparagraph shall not apply where the undertaking’s individualright to use radio frequencies was initially obtained free ofcharge.
2.Member States shall ensure that an undertaking’s intention to transfer rights to use radio frequencies, as well as theeffective transfer thereof is notified in accordance withnational procedures to the competent national authorityresponsible for granting individual rights of use and is madepublic. Where radio frequency use has been harmonisedthrough the application of the Decision No 676/2002/EC(Radio Spectrum Decision) or other Community measures,any such transfer shall comply with such harmonised use.
3.The Commission may adopt appropriate implementingmeasures to identify the bands for which rights to use radiofrequencies may be transferred or leased between undertakings. These measures shall not cover frequencies which areused for broadcasting. These technical implementing measures, designed to amendnon-essential elements of this Directive by supplementing it,shall be adopted in accordance with the regulatory procedurewith scrutiny referred to in Article 22(3).’;
12) Article 10 shall be amended as follows:
(a) paragraphs 1 and 2 shall be replaced by the following:
‘1. Member States shall ensure that national regulatory authorities control the granting of rights of use ofall national numbering resources and the managementof the national numbering plans. Member States shallensure that adequate numbers and numbering ranges areprovided for all publicly available electronic communications services. National regulatory authorities shallestablish objective, transparent and non-discriminatoryprocedures for granting rights of use for national numbering resources.
2.National regulatory authorities shall ensure thatnational numbering plans and procedures are applied ina manner that gives equal treatment to all providers ofpublicly available electronic communications services. Inparticular, Member States shall ensure that an undertaking to which the right of use for a range of numbers hasbeen granted does not discriminate against other providers of electronic communications services as regards thenumber sequences used to give access to their services.’;
(b)paragraph 4 shall be replaced by the following:
‘4. Member States shall support the harmonisation ofspecific numbers or numbering ranges within the Community where it promotes both the functioning of theinternal market and the development of pan-Europeanservices. The Commission may take appropriate technical implementing measures on this matter. These measures designed to amend non-essential elements of this Directive by supplementing it, shall beadopted in accordance with the regulatory procedurewith scrutiny referred to in Article 22(3).’;
13) Article 11 shall be amended as follows:
(a) paragraph 1, second subparagraph, first indent shall bereplaced by the following:
‘--- acts on the basis of simple, efficient, transparent andpublicly available procedures, applied without discrimination and without delay, and in any eventmakes its decision within six months of the application, except in cases of expropriation, and’; 18.12.2009 EN Official Journal of theEuropean Union 18.12.2009
(b) paragraph 2 shall be replaced by the following:
‘2. Member States shall ensure that where public orlocal authorities retain ownership or control of undertakings operating public electronic communications networks and/or publicly available electroniccommunications services, there is an effective structuralseparation of the function responsible for granting therights referred to in paragraph 1 from the activities associated with ownership or control.’;
14) Article 12 shall be replaced by the following:
‘Article 12 Co-location and sharing of network elements andassociated facilities for providers of electroniccommunications networks
1. Where an undertaking providing electronic communications networks has the right under national legislation toinstall facilities on, over or under public or private property,or may take advantage of a procedure for the expropriationor use of property, national regulatory authorities shall, taking full account of the principle of proportionality, be able toimpose the sharing of such facilities or property, includingbuildings, entries to buildings, building wiring, masts, antennae, towers and other supporting constructions, ducts, conduits, manholes, cabinets.
2. Member States may require holders of the rightsreferred to in paragraph 1 to share facilities or property(including physical co-location) or take measures to facilitatethe coordination of public works in order to protect the environment, public health, public security or to meet town andcountry planning objectives and only after an appropriateperiod of public consultation, during which all interested parties shall be given an opportunity to express their views. Suchsharing or coordination arrangements may include rules forapportioning the costs of facility or property sharing.
3. Member States shall ensure that national authorities,after an appropriate period of public consultation duringwhich all interested parties are given the opportunity to statetheir views, also have the power to impose obligations inrelation to the sharing of wiring inside buildings or up to thefirst concentration or distribution point where this is locatedoutside the building, on the holders of the rights referred toin paragraph 1 and/or on the owner of such wiring, wherethis is justified on the grounds that duplication of such infrastructure would be economically inefficient or physicallyimpracticable. Such sharing or coordination arrangementsmay include rules for apportioning the costs of facility orproperty sharing adjusted for risk where appropriate.
4. Member States shall ensure that competent nationalauthorities may require undertakings to provide the necessary information, if requested by the competent authorities,in order for these authorities, in conjunction with nationalregulatory authorities, to be able to establish a detailed inventory of the nature, availability and geographical location ofthe facilities referred to in paragraph 1 and make it availableto interested parties.
5. Measures taken by a national regulatory authority inaccordance with this Article shall be objective, transparent,non-discriminatory, and proportionate. Where relevant,these measures shall be carried out in coordination with localauthorities.’;
15) the following chapter shall be inserted:
‘CHAPTER IIIa SECURITY AND INTEGRITY OF NETWORKS AND SERVICES Article 13a Security and integrity
1. Member States shall ensure that undertakings providing public communications networks or publicly availableelectronic communications services take appropriate technical and organisational measures to appropriately manage therisks posed to security of networks and services. Havingregard to the state of the art, these measures shall ensure alevel of security appropriate to the risk presented. In particular, measures shall be taken to prevent and minimise theimpact of security incidents on users and interconnectednetworks.
2. Member States shall ensure that undertakings providing public communications networks take all appropriatesteps to guarantee the integrity of their networks, and thusensure the continuity of supply of services provided overthose networks.
3. Member States shall ensure that undertakings providing public communications networks or publicly availableelectronic communications services notify the competentnational regulatory authority of a breach of security or lossof integrity that has had a significant impact on the operation of networks or services. Where appropriate, the national regulatory authority concerned shall inform the national regulatory authorities inother Member States and the European Network and Information Security Agency (ENISA). The national regulatoryauthority concerned may inform the public or require theundertakings to do so, where it determines that disclosure ofthe breach is in the public interest. Once a year, the national regulatory authority concernedshall submit a summary report to the Commission andENISA on the notifications received and the action taken inaccordance with this paragraph. L337/54 EN Official Journal of theEuropean Union L 337/55
4. The Commission, taking the utmost account of theopinion of ENISA, may adopt appropriate technical implementing measures with a view to harmonising the measuresreferred to in paragraphs 1, 2, and 3, including measuresdefining the circumstances, format and procedures applicableto notification requirements. These technical implementingmeasures shall be based on European and international standards to the greatest extent possible, and shall not preventMember States from adopting additional requirements inorder to pursue the objectives set out in paragraphs 1 and 2. These implementing measures, designed to amend non-essential elements of this Directive by supplementing it, shallbe adopted in accordance with the regulatory procedure withscrutiny referred to in Article 22(3).
Article 13b
Implementation and enforcement
1. Member States shall ensure that in order to implementArticle 13a, competent national regulatory authorities havethe power to issue binding instructions, including thoseregarding time limits for implementation, to undertakingsproviding public communications networks or publicly available electronic communications services.
2. Member States shall ensure that competent nationalregulatory authorities have the power to require undertakingsproviding public communications networks or publicly available electronic communications services to:
(a) provide information needed to assess the security and/orintegrity of their services and networks, including documented security policies; and
(b) submit to a security audit carried out by a qualified independent body or a competent national authority andmake the results thereof available to the national regulatory authority. The cost of the audit shall be paid bythe undertaking.
3. Member States shall ensure that national regulatoryauthorities have all the powers necessary to investigate casesof non-compliance and the effects thereof on the security andintegrity of the networks.
4. These provisions shall be without prejudice to Article 3of this Directive.’;
16) in Article 14, paragraph 3 shall be replaced by the following:
‘3. Where an undertaking has significant market power ona specific market (the first market), it may also be designatedas having significant market power on a closely related market (the second market), where the links between the twomarkets are such as to allow the market power held in thefirst market to be leveraged into the second market, therebystrengthening the market power of the undertaking. Consequently, remedies aimed at preventing such leverage may beapplied in the second market pursuant to Articles 9, 10, 11and 13 of Directive 2002/19/EC (Access Directive), andwhere such remedies prove to be insufficient, remedies pursuant to Article 17 of Directive 2002/22/EC (Universal Service Directive) may be imposed.’;
17) Article 15 shall be amended as follows:
(a) the heading shall be replaced by the following:
‘Procedure for the identification and definition ofmarkets’;
(b)in paragraph 1, the first subparagraph shall be replacedby the following:
‘1. After public consultation including with nationalregulatory authorities and taking the utmost account ofthe opinion of BEREC, the Commission shall, in accordance with the advisory procedure referred to inArticle 22(2), adopt a Recommendation on RelevantProduct and Service Markets (the Recommendation). TheRecommendation shall identify those product and service markets within the electronic communications sector the characteristics of which may be such as to justifythe imposition of regulatory obligations set out in theSpecific Directives, without prejudice to markets thatmay be defined in specific cases under competition law.The Commission shall define markets in accordancewith the principles of competition law.’;
(c) paragraph 3 shall be replaced by the following:
‘3. National regulatory authorities shall, taking theutmost account of the Recommendation and the Guidelines, define relevant markets appropriate to national circumstances, in particular relevant geographic marketswithin their territory, in accordance with the principlesof competition law. National regulatory authorities shallfollow the procedures referred to in Articles 6 and 7before defining the markets that differ from those identified in the Recommendation.’;
(d) paragraph 4 shall be replaced by the following:
‘4. After consultation including with national regulatory authorities the Commission may, taking the utmostaccount of the opinion of BEREC, adopt a Decision identifying transnational markets, acting in accordance withthe regulatory procedure with scrutiny referred to inArticle 22(3).’; 18.12.2009 EN Official Journal of theEuropean Union 18.12.2009
18) Article 16 shall be amended as follows:
(a) paragraphs 1 and 2 shall be replaced by the following:
‘1. National regulatory authorities shall carry out ananalysis of the relevant markets taking into account themarkets identified in the Recommendation, and takingthe utmost account of the Guidelines. Member Statesshall ensure that this analysis is carried out, where appropriate, in collaboration with the national competitionauthorities.
'2. Where a national regulatory authority is requiredunder paragraphs 3 or 4 of this Article, Article 17 ofDirective 2002/22/EC (Universal Service Directive), orArticle 8 of Directive 2002/19/EC (Access Directive) todetermine whether to impose, maintain, amend or withdraw obligations on undertakings, it shall determine onthe basis of its market analysis referred to in paragraph 1of this Article whether a relevant market is effectivelycompetitive.’;
(b) paragraphs 4, 5 and 6 shall be replaced by the following:
‘4. Where a national regulatory authority determinesthat a relevant market is not effectively competitive, itshall identify undertakings which individually or jointlyhave a significant market power on that market in accordance with Article 14 and the national regulatoryauthority shall on such undertakings impose appropriate specific regulatory obligations referred to in paragraph 2 of this Article or maintain or amend suchobligations where they already exist.
'5. In the case of transnational markets identified inthe Decision referred to in Article 15(4), the nationalregulatory authorities concerned shall jointly conductthe market analysis taking the utmost account of theGuidelines and, in a concerted fashion, shall decide onany imposition, maintenance, amendment or withdrawal of regulatory obligations referred to in paragraph 2 of this Article.
'6. Measures taken in accordance with the provisionsof paragraphs 3 and 4 shall be subject to the proceduresreferred to in Articles 6 and 7. National regulatoryauthorities shall carry out an analysis of the relevantmarket and notify the corresponding draft measure inaccordance with Article 7:
(a) within three years from the adoption of a previousmeasure relating to that market. However, exceptionally, that period may be extended for up to threeadditional years, where the national regulatoryauthority has notified a reasoned proposed extension to the Commission and the Commission hasnot objected within one month of the notifiedextension;
(b) within two years from the adoption of a revisedRecommendation on relevant markets, for marketsnot previously notified to the Commission; or
(c) within two years from their accession, for MemberStates which have newly joined the Union.’; (c) the following paragraph shall be added:
‘7. Where a national regulatory authority has notcompleted its analysis of a relevant market identified inthe Recommendation within the time limit laid down inparagraph 6, BEREC shall, upon request, provide assistance to the national regulatory authority concerned incompleting the analysis of the specific market and thespecific obligations to be imposed. With this assistance,the national regulatory authority concerned shall withinsix months notify the draft measure to the Commissionin accordance with Article 7.’;
19) Article 17 shall be amended as follows:
(a) in the first sentence of paragraph 1, the word ‘standards’shall be replaced by ‘non-compulsory standards’;
(b) the third subparagraph of paragraph 2 shall be replacedby the following:
‘In the absence of such standards and/or specifications,Member States shall encourage the implementation ofinternational standards or recommendations adopted bythe International Telecommunication Union (ITU), theEuropean Conference of Postal and TelecommunicationsAdministrations (CEPT), the International Organisationfor Standardisation (ISO) and the International Electrotechnical Commission (IEC).’;
(c) paragraphs 4 and 5 shall be replaced by the following:
‘4. Where the Commission intends to make theimplementation of certain standards and/or specifications compulsory, it shall publish a notice in the OfficialJournal of the European Union and invite public commentby all parties concerned. The Commission shall takeappropriate implementing measures and make implementation of the relevant standards compulsory by making reference to them as compulsory standards in the listof standards and/or specifications published in the Official Journal of the European Union.
'5. Where the Commission considers that standardsand/or specifications referred to in paragraph 1 nolonger contribute to the provision of harmonised electronic communications services, or that they no longermeet consumers’ needs or are hampering technologicaldevelopment, it shall, acting in accordance with the advisory procedure referred to in Article 22(2), remove themfrom the list of standards and/or specifications referredto in paragraph 1.’;
(d) in paragraph 6, the words ‘acting in accordance with theprocedure referred to in Article 22(3), remove themfrom this list of standards and/or specifications referredto in paragraph 1’ shall be replaced by the words ‘takethe appropriate implementing measures and removethose standards and/or specifications from the list ofstandards and/or specifications referred to inparagraph 1’; L337/56 EN Official Journal of theEuropean Union L 337/57
(e) the following paragraph shall be inserted:
‘6a. The implementing measures designed to amendnon-essential elements of this Directive by supplementing it, referred to in paragraphs 4 and 6, shall be adoptedin accordance with the regulatory procedure with scrutiny referred to in Article 22(3).’;
20) Article 18 shall be amended as follows:
(a) in paragraph 1, the following point (c) shall be added:
‘(c) providers of digital TV services and equipment tocooperate in the provision of interoperable TV services for disabled end-users.’;
(b) paragraph 3 shall be deleted;
21) Article 19 shall be replaced by the following:
‘Article 19 Harmonisation procedures
1. Without prejudice to Article 9 of this Directive andArticles 6 and 8 of Directive 2002/20/EC (AuthorisationDirective), where the Commission finds that divergences inthe implementation by the national regulatory authorities ofthe regulatory tasks specified in this Directive and the Specific Directives may create a barrier to the internal market,the Commission may, taking the utmost account of the opinion of BEREC, issue a recommendation or a decision on theharmonised application of the provisions in this Directiveand the Specific Directives in order to further the achievement of the objectives set out in Article 8.
2. Where the Commission issues a recommendation pursuant to paragraph 1, it shall act in accordance with the advisory procedure referred to in Article 22(2).Member States shall ensure that national regulatory authorities take the utmost account of those recommendations incarrying out their tasks. Where a national regulatory authority chooses not to follow a recommendation, it shall informthe Commission, giving the reasons for its position.
3. The decisions adopted pursuant to paragraph 1 mayinclude only the identification of a harmonised or coordinated approach for the purposes of addressing the followingmatters:
(a) the inconsistent implementation of general regulatoryapproaches by national regulatory authorities on theregulation of electronic communication markets in theapplication of Articles 15 and 16, where it creates a barrier to the internal market. Such decisions shall not referto specific notifications issued by the national regulatoryauthorities pursuant to Article 7a; In such a case, the Commission shall propose a draftdecision only: — after at least two years following the adoption of aCommission Recommendation dealing with thesame matter, and--- taking utmost account of an opinion from BERECon the case for adoption of such a decision, whichshall be provided by BEREC within three months ofthe Commission’s request;
(b) numbering, including number ranges, portability ofnumbers and identifiers, number and address translationsystems, and access to 112 emergency services.
4. The decision referred to in paragraph 1, designed toamend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 22(3).
5. BEREC may on its own initiative advise the Commission on whether a measure should be adopted pursuant toparagraph 1.’;
22) Article 20(1) shall be replaced by the following:
‘1. In the event of a dispute arising in connection withexisting obligations under this Directive or the Specific Directives between undertakings providing electronic communications networks or services in a Member State, or betweensuch undertakings and other undertakings in the MemberState benefiting from obligations of access and/or interconnection arising under this Directive or the Specific Directives,the national regulatory authority concerned shall, at therequest of either party, and without prejudice to the provisions of paragraph 2, issue a binding decision to resolve thedispute in the shortest possible time frame and in any casewithin four months, except in exceptional circumstances.The Member State concerned shall require that all partiescooperate fully with the national regulatory authority.’;
23) Article 21 shall be replaced by the following:
‘Article 21 Resolution of cross-border disputes
1. In the event of a cross-border dispute arising under thisDirective or the Specific Directives between parties in different Member States, and where the dispute lies within thecompetence of national regulatory authorities from morethan one Member State, the provisions set out in paragraphs 2, 3 and 4 shall be applicable.
2. Any party may refer the dispute to the national regulatory authorities concerned. The competent national regulatory authorities shall coordinate their efforts and shall havethe right to consult BEREC in order to bring about a consistent resolution of the dispute, in accordance with the objectives set out in Article 8. 18.12.2009 EN Official Journal of theEuropean Union 18.12.2009 Any obligations imposed by the national regulatory authorities on undertakings as part of the resolution of a disputeshall comply with this Directive and the Specific Directives. Any national regulatory authority which has competence insuch a dispute may request BEREC to adopt an opinion as tothe action to be taken in accordance with the provisions ofthe Framework Directive and/or the Specific Directives toresolve the dispute. Where such a request has been made to BEREC, any nationalregulatory authority with competence in any aspect of thedispute shall await BEREC’s opinion before taking action toresolve the dispute. This shall not preclude national regulatory authorities from taking urgent measures wherenecessary. Any obligations imposed on an undertaking by the nationalregulatory authority in resolving a dispute shall respect theprovisions of this Directive or the Specific Directives and takethe utmost account of the opinion adopted by BEREC.
3. Member States may make provision for the competentnational regulatory authorities jointly to decline to resolve adispute where other mechanisms, including mediation, existand would better contribute to resolving of the dispute in atimely manner in accordance with the provisions of Article 8. They shall inform the parties without delay. If after fourmonths the dispute is not resolved, where the dispute has notbeen brought before the courts by the party seeking redressand if either party requests it, the national regulatory authorities shall coordinate their efforts in order to resolve the dispute, in accordance with the provisions set out in Article 8and taking the utmost account of any opinion adopted byBEREC.
4. The procedure referred to in paragraph 2 shall not preclude either party from bringing an action before the courts.’;
24) the following Article shall be inserted:
‘Article 21a Penalties
Member States shall lay down rules on penalties applicable toinfringements of national provisions adopted pursuant tothis Directive and the Specific Directives and shall take allmeasures necessary to ensure that they are implemented. Thepenalties provided for must be appropriate, effective, proportionate and dissuasive. The Member States shall notify thoseprovisions to the Commission by 25 May 2011 and shallnotify it without delay of any subsequent amendment affecting them.’;
25) Article 22 shall be amended as follows:
(a) paragraph 3 shall be replaced by the following:
‘3. Where reference is made to this paragraph,Article 5a(1) to (4), and Article 7 of Decision1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.’;
(b) paragraph 4 shall be deleted;
26) Article 27 shall be deleted;
27) Annex I shall be deleted;
28) Annex II shall be replaced by the following:
‘ANNEX II Criteria to be used by national regulatory authorities in makingan assessment of joint dominance in accordance with thesecond subparagraph of Article 14(2) Two or more undertakings can be found to be in a jointdominant position within the meaning of Article 14 if, evenin the absence of structural or other links between them, theyoperate in a market which is characterised by a lack of effective competition and in which no single undertaking has significant market power. In accordance with the applicableCommunity law and with the case-law of the Court of Justiceof the European Communities on joint dominance, this islikely to be the case where the market is concentrated andexhibits a number of appropriate characteristics of which thefollowing may be the most relevant in the context of electronic communications:
Article 2
Amendments to Directive 2002/19/EC (Access Directive) Directive 2002/19/EC is hereby amended as follows:
1) Article 2 shall be amended as follows:
(a) point (a) shall be replaced by the following:
‘(a) “access” means the making available of facilitiesand/or services to another undertaking, underdefined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communications services, including whenthey are used for the delivery of information society services or broadcast content services. It coversinter alia: access to network elements and associatedfacilities, which may involve the connection ofequipment, by fixed or non-fixed means (in particular this includes access to the local loop and tofacilities and services necessary to provide servicesover the local loop); access to physical infrastructureincluding buildings, ducts and masts; access to relevant software systems including operational support systems; access to information systems ordatabases for pre-ordering, provisioning, ordering,maintaining and repair requests, and billing; accessto number translation or systems offering equivalent functionality; access to fixed and mobile networks, in particular f r roaming; access toconditional access systems for digital television services and access to virtual network services.’;
(b) point (e) shall be replaced by the following:
‘(e) “local loop” means the physical circuit connectingthe network termination point to a distributionframe or equivalent facility in the fixed public electronic communications network.’;
2) Article 4(1) shall be replaced by the following:
‘1. Operators of public communications networks shallhave a right and, when requested by other undertakings soauthorised in accordance with Article 4 of Directive2002/20/EC (Authorisation Directive), an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services,in order to ensure provision and interoperability of servicesthroughout the Community. Operators shall offer access andinterconnection to other undertakings on terms and conditions consistent with obligations imposed by the nationalregulatory authority pursuant to Articles 5 to 8.’;
3) Article 5 shall be amended as follows:
(a) paragraph 1 shall be amended as follows:
(ia) the first subparagraph shall be replaced by thefollowing:
‘1. National regulatory authorities shall, acting inpursuit of the objectives set out in Article 8 ofDirective 2002/21/EC (Framework Directive),encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequateaccess and interconnection, and the interoperability of services, exercising their responsibility in away that promotes efficiency, sustainable competition, efficient investment and innovation, and givesthe maximum benefit to end-users.’;
(ii) the following point shall be inserted:
‘(ab) in justified cases and to the extent that is necessary, the obligations on undertakings thatcontrol access to end-users to make their services interoperable.’;
(b) paragraph 2 shall be replaced by the following:
‘2. Obligations and conditions imposed in accordance with paragraph 1 shall be objective, transparent,proportionate and non-discriminatory, and shall beimplemented in accordance with the procedures referredto in Articles 6, 7 and 7a of Directive 2002/21/EC(Framework Directive).’;
(c) paragraph 3 shall be deleted;
(d)paragraph 4 shall be replaced by the following:
‘3. With regard to access and interconnection referredto in paragraph 1, Member States shall ensure that thenational regulatory authority is empowered to interveneat its own initiative where justified in order to secure thepolicy objectives of Article 8 of Directive 2002/21/EC(Framework Directive), in accordance with the provisions of this Directive and the procedures referred to inArticles 6 and 7, 20 and 21 of Directive 2002/21/EC(Framework Directive).’;
4) Article 6(2) shall be replaced by the following:
‘2. In the light of market and technological developments,the Commission may adopt implementing measures toamend Annex I. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred toin Article 14(3).’;
5) Article 7 shall be deleted;
6) Article 8 shall be amended as follows:
(a) in paragraph 1, the words ‘Articles 9 to 13’ shall bereplaced by the words ‘Articles 9 to 13a’;
(b) paragraph 3 shall be amended as follows:
(ia) the first subparagraph shall be amended as follows:
—
in the first indent, the words ‘Articles 5(1), 5(2)and 6’ shall be replaced by the words‘Articles 5(1) and 6’,
18.12.2009 EN
Official Journal of theEuropean Union 18.12.2009
—
in the second indent, ‘Directive 97/66/EC of theEuropean Parliament and of the Council of15 December 1997 concerning the processingof personal data and the protection of privacyin the telecommunications sector’ shall bereplaced by ‘Directive 2002/58/EC of the European Parliament and of the Council of 12 July2002 concerning the processing of personaldata and the protection of privacy in the electronic communications sector (Directive onprivacy and electronic communications).
OJ L 24, 30.1.1998, p. 1.
(**)
OJ L 201, 31.7.2002, p. 37.’;
(ii)
the second subparagraph shall be replaced by thefollowing:
“In exceptional circumstances, when a nationalregulatory authority intends to impose on operatorswith significant market power obligations for accessor interconnection other than those set out inArticles 9 to 13 in this Directive, it shall submit thisrequest to the Commission. The Commission shalltake utmost account of the opinion of the Body ofEuropeans Regulators for Electronic Communications (BEREC). The Commission, acting in accordance with Article 14(2), shall take a decisionauthorising or preventing the national regulatoryauthority from taking such measures.
Regulation (EC) No 1211/2009 of the EuropeanParliament and of the Council of 25 November2009 establishing the Body of European Regulators for Electronic Communications (BEREC) andthe Office.”;
7) Article 9 shall be amended as follows:
(a)paragraph 1 shall be replaced by the following:
“1. National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnectionand/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms andconditions for supply and use, including any conditionslimiting access to and/or use of services and applicationswhere such conditions are allowed by Member States inconformity with Community law, and prices.”;
(b) paragraph 4 shall be replaced by the following:
“4.Notwithstanding paragraph 3, where an operatorhas obligations under Article 12 concerning wholesalenetwork infrastructure access, national regulatoryauthorities shall ensure the publication of a referenceoffer containing at least the elements set out inAnnex II.”;
(c) paragraph 5 shall be replaced by the following:
“5. The Commission may adopt the necessaryamendments to Annex II in order to adapt it to technological and market developments. The measures,designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatoryprocedure with scrutiny referred to in Article 14(3). Inimplementing the provisions of this paragraph, theCommission may be assisted by BEREC.”;
8) Article 12 shall be amended as follows:
(a)in paragraph 1, point (a) shall be replaced by thefollowing:
“(a) to give third parties access to specified network elements and/or facilities, including access to networkelements which are not active and/or unbundledaccess to the local loop, to, inter alia, allow carrierselection and/or pre-selection and/or subscriber lineresale offer;”;
(b) in paragraph 1, point (f) shall be replaced by thefollowing:
“(f) to provide co-location or other forms of associatedfacilities sharing;”;
(c) in paragraph 1, the following point shall be added:
“(j) to provide access to associated services such as identity, location and presence service.”;
(d) in paragraph 2, the introductory phrase and point (a)shall be replaced by the following:
“2. When national regulatory authorities are considering the obligations referred in paragraph 1, and in particular when assessing how such obligations would beimposed proportionate to the objectives set out inArticle 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors: (a) the technical and economic viability of using orinstalling competing facilities, in the light of the rateof market development, taking into account thenature and type of interconnection and/or accessinvolved, including the viability of other upstreamaccess products such as access to ducts;”;
(e) in paragraph 2, points (c) and (d) shall be replaced by thefollowing:
“(c) the initial investment by the facility owner, takingaccount of any public investment made and therisks involved in making the investment; L 337/60 EN *) * ( Official Journal of theEuropean Union L 337/61 (d) the need to safeguard competition in the long term,with particular attention to economically efficientinfrastructure-based competition;”;
(f) the following paragraph 3 shall be added:
“3. When imposing obligations on an operator toprovide access in accordance with the provisions of thisArticle, national regulatory authorities may lay downtechnical or operational conditions to be met by the provider and/or beneficiaries of such access where necessaryto ensure normal operation of the network. Obligationsto follow specific technical standards or specificationsshall be in compliance with the standards and specifications laid down in accordance with Article 17 of Directive 2002/21/EC (Framework Directive).”;
9) Article 13(1) shall be replaced by the following:
“1. A national regulatory authority may, in accordancewith the provisions of Article 8, impose obligations relatingto cost recovery and price controls, including obligations forcost orientation of prices and obligations concerning costaccounting systems, for the provision of specific types ofinterconnection and/or access, in situations where a marketanalysis indicates that a lack of effective competition meansthat the operator concerned may sustain prices at an excessively high level, or may apply a price squeeze, to the detriment of end-users. To encourage investments by theoperator, including in next generation networks, nationalregulatory authorities shall take into account the investmentmade by the operator, and allow him a reasonable rate ofreturn on adequate capital employed, taking into account anyrisks specific to a particular new investment networkproject.”; 10) the following Articles shall be inserted:
“Article 13a
Functional separation
1. Where the national regulatory authority concludes thatthe appropriate obligations imposed under Articles 9 to 13have failed to achieve effective competition and that there areimportant and persisting competition problems and/or market failures identified in relation to the wholesale provision ofcertain access product markets, it may, as an exceptionalmeasure, in accordance with the provisions of the secondsubparagraph of Article 8(3), impose an obligation on vertically integrated undertakings to place activities related to thewholesale provision of relevant access products in an independently operating business entity.
That business entity shall supply access products and servicesto all undertakings, including to other business entities withinthe 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 imposean obligation for functional separation, it shall submit a proposal 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 that there is no or little prospectof effective and sustainable infrastructure-based competition within a reasonable time-frame;
(c) an analysis of the expected impact on the regulatoryauthority, on the undertaking, in particular on the workforce of the separated undertaking and on the electroniccommunications sector as a whole, and on incentives toinvest in a sector as a whole, particularly with regard tothe need to ensure social and territorial cohesion, and onother stakeholders including, in particular, the expectedimpact on competition and any potential entailingeffects on consumers;
(d) an analysis of the reasons justifying that this obligationwould be the most efficient means to enforce remediesaimed at addressing the competition problems/marketsfailures identified.
3. The draft measure shall include the following elements:
(a) the precise nature and level of separation, specifying inparticular the legal status of the separate business entity;
(b) an identification of the assets of the separate businessentity, and the products or services to be supplied bythat entity;
(c) the governance arrangements to ensure the independence of the staff employed by the separate businessentity, and the corresponding incentive structure;
(d) rules for ensuring compliance with the obligations;
(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. 18.12.2009 EN Official Journal of theEuropean Union 18.12.2009
4. Following the Commission’s decision on the draft measure taken in accordance with Article 8(3), the national regulatory authority shall conduct a coordinated analysis of thedifferent markets related to the access network in accordancewith the procedure set out in Article 16 of Directive2002/21/EC (Framework Directive). On the basis of its assessment, the national regulatory authority shall impose, maintain, amend or withdraw obligations, in accordance withArticles 6 and 7 of Directive 2002/21/EC (FrameworkDirective).
5. An undertaking on which functional separation hasbeen imposed may be subject to any of the obligations identified in Articles 9 to13 in any specific market where it hasbeen designated as having significant market power in accordance with Article 16 of Directive 2002/21/EC (FrameworkDirective), or any other obligations authorised by the Commission pursuant to Article 8(3).
Article 13b
Voluntary separation by a vertically integratedundertaking
1. Undertakings which have been designated as havingsignificant market power in one or several relevant marketsin accordance with Article 16 of Directive 2002/21/EC(Framework Directive) shall inform the national regulatoryauthority in advance and in a timely manner, in order toallow the national regulatory authority to assess the effect ofthe intended transaction, when they intend to transfer theirlocal access network assets or a substantial part thereof to aseparate legal entity under different ownership, or to establish a separate business entity in order to provide to all retailproviders, including its own retail divisions, fully equivalentaccess products. Undertakings shall also inform the national regulatoryauthority of any change of that intent as well as the final outcome of the process of separation.
2. The national regulatory authority shall assess the effectof the intended transaction on existing regulatory obligationsunder Directive 2002/21/EC (Framework Directive). For that purpose, the national regulatory authority shall conduct a coordinated analysis of the different markets related tothe access network in accordance with the procedure set outin Article 16 of Directive 2002/21/EC (Framework Directive). On the basis of its assessment, the national regulatory authority shall impose, maintain, amend or withdraw obligations, inaccordance with Articles 6 and 7 of Directive 2002/21/EC(Framework Directive).
3. The legally and/or operationally separate businessentity may be subject to any of the obligations identified inArticles 9 to 13 in any specific market where it has been designated as having significant market power in accordancewith Article 16 of Directive 2002/21/EC (Framework Directive), or any other obligations authorised by the Commissionpursuant to Article 8(3).”;
11) Article 14 shall be amended as follows:
(a) paragraph 3 shall be replaced by the following:
“3. Where reference is made to this paragraph,Article 5a(1) to (4) and Article 7 of Decision1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.”;
(b) paragraph 4 shall be deleted;
12) Annex II shall be amended as follows:
(a) the title shall be replaced by the following:
“MINIMUM LIST OF ITEMS TO BE INCLUDED IN A REFERENCE OFFER FOR WHOLESALE NETWORK INFRASTRUCTURE ACCESS, INCLUDING SHARED OR FULLYUNBUNDLED ACCESS TO THE LOCAL LOOP AT AFIXED LOCATION TO BE PUBLISHED BY NOTIFIEDOPERATORS WITH SIGNIFICANT MARKET POWER(SMP);”
(b) definition (a) shall be replaced by the following:
“(a) “local sub-loop” means a partial local loop connecting the network termination point to a concentration point or a specified intermediate access point inthe fixed public electronic communicationsnetwork;”
(c) definition (c) shall be replaced by the following:
“(c) “full unbundled access to the local loop” means theprovision to a beneficiary of access to the local loopor local sub-loop of the SMP operator allowing theuse of the full capacity of the networkinfrastructure;”
(d) definition (d) shall be replaced by the following:
“(d) “shared access to the local loop” means the provision to a beneficiary of access to the local loop orlocal sub-loop of the SMP operator, allowing theuse of a specified part of the capacity of the networkinfrastructure such as a part of the frequency or anequivalent;”
(e) in part A, points 1, 2 and 3 shall be replaced by thefollowing:
“1. Network elements to which access is offered covering in particular the following elements togetherwith appropriate associated facilities:
'(a) unbundled access to local loops (fulland shared); L337/62 EN Official Journal of theEuropean Union L 337/63
'(b) unbundled access to local sub-loops (fulland shared), including, when relevant, access tonetwork elements which are not active for thepurpose of roll-out of backhaul networks;
'(c) where relevant, duct access enabling the rollout of access networks.
'2. Information concerning the locations of physicalaccess sites including cabinets and distributionframes, availability of local loops, sub-loops andbackhaul in specific parts of the access network andwhen relevant, information concerning the locations of ducts and the availability within ducts;
'3. Technical conditions related to access and use oflocal loops and sub-loops, including the technicalcharacteristics of the twisted pair and/or opticalfibre and/or equivalent, cable distributors, and associated facilities and, when relevant, technical conditions related to access to ducts;”
(f) in part B, point 1 shall be replaced by the following:
“1. Information on the SMP operator’s existing relevantsites or equipment locations and planned updatethereof. Availability of this information may be restricted tointerested parties only, in order to avoid public security concerns.”.
Article 3
Amendments to Directive 2002/20/EC (AuthorisationDirective) Directive 2002/20/EC is hereby amended as follows:
1) Article 2(2) shall be replaced by the following:
“2. The following definition shall also apply:
“general authorisation” means a legal framework establishedby the Member State ensuring rights for the provision of electronic communications networks or services and layingdown sector specific obligations that may apply to all or tospecific types of electronic communications networks andservices, in accordance with this Directive.”;
2) In Article 3(2), the following subparagraph shall be added:
“Undertakings providing cross-border electronic communications services to undertakings located in several MemberStates shall not be required to submit more than one notification per Member State concerned.”
3) Article 5 shall be replaced by the following:
“Article 5 Rights of use for radio frequencies and numbers
1. Member States shall facilitate the use of radio frequencies under general authorisations. Where necessary, MemberStates may grant individual rights of use in order to:
avoid harmful interference,-- ensure technical quality of service,- safeguard efficient use of spectrum, or-- fulfil other objectives of general interest as defined byMember States in conformity with Community law.
2. Where it is necessary to grant individual rights of usefor radio frequencies and numbers, Member States shall grantsuch rights, upon request, to any undertaking for the provision of networks or services under the general authorisationreferred to in Article 3, subject to the provisions of Articles 6,7 and 11(1)(c) of this Directive and any other rules ensuringthe efficient use of those resources in accordance with Directive 2002/21/EC (Framework Directive). Without prejudice to specific criteria and procedures adoptedby Member States to grant rights of use of radio frequenciesto providers of radio or television broadcast content serviceswith a view to pursuing general interest objectives in conformity with Community law, the rights of use for radio frequencies and numbers shall be granted through open,objective, transparent, non-discriminatory and proportionateprocedures, and, in the case of radio frequencies, in accordance with the provisions of Article 9 of Directive2002/21/EC (Framework Directive). An e ception to therequirement of open procedures may apply in cases wherethe granting of individual rights of use of radio frequenciesto the providers of radio or television broadcast content services is necessary to achieve a general interest objective asdefined by Member States in conformity with Communitylaw. When granting rights of use, Member States shall specifywhether those rights can be transferred by the holder of therights, and under which conditions. In the case of radio frequencies, such provision shall be in accordance withArticles 9 and 9b of Directive 2002/21/EC (FrameworkDirective). Where Member States grant rights of use for a limited periodof time, the duration shall be appropriate for the service concerned in view of the objective pursued taking due accountof the need to allow for an appropriate period for investmentamortisation. 18.12.2009 EN Official Journal of theEuropean Union 18.12.2009 Where individual rights to use radio frequencies are grantedfor 10 years or more and such rights may not be transferredor leased between undertakings pursuant to Article 9b ofDirective 2002/21/EC (Framework Directive) the competentnational 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 theholder of the right. If those criteria are no longer applicable,the individual right of use shall be changed into a generalauthorisation for the use of radio frequencies, subject to priornotice and after a reasonable period, or shall be made transferable or leaseable between undertakings in accordance withArticle 9b of Directive 2002/21/EC (Framework Directive).
3. Decisions on the granting of rights of use shall be taken,communicated and made public as soon as possible afterreceipt of the complete application by the national regulatoryauthority, within three weeks in the case of numbers thathave been allocated for specific purposes within the nationalnumbering plan and within six weeks in the case of radio frequencies that have been allocated to be used by electroniccommunications services within the national frequency plan.The latter time limit shall be without prejudice to any applicable international agreements relating to the use of radio frequencies or of orbital positions.
4. Where it has been decided, after consultation withinterested parties in accordance with Article 6 of Directive2002/21/EC (Framework Directive), that rights for use ofnumbers of exceptional economic value are to be grantedthrough competitive or comparative selection procedures,Member States may extend the maximum period of threeweeks by up to a further three weeks.
With regard to competitive or comparative selection procedures for radio frequencies, Article 7 shall apply.
5. Member States shall not limit the number of rights ofuse to be granted except where this is necessary to ensure theefficient use of radio frequencies in accordance with Article 7.
6. Competent national authorities shall ensure that radiofrequencies are efficiently and effectively used in accordancewith Articles 8(2) and 9(2) of Directive 2002/21/EC (Framework Directive). They shall ensure competition is not distorted by any transfer or accumulation of rights of use ofradio frequencies. For such purposes, Member States maytake appropriate measures such as mandating the sale or thelease of rights to use radio frequencies.”;
4) Article 6 shall be amended as follows:
(a) paragraph 1 shall be replaced by the following:
“1. The general authorisation for the provision ofelectronic communications networks or servicesand the rights of use for radio frequencies and rights ofuse for numbers may be subject only to the conditionslisted in the Annex. Such conditions shall be non-discriminatory, proportionate and transparent and, inthe case of rights of use for radio frequencies, shall be inaccordance with Article 9 of Directive 2002/21/EC(Framework Directive).”;
(b) in paragraph 2, the words “Articles 16, 17, 18 and 19 ofDirective 2002/22/EC (Universal Service Directive)” shallbe replaced by the words “Article 17 of Directive2002/22/EC (Universal Service Directive)”;
5) Article 7 shall be amended as follows:
(a) paragraph 1 shall be amended as follows:
(ia) the introductory phrase shall be replaced by thefollowing:
“1. Where a Member State is consideringwhether to limit the number of rights of use to begranted for radio frequencies or whether to extendthe duration of existing rights other than in accordance with the terms specified in such rights, it shallinter alia:”;
(ii) point (c) shall be replaced by the following:
“(c) publish any decision to limit the granting ofrights of use or the renewal of rights of use,stating the reasons therefor;”;
(b) paragraph 3 shall be replaced by the following:
“3. Where the granting of rights of use for radio frequencies needs to be limited, Member States shall grantsuch rights on the basis of selection criteria which mustbe objective, transparent, non-discriminatory and proportionate. Any such selection criteria must give dueweight to the achievement of the objectives of Article 8of Directive 2002/21/EC (Framework Directive) and ofthe requirements of Article 9 of that Directive.”;
(c) in paragraph 5, the words “Article 9” shall be replaced bythe words “Article 9b”;
6) Article 10 shall be amended as follows:
(a) paragraph 1, 2 and 3 shall be replaced by the following:
“1. National regulatory authorities shall monitor andsupervise compliance with the conditions of the generalauthorisation or of rights of use and with the specificobligations referred to in Article 6(2), in accordance withArticle 11. L337/64 EN Official Journal of theEuropean Union L 337/65 National regulatory authorities shall have the power torequire undertakings providing electronic communications networks or services covered by the general authorisation or enjoying rights of use for radio frequencies ornumbers to provide all information necessary to verifycompliance with the conditions of the general authorisation or of rights of use or with the specific obligationsreferred to in Article 6(2), in accordance with Article 11.
2. Where a national regulatory authority finds that anundertaking does not comply with one or more of theconditions of the general authorisation or of rights ofuse, or with the specific obligations referred to inArticle 6(2), it shall notify the undertaking of those findings and give the undertaking the opportunity to state itsviews, within a reasonable time limit.
3. The relevant authority shall have the power torequire the cessation of the breach referred to in paragraph 2 either immediately or within a reasonable timelimit and shall take appropriate and proportionate measures aimed at ensuring compliance. In this regard, Member States shall empower the relevantauthorities to impose:
(a) dissuasive financial penalties where appropriate,which may include periodic penalties having retroactive effect; and
(b) orders to cease or delay provision of a service orbundle of services which, if continued, would resultin significant harm to competition, pending compliance with access obligations imposed following amarket analysis carried out in accordance withArticle 16 of Directive 2002/21/EC (FrameworkDirective). The measures and the reasons on which they arebased shall be communicated to the undertakingconcerned without delay and shall stipulate a reasonable period for the undertaking to comply withthe measure.”;
(b) paragraph 4 shall be replaced by the following:
“4. Notwithstanding the provisions of paragraphs 2and 3, Member States shall empower the relevant authority to impose financial penalties where appropriate onundertakings for failure to provide information in accordance with the obligations imposed underArticle 11(1)(a) or (b) of this Directive and Article 9 ofDirective 2002/19/EC (Access Directive) within a reasonable period stipulated by the national regulatoryauthority.”;
(c) paragraph 5 shall be replaced by the following:
“5. In cases of serious or repeated breaches of theconditions of the general authorisation or of the rightsof use, or specific obligations referred to in Article 6(2),where measures aimed at ensuring compliance asreferred to in paragraph 3 of this Article have failed,national regulatory authorities may prevent an undertaking from continuing to provide electronic communications networks or services or suspend or withdraw rightsof use. Sanctions and penalties which are effective, proportionate and dissuasive may be applied to cover theperiod of any breach, even if the breach has subsequentlybeen rectified.”;
(d) paragraph 6 shall be replaced by the following:
“6. Irrespective of the provisions of paragraphs 2, 3and 5, where the relevant authority has evidence of abreach of the conditions of the general authorisationrights of use or of the specific obligations referred to inArticle 6(2) that represents an immediate and seriousthreat to public safety, public security or public health orwill create serious economic or operational problems forother providers or users of electronic communicationsnetworks or services or other users of the radio spectrum, it may take urgent interim measures to remedy thesituation in advance of reaching a final decision. Theundertaking concerned shall thereafter be given a reasonable opportunity to state its views and propose anyremedies. Where appropriate, the relevant authority mayconfirm the interim measures, which shall be valid for amaximum of 3 months, but which may, in circumstances where enforcement procedures have not beencompleted, be extended for a further period of up tothree months.”;
7) Article 11, paragraph 1 shall be amended as follows:
(a) point (a) shall be replaced by the following:
“(a) systematic or case-by-case verification of compliance with conditions 1 and 2 of Part A, conditions2 and 6 of Part B and conditions 2 and 7 of Part Cof the Annex and of compliance with obligations asreferred to in Article 6(2);”;
(b) the following points shall be added:
“(g) safeguarding the efficient use and ensuring the effective management of radio frequencies;
(h) evaluating future network or service developmentsthat could have an impact on wholesale servicesmade available to competitors.”; 18.12.2009 EN L 337/66 EN Official Journal of theEuropean Union 18.12.2009
(c) the second subparagraph shall be replaced by thefollowing:
“The information referred to in points (a), (b), (d), (e), (f),(g) and (h) of the first subparagraph may not be requiredprior to, or as a condition for, market access.”;
8) Article 14 shall be replaced by the following:
“Article 14 Amendment of rights and obligations
1. Member States shall ensure that the rights, conditionsand procedures concerning general authorisations and rightsof use or rights to install facilities may only be amended inobjectively justified cases and in a proportionate manner, taking into consideration, where appropriate, the specific conditions applicable to transferable rights of use for radiofrequencies. Except where proposed amendments are minorand have been agreed with the holder of the rights or generalauthorisation, notice shall be given in an appropriate manner of the intention to make such amendments and interested parties, including users and consumers, shall be alloweda sufficient period of time to express their views on the proposed amendments, which shall be no less than four weeksexcept in exceptional circumstances.
2. Member States shall not restrict or withdraw rights toinstall facilities or rights of use for radio frequencies beforeexpiry of the period for which they were granted exceptwhere justified and where applicable in conformity with theAnnex and relevant national provisions regarding compensation for withdrawal of rights.”;
9) Article 15(1) shall be replaced by the following:
“1. Member States shall ensure that all relevant information on rights, conditions, procedures, charges, fees and decisions concerning general authorisations, rights of use andrights to install facilities is published and kept up to date inan appropriate manner so as to provide easy access to thatinformation for all interested parties.”;
10) in Article 17 paragraphs 1 and 2 shall be replaced by thefollowing:
“1. Without prejudice to Article 9a of Directive2002/21/EC (Framework Directive), Member States shallbring general authorisations and individual rights of usealready in existence on 31 December 2009 into conformitywith Articles 5, 6, 7, and the Annex of this Directive19 December 2011 at the latest.
"2. Where application of paragraph 1 results in a reductionof the rights or an extension of the general authorisations andindividual rights of use already in existence, Member Statesmay extend the validity of those authorisations and rightsuntil 30 September 2012 at the latest, provided that therights of other undertakings under Community law are notaffected thereby. Member States shall notify such extensionsto the Commission and state the reasons therefor.”;
*11) the Annex shall be amended as set out in the Annex to thisDirective.
Article 4
Repeal
Regulation (EC) No 2887/2000 is hereby repealed.
Article 5
Transposition
1. Member States shall adopt and publish by 25 May 2011 thelaws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to theCommission the text of such provisions. They shall apply those measures from 26 May 2011. When Member States adopt these measures, they shall contain areference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods ofmaking such reference shall be laid down by Member States.
2. Member States shall communicate to the Commission thetext of the main provisions of national law which they adopt inthe field covered by this Directive.
Article 6
Entry into force
This Directive shall enter into force on the day following its publication in the Official Journal of the European Union.
Article 7
Addressees
This Directive is addressed to the Member States. Done at Strasbourg, 25 November 2009. For the European Parliament
The President
J. BUZEK
For the Council
The President
Å. TORSTENSSON
Official Journal of theEuropean Union L 337/67
ANNEX
The Annex to Directive 2002/20/EC (Authorisation Directive) is amended as follows:
1. The first paragraph is replaced by the following heading:
‘The conditions listed in this Annex provide the maximum list of conditions which may be attached to general authorisations (Part A), rights to use radio frequencies (Part B) and rights to use numbers (Part C) as referred to in Article 6(1)and Article 11(1)(a), within the limits allowed under Articles 5, 6, 7, 8 and 9 of Directive 2002/21/EC (the FrameworkDirective).’;
2. Part A is amended as follows:
(a) point 4 is replaced by the following:
‘4. Accessibility by end users of numbers from the national numbering plan, numbers from the European Telephone Numbering Space, the Universal International Freephone Numbers, and, where technically and economically feasible, from numbering plans of other Member States, and conditions in conformity withDirective 2002/22/EC (Universal Service Directive).’;
(b) point 7 is replaced by the following:
‘7. Personal data and privacy protection specific to the electronic communications sector in conformity withDirective 2002/58/EC of the European Parliament and of the Council (Directive on privacy and electroniccommunications)
(c) point 8 is replaced by the following:
‘8. Consumer protection rules specific to the electronic communications sector, including conditions in conformity with Directive 2002/22/EC (Universal Service Directive), and conditions on accessibility for userswith disabilities in accordance with Article 7 of that Directive.’;
(d) in point 11, the words ‘Directive 97/66/EC’ are replaced by the words ‘Directive 2002/58/EC’;
(e) the following point is inserted:
‘11a. Terms of use for communications from public authorities to the general public for warning the public ofimminent threats and for mitigating the consequences of major catastrophes.’;
(f) point 12 is replaced by the following:
‘12. Terms of use during major disasters or national emergencies to ensure communications between emergencyservices and authorities.’;
(g) point 16 is replaced by the following:
‘16. Security of public networks against unauthorised access according to Directive 2002/58/EC (Directive on Privacy and electronic communications).’;
(h) The following point is added:
‘19.Transparency obligations on public communications network providers providing electronic communications services available to the public to ensure end-to-end connectivity, in conformity with the objectives andprinciples set out in Article 8 of Directive 2002/21/EC (Framework Directive), disclosure regarding any conditions limiting access to and/or use of services and applications where such conditions are allowed by Member States in conformity with Community law, and, where necessary and proportionate, access by nationalregulatory authorities to such information needed to verify the accuracy of such disclosure.’; 18.12.2009 EN
3. part B is amended as follows:
(a) point 1 is replaced by the following:
‘1. Obligation to provide a service or to use a type of technology for which the rights of use for the frequencyhas been granted, including, where appropriate, coverage and quality requirements.’;
(b) point 2 is replaced with the following:
‘2. Effective and efficient use of frequencies in conformity with Directive 2002/21/EC (Framework Directive).’;
(c) the following point is added:
‘9. Obligations specific to an experimental use of radio frequencies.’;
4. in part C, point 1 is replaced by the following:
‘1. Designation of service for which the number shall be used, including any requirements linked to the provision ofthat service and, for the avoidance of doubt, tariff principles and maximum prices that can apply in the specificnumber range for the purposes of ensuring consumer protection in accordance with Article 8(4)(b) of Directive2002/21/EC (Framework Directive).’. Official Journal of the European Union L 337/69
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