Authorisation of electronic communications networks and services

This directive creates a legal framework to ensure the freedom to provide electronic communications networks and services throughout the European Union.

ACT

Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive)

SUMMARY

The authorisation directive is part of the ’telecoms package’ which, with 4 other directives (‘framework’, ‘access’, ‘universal service’ and ‘privacy and electronic communications’), defines the regulatory framework that aims to make the electronic communications networks and services sector more competitive.

In 2009, the telecoms package was amended by the better regulation and the citizens’ rights’ directives, as well as by the creation of the Body of European Regulators for Electronic Communications (BEREC).

Scope, objective and general principle

The directive covers authorisations for all electronic communications networks and services, whether they are provided to the public or not. It applies to the granting of rights to use radio frequencies where such use involves the provision of an electronic communications network or service, normally for remuneration.

The aim is to harmonise the market for electronic communications networks and services by limiting regulation to the minimum necessary.

The main innovation is the replacement of individual licences by a general authorisation for all electronic communications networks or services, alongside a special scheme for attributing frequencies and numbers.

Thus the provision of electronic communications networks or services may only be subject to a general authorisation without the need to obtain an explicit decision or any other administrative act by the national regulatory authority (NRA), thus limiting the procedure to just one notification for the companies concerned.

Rights derived from the general authorisation

The general authorisation gives companies the right to provide electronic communications networks and services. When they provide electronic communications networks or services to the public, they are entitled to:

—	negotiate interconnection with other providers in the EU;

—	obtain access to or interconnection from other providers; and

—	be designated to provide certain universal service functions.

Rights of use for radio frequencies and numbers

EU countries shall facilitate the use of radio frequencies under general authorisations but, where necessary, may make the use of radio frequencies subject to the grant of individual rights with a view to:

—	avoiding harmful interference;

—	ensuring the technical quality of service;

—	safeguarding efficient use of spectrum;

—	fulfilling other general interest objectives defined by EU countries.

The rights of use for radio frequencies and numbers must be granted through open, objective, transparent, non-discriminatory and proportionate procedures.

Decisions on rights of use must be taken and made public as soon as possible after receipt of the complete application by the NRA.

Conditions attached to the general authorisation and to specific rights of use

The general authorisation and the rights of use may be subject only to the conditions listed in the annex to the directive, for example:

—	financial contributions to the funding of universal service;

—	interoperability of services and interconnection of networks;

—	accessibility and portability of numbers, where portability means that users may keep their telephone number when they change operator;

—	environmental and town and country planning requirements;

—	personal data and privacy protection;

—	the obligation to transmit certain television and radio programmes (‘must carry’);

—	the possible imposition of administrative charges on undertakings;

—	restrictions concerning the broadcast of illegal content.

Limiting the rights of use for radio frequencies

Granting of limited rights of use for radio frequencies must be subject to objective, transparent, non-discriminatory and proportionate selection criteria.

EU countries may limit the number of rights of use to be granted for radio frequencies or extend the duration of existing rights, subject to certain conditions and procedures, such as consultation of all interested parties, publication of any decisions, together with the reasons for it, and the review, at reasonable intervals, of the limitation.

Where an EU country concludes that further rights of use for radio frequencies can be granted, it must publish that conclusion and invite applications for such rights.

Compliance with conditions

The NRAs monitor and supervise compliance with the requirements of the general authorisation or of rights of use and specific obligations. Where an undertaking does not comply with one or more of these conditions and does not remedy the breaches within the set period, the relevant authorities may be empowered to impose orders to cease the breach or financial penalties. In cases of serious and repeated breaches, they may prevent an undertaking from continuing to provide a network or service or suspend or withdraw rights of use.

Administrative charges and fees

The NRAs may impose administrative charges on companies providing a service or a network under the general authorisation or to whom a right of use has been granted. These charges shall cover costs incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and specific obligations, and may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as other regulatory work. Their imposition requires NRAs to publish a yearly overview of their administrative costs and of the total sum of the charges collected.

The competent authority may also charge a fee for the rights of use of radio frequencies and for rights to install facilities.

RELATED ACTS

Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (Official Journal L 337 of 18 December 2009, pp. 11-36).

Commission guidelines on market analysis and assessment of significant market power pursuant to the Community regulatory framework for electronic communications networks and services (Official Journal C 165 of 11 July 2002 pp. 6-31).

In compliance with the new regulatory framework for communications services, these guidelines, which were adopted in July 2002, set out the principles on which the national regulatory authorities must base their market analysis in order to guarantee effective competition.

Proposal for a Regulation of the European Parliament and of the Council laying down measures concerning the European single market for electronic communications and to achieve a Connected Continent, and amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations (EC) No 1211/2009 and (EU) No 531/2012 (COM(2013) 627 final of 11 September 2013 - not published in the Official Journal).

last update 10.09.2015