52001PC0372

Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL on the authorisation of electronic communications networks and services (presented by the Commission pursuant to Article 250(2) of the EC Treaty)

EXPLANATORY MEMORANDUM

1. Introduction

On 28.08.2000, the Commission submitted a proposal for a European Parliament and Council Directive on the authorisation of electronic communications networks and services (COM(2000)386) for adoption by the co-decision procedure in accordance with Article 251 of the Treaty.

The Economic and Social Committee delivered its opinion on 24 January 2001

The Committee of the Regions informed the Council and the European Parliament, by letter dated 16/02/2001, that it would not deliver an opinion on the subject.

On 1 March 2001 the European Parliament adopted in first reading a legislative resolution containing 23 amendments to the Commission proposal. On this occasion the Commission gave its position on each amendment, indicating which amendments it could accept in full, which amendments it could accept in part or in principle , and which amendments could not be included.

In the light of this the Commission has drafted this amended proposal.

2. Amendments by the European Parliament which the Commission cannot support

The Commission has not accepted certain amendments of the European Parliament, for the following reasons:

- Amendments which duplicate provisions of the Framework Directive or are not in the scope of this Directive

Amendment 4 adds a recital which suggests that any content related conditions could be imposed on transmission services providers in addition to the conditions listed in the Directive. Content requirements, which are outside the scope of this Directive, should be imposed on providers of content services not on providers of transmission services. The only content related conditions which can be imposed on transmission service providers are those listed in points 6 and 9 of part A of the Annex and in point 1 of part B of the Annex.

Amendment 14 would duplicate Article 4 of the proposed Directive on a common regulatory framework for electronic communications networks and services. Moreover, the right of appeal exists for all decisions by national regulatory authorities, not just for those regarding numbers and radio frequencies.

Amendment 15 underlines the need to strike a better balance between frequencies used by public and by commercial service providers. Although this can be supported as a policy aim, it would not be appropriate to insert this objective in a Directive that deals with the assignment of radio frequencies after they have already been allocated for specific purposes in the national frequency plan. This issue should be dealt with in the proposed Decision on a regulatory framework for radio spectrum policy in the European Community.

The professional secrecy requirement proposed in amendment 19 is already covered by Article 5 of the proposed Directive on a common regulatory framework for electronic communications networks and services.

- Amendments which delete or add requirements in a manner that is not consistent with the basic approach of the proposed Directive

Amendments 7 and 27 delete the turn-over related distribution key as proposed by the Commission. The intention of the turn-over repartition key proposed by the Commission is to ensure that the administrative charges (which in some Member States are substantial) are not equally split between the number of operators involved. This would have a discriminatory effect to the advantage of incumbents. It is also important to make sure that Member States do not replace the existing charging method, namely calculation of costs per individual license, by something which is complicated and costly. Nor should administrative charge systems based on service categories or on territorial coverage be maintained since these criteria are not consistent with the approach of the general authorisation. The turn-over based key meets all these concerns and should therefore be maintained.

Through the first sentence of amendment 8 and the first part of amendment 21, Member States would be required to give preference to mechanisms other than fees to ensure the optimal use This may be appropriate in certain cases, but it cannot be transformed into a general rule since fees of an appropriate level may very often be the most transparent and simple instrument to ensure optimal use.

- Amendments which are confusing or legally problematic

Amendment 9 seems to suggest that national regulatory authorities need to summarise information about conditions and procedures regarding rights of way. This would be a considerable additional burden. What is required is that they make all information accessible via a user friendly means , for example by creating a website with hyperlinks to the relevant information held by other levels of government.

Amendment 11 inappropriately deletes the reference to public health which is part of Article 46 of the Treaty. No specific authorisations are needed to negotiate interconnection as suggested in the first part of amendment 16. The Commission does not need a new legal basis to publish studies as proposed in the last part of amendment 21.

3. Explanation of amended proposal based on amendments submitted by the European Parliament

3.1. Clarification of the text

European Parliament amendments 1, 2, 3, 5, second part of 11, 12, 13, first and second part of 14, second part of 27, 23, 24, 25 and 26 all contribute to clarify and strengthen the text of the original Commission proposal and have therefore been incorporated , in some cases subject to minor drafting changes.

3.2. Strengthening provisions regarding rights of way

The European Parliament has expressed particular concern regarding the difficulties faced by electronic communications network providers, especially those who do not already have a nation wide network, to obtain the necessary rights of way for rolling out their infrastructure. Since the promotion of infrastructure competition is an important aspect of promoting competition in the electronic communications sector in general, the Commission shares the concerns of the European Parliament. It is of great importance that Member States try to facilitate applications for rights of way and assist network providers in this often cumbersome process to the best of their abilities. Therefore, the original Commission proposal already included a requirement for national regulatory authorities to issue declarations to help operators in obtaining rights of way and the requirement to keep a register of all relevant information regarding such rights. On the basis of European Parliament's amendments 8 and 28, Recital 16 and Article 15 have been strengthened and a new paragraph has been added to Article 14 to ensure that rights of way are not seriously restricted or withdrawn unless this is necessary for public safety or public security reasons and that in such cases undertakings concerned should receive compensation. Finally, the basic idea of second part of amendment 16, namely to give undertakings a right of appeal against decisions on rights of way and against undue delay of such decisions, has been included in Article 10 of the Directive on a common regulatory framework for electronic communications networks and services. In this Directive a new recital 12a has been added to clarify this point.

3.3. Sanctions in case of breach of conditions

The Commission recognises the need to clarify Article 10 on compliance with conditions with regard to cases of repeated breaches of conditions, as suggested by the European Parliament in its amendment 18. For this purpose a new provision has been added in paragraph 2 of Article 10 to allow national regulatory authorities in case of a repeated breach of a condition, to shorten the normal period of one month for undertakings to state their views or remedy such a breach. In any case, the national regulatory authority is free to impose heavier penalties for repeated breaches. However, the Commission felt it would be useful to add a new paragraph in Article 10 stipulating that in case of serious and repeated breaches and where other measures have failed, national regulatory authorities may prevent an undertaking from continuing to provide electronic communications services or may withdraw or suspend rights of use.

3.4. More harmonised approach to usage fees

The European Parliament has expressed its concern about the divergence in current national systems for usage fees and fears that this create barriers to the internal market. In order to provide certain minimal criteria for a more harmonised approach the European Parliament proposed to reinforce Article 13 on fees for rights of use and rights of way by ensuring that systems for usage fees do not run counter to the general policy objectives for the electronic communications sector as set out in Article 7 of the Framework Directive. Moreover, in its amendment 21 the European Parliament proposed to submit schemes for usage fees to the transparency procedure of Article 6 of the proposed Directive on a common regulatory framework for electronic communications networks and services. The Commission has incorporated these elements of amendment 21 in Article 13 of its amended proposal.

The Commission has also addressed the problem of serious difficulties that undertakings may face regarding the financing of very high one-off amounts resulting from auctions of radio frequencies. Clearly, the purpose of usage fees should be to ensure the optimal use of resources. Very high up-front fees could in practice lead to selection on the basis of criteria which are not related to ensuring optimal use of the resource. The Commission has therefore introduced a new paragraph 2 in Article 13 which, while being less prescriptive than the provision proposed by the European Parliament, ensures that the principal objective of any system of usage fees is not lost from sight.

2000/0188 (COD)

Amended proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL on the authorisation of electronic communications networks and services.

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission [1],

[1] OJ C 365, 19.12.2000, p. 230.

Having regard to the opinion of the Economic and Social Committee [2],

[2] OJ C 123, 25.4.2001, p. 55.

Having regard to the opinion of the Committee of the Regions [3],

[3] OJ C (by letter of 16.02.2001 the Regions Committee has indicated that it will not deliver its opinion on this Directive)

Acting in accordance with the procedure laid down in Article 251 of the Treaty [4],

[4] OJ C

Whereas:

(1) The outcome of the public consultation on the 1999 review of the regulatory framework for electronic communications, as reflected in the Commission Communication of 26 April 2000 [5], and the findings reported by the Commission in its communications on the fifth and sixth reports on the implementation of the telecommunications regulatory package has confirmed the need for a more harmonised and less onerous market access regulation for electronic communications services and networks throughout the Community.

[5] COM(2000) 239.

(2) Convergence between different electronic communications services and networks and their technologies requires the establishment of an authorisation system covering all comparable services in a similar way regardless of the technologies used.

(3) The least onerous system possible should be used to allow the provision of electronic communications services and networks in order to stimulate the development of new electronic communications services and pan-European communications networks and services and to allow service providers and consumers to benefit from the economies of scale of the single market.

(4) Those aims can be best achieved by general authorisation of all electronic communications services and networks without requiring any explicit decision or administrative act by the national regulatory authority and by limiting any procedural requirements to notification only.

(5) It is necessary to include the rights of undertakings under general authorisations explicitly in such authorisations in order to ensure a level playing field throughout the Community and to facilitate cross border negotiation of interconnection between public communications networks.

(6) The granting of specific rights may continue to be necessary for the use of radio frequencies and numbers, including short codes, from the national numbering plan. Rights to numbers may also be allocated from a European numbering plan, including for example the virtual country code '3883' which has been attributed to Member countries of the European Conference of Post and Telecommunications (CEPT). Those rights of use should not be restricted except where this is unavoidable in view of the scarcity of radio frequencies and the need to ensure the efficient use thereof.

(7) The conditions which may be attached to the general authorisation and to the specific rights of use, should be limited to what is strictly necessary to ensure compliance with essential requirements and obligations under Community law.

(8) Specific obligations which may be imposed on providers of electronic communications services and networks in accordance with Community law by virtue of their significant market power as defined in Directive .../.../EC of the European Parliament and of the Council of ... [on a common regulatory framework for electronic communications networks and services] [6] should be imposed separately from the general rights and obligations under the general authorisation.

[6] OJ L

(9) The general authorisation should contain only conditions which are specific to the electronic communications sector. It should not be made subject to conditions which are already applicable by virtue of other existing national law which is not specific to the electronic communications sector. Nevertheless, the national regulatory authorities may inform network operators and service providers about other legislation concerning their business, for instance through references on their websites.

(10) Where the demand for radio frequencies in a specific range exceeds their availability, appropriate and transparent procedures should be followed for the assignment of such frequencies in order to avoid any discrimination and optimise use of those scarce resources.

(11) Where the harmonised assignment of radio frequencies to particular undertakings has been agreed at European level, Member States should strictly implement such agreements in the granting of rights of use of radio frequencies from the national frequency usage plan.

(12) Providers of electronic communications services and networks may need a confirmation of their rights under the general authorisation with respect to interconnection and rights of way, in particular to facilitate negotiations with other, regional or local, levels of government or with service providers in other Member States. For this purpose the national regulatory authorities should provide declarations to undertakings upon request or automatically in response to a notification under the general authorisation.

(12a) Where undertakings find that their applications for rights of way have not been dealt with in accordance with the principles set out in the Directive on a common regulatory framework for electronic communications networks and services, or where such decisions are unduly delayed, they should have the right to appeal against decisions or delays in such decisions in accordance with that Directive.

(13) The penalties for non-compliance with conditions under the general authorisation should be commensurate with the infringement. Save in exceptional circumstances, it would not be proportionate to withdraw the right to provide electronic communications services or the right to use radio frequencies or numbers where an undertaking did not comply with one or more of the conditions under the general authorisation. This is without prejudice to urgent measures which Member States may need to take in case of serious threats to public safety, security or health or to economic and operational interests of other undertakings. This Directive should also be without prejudice to any claims for compensation for damages between undertakings under national law.

(14) Subjecting service providers to reporting and information obligations can be cumbersome, both for the undertaking and for the national regulatory authority concerned. Such obligations should therefore be proportionate, objectively justified and limited to what is strictly necessary. It is not necessary to require systematic and regular proof of compliance with all conditions under the general authorisation or attached to rights of use. Undertakings have a right to know the purposes for which the information they should provide will be used. The provision of information should not be a condition for market access. This Directive should be without prejudice to Member States' obligations to provide any information necessary for the defence of Community interests within the context of international agreements.

(15) Administrative charges may be imposed on providers of electronic communications services in order to finance the activities of the national regulatory authority in managing the authorisation system and for the granting of rights of use. Such charges should be limited to cover the actual administrative costs for those activities. For this purpose transparency should be created in the income and expenditure of national regulatory authorities by means of annual reporting about the total sum of charges collected and the administrative costs incurred. This will allow undertakings to verify that administrative costs and charges are in balance. Administrative charges should not act as a barrier to market entry. Such charges should therefore be distributed in proportion to the turnover on the relevant services of the undertaking concerned as calculated over the accounting year preceding the year of the administrative charge. Small and medium sized undertakings should not be required to pay administrative charges.

(16) In addition to administrative charges, usage fees may be levied for the use of radio frequencies and numbers as an instrument to ensure the optimal use of such resources. Such fees should not hinder the development of innovative services and competition in the market. Where rights of way have hitherto been granted free of charge or other requirements with equivalent effect, that practice should be continued.

(17) Member States may need to amend rights, conditions, procedures, charges and fees relating to general authorisations and rights of use where this is objectively justified. Such changes should be duly notified to all interested parties in good time giving them adequate opportunity to express their views on any such amendments.

(18) The objective of transparency requires that service providers, consumers and other interested parties have easy access to any information regarding rights, conditions, procedures, charges, fees and decisions concerning the provision of electronic communications services, rights of use of radio frequencies and numbers, national frequency usage plans and national numbering plans. The national regulatory authorities have an important task in providing such information and keeping it up to date and in centralising all relevant information regarding rights of way where such rights are administered by other levels of government.

(19) The proper functioning of the single market on the basis of the national authorisation regimes under this Directive should be monitored. On the basis of the findings of such monitoring, further harmonisation measures may be necessary where barriers to the single market remain. Directive [on a common regulatory framework for electronic communications networks and services] provides the procedural framework for any such measures.

(20) The replacement of authorisations existing on the date of entry into force of this Directive by the general authorisation and the individual rights of use in accordance with this Directive should not lead to an increase in the obligations for service providers operating under an existing authorisation or to a reduction of their rights, unless this would have a negative effect on the rights and obligations of other undertakings,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objective and scope

1. The aim of this Directive is to implement an internal market in electronic communications services through the harmonisation and simplification of authorisation rules and conditions in order to facilitate the provision of electronic communications services and networks throughout the Community.

2. This Directive shall apply to all authorisations relating to the provision of electronic communications services and networks.

Article 2

Definitions

For the purposes of this Directive, the definitions in Directive [on a common regulatory framework for electronic communications networks and services] shall apply.

Article 3

General authorisation of electronic communications services and networks

1. Member States shall not prevent an undertaking from providing electronic communications services or networks except where this is necessary to protect public security, safety or health.

2. The provision of electronic communications services or networks may only be subject to a general authorisation, valid throughout the territory of the Member State concerned. The undertaking concerned may be required to submit a notification, but may not be required to obtain an explicit decision or any other administrative act by the national regulatory authority before exercising the rights stemming from the authorisation. Upon notification, an undertaking may begin commercial activity, where necessary subject to the provisions on rights of use in Articles 5, 6 and 7.

3. The notification referred to in paragraph 2 shall not entail more than a declaration by a legal or natural person to the national regulatory authority of the intention to commence the provision of electronic communication networks or services and the submission of the minimal information which is required to allow the national regulatory authority to keep a register of providers of electronic communications services and networks. This information must be limited to what is necessary for the identification of the provider and the provider's contact persons, the provider's address and a short description of the service to be provided.

Article 4

Minimum list of rights derived from the general authorisation

A general authorisation shall give undertakings the right to:

(a) Provide electronic communications services and networks

(b) Negotiate interconnection with other providers of publicly available communications networks covered by a general authorisation anywhere in the Community in accordance with Directive .../.../EC of the European Parliament and of the Council of ... [on access to, and interconnection of, electronic communications networks and associated facilities] [7].

[7] OJ L

(c) Establish electronic communications networks and to have their applications for the necessary rights of way considered in accordance with Article 10 of Directive [on a common regulatory framework for electronic communications networks and services].

(d) Be given an opportunity to be designated to provide elements of a universal service obligation in part or all of the national territory in accordance with Directive .../.../EC of the European Parliament and of the Council of ... [on universal service and users' rights relating to electronic communications networks and services] [8].

[8] OJ L

Article 5

Rights to use radio frequencies and numbers

1. Member States shall, where possible, in particular where the risk of harmful interference is negligible, not make the use of radio frequencies subject to the grant of individual rights of use but shall include the conditions for usage of such radio frequencies in the general authorisation.

2. Where it is necessary to grant individual rights to use radio frequencies and numbers, Member States shall grant such rights, upon request, to any undertaking providing services under the general authorisation, subject to the provisions of Articles 6 and 7 and any other rules ensuring the efficient use of those resources in accordance with Directive [on a common regulatory framework for electronic communications networks and services].

Such rights of use shall be granted through open, non-discriminatory and transparent procedures. When granting rights of use, Member States shall specify whether those rights can be transferred at the initiative of the right holder and under which conditions, in accordance with Article 8 of Directive [on a common regulatory framework for electronic communications networks and services]. Where Member States grant rights of use for a limited period of time, the duration shall be appropriate for the service concerned .

3. Decisions on rights of use shall be taken, communicated and published as soon as possible and within two weeks after receipt of the complete application by the competent authority in the case of numbers, and within six weeks in the case of radio frequencies.

4. Member States shall not limit the number of rights of use to be granted except where this is necessary to ensure the efficient use of radio frequencies and in accordance with Article 7. Member States shall grant rights to use frequency where it is available.

Article 6

Conditions attached to the general authorisation and to the rights of use for radio frequencies and rights of use for numbers

1. The general authorisation for the provision of electronic communications services or networks and the rights of use for radio frequencies and rights of use for numbers shall be subject only to the conditions listed respectively in parts A, B and C of the Annex. Such conditions shall be objectively justified in relation to the service concerned, non-discriminatory, proportionate and transparent.

2. Specific obligations which may be imposed on providers of electronic communications services and networks with significant market power under Article 8 of Directive [on access to, and interconnection of, electronic communications networks and associated facilities] or on those designated to provide universal service under Directive [on universal service and users' rights relating to electronic communications networks and services], shall be legally separate from the general rights and obligations under the general authorisation. In order to achieve transparency for undertakings, the criteria and procedures for imposing such specific obligations on individual undertakings, shall be referred to in the general authorisation.

3. The general authorisation shall only contain conditions which are specific for that sector as set out in Part A of the Annex and shall not duplicate conditions which are applicable to undertakings by virtue of other national legislation.

4. Member States shall not duplicate the terms of the general authorisation where they grant the right to use radio frequencies or numbers.

Article 7

Procedure for limited granting of rights to use radio frequencies

1. Where a Member State is considering to limit the granting of rights of use for radio frequencies, it shall:

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

(b) allow sufficient opportunity and a period of at least 30 days to enable all interested parties, including users and consumers, to express their views on any limitation;

(c) publish its decision to limit the granting of rights of use, stating the reasons therefor;

(d) review the limitation at reasonable intervals or at the request of undertakings; and

(e) invite applications for rights of use.

2. Where a Member State finds that further rights to use radio frequencies can be granted, it shall publish that finding and invite applications for such rights.

3. Where the granting of rights of use for radio frequencies needs to be limited, Member States shall grant such rights on the basis of selection criteria which must be objective, non-discriminatory, detailed, transparent and proportionate. Any such selection must give due weight to the need to facilitate the development of competition and of innovative services and to maximise benefits for users.

4. Where comparative bidding procedures are to be used, Member States may extend the maximum period of six weeks referred to in Article 5(3) for as long as necessary to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no longer than six months.

These time-limits shall be without prejudice to any applicable international agreements relating to the use of radio frequencies and of orbital positions.

Article 8

Harmonised assignment of radio frequencies

Where the usage of radio frequencies has been harmonised and access conditions and procedures have been agreed, in accordance with Decision [on a regulatory framework for radio spectrum policy in the Community] [9] and other Community rules, Member States shall grant the right of use for radio frequencies in accordance therewith. They shall not impose any conditions, additional criteria or procedures which would restrict, alter or delay the correct implementation of the harmonised assignment of radio frequencies .

[9] OJ L

Article 9

Declarations to facilitate the exercise of rights of way and rights of interconnection

At the request of an undertaking Member States shall, within one week, issue declarations confirming that that undertaking is authorised to apply for rights of way and /or to negotiate interconnection under the general authorisation in order to facilitate the exercise of those rights at other levels of government or in relation to other undertakings. Where appropriate such declarations may also be issued as an automatic reply following notification referred to in Article 3(2).

Article 10

Compliance with the conditions of the general authorisation or for rights of use

1. National regulatory authorities may require undertakings providing electronic communications services or networks covered by the general authorisation or enjoying rights of use for radio frequencies or numbers to provide information necessary to verify compliance with the conditions of the general authorisation or the rights of use, in accordance with Article 11.

2. Where a national regulatory authority finds that an undertaking does not comply with one or more of the conditions of the general authorisation or the rights of use, it shall notify the undertaking of those findings and give the undertaking a reasonable opportunity to state its views or remedy any breaches within one month after notification or within any other period agreed between the undertaking concerned and the national regulatory authority. In case of a repeated breach of a condition, the national regulatory authority may shorten this period.

3. If the undertaking concerned does not remedy the breaches within the period as referred to in paragraph 2, the national regulatory authority shall take appropriate and proportionate measures aimed at ensuring compliance. The measures and the reasons on which they are based, shall be communicated to the undertaking concerned within one week of their adoption and at least one week before they take effect.

4. In cases of serious and repeated breaches of the conditions of the general authorisation, the rights of use or specific obligations, where measures aimed at ensuring compliance as referred to in paragraph 3 have failed, national regulatory authorities may prevent an undertaking from continuing to provide electronic communications services or networks or suspend or withdraw rights of use.

5 Where a breach of the conditions of the general authorisation or rights of use represents an immediate and serious threat to public safety, security or health or creates serious economic or operational problems for other providers or users of electronic communications services or networks, Member States may take urgent interim measures to remedy the situation. The undertaking concerned shall thereafter be given a reasonable opportunity to state its view and to propose any remedies.

6 Undertakings shall have the right to appeal against measures taken by Member States under this Article in accordance with the procedure referred to in Article 4 of Directive [on a common regulatory framework for electronic communications networks and services].

Article 11

Information required under the general authorisation and for rights of use

1. Without prejudice to information and reporting obligations under national legislation other than the general authorisation, Member States shall not require undertakings to provide more information under the general authorisation than is proportionate and objectively justified for:

(a) systematic verification of compliance with conditions 1 and 2 of Part A, condition 6 of Part B and condition 5 of Part C of the Annex and of compliance with obligations as referred to in Article 6(2);

(b) case-by-case verification of compliance with conditions as set out in the Annex where a complaint has been received or where the national regulatory authority has other reasons to believe that a condition is not complied with;

(c) comparative bidding procedures for radio frequencies;

(d) publication of comparative overviews of quality and price of services for the benefit of consumers;

(e) clearly defined statistical purposes;

(f) market analysis for the purposes of Directive [on access to, and interconnection of, electronic communications networks and associated facilities] or Directive [on universal service and users' rights relating to electronic communications networks and services].

The information referred to in points (a), (b), (d), (e) and (f) of the first subparagraph may not be required prior to or as a condition for market access.

2. Where Member States require undertakings to provide information as referred to in paragraph 1, they shall inform them of the specific purpose for which this information is to be used.

Article 12

Administrative charges

1. Any administrative charges imposed on undertakings providing a service under the general authorisation shall:

(a) in total, cover only the administrative costs incurred in the management, control and enforcement of the applicable general authorisation scheme and of the granting of rights of use; and

(b) be apportioned between the individual undertakings in proportion to the turnover of each undertaking within the last accounting year on the services covered by the general authorisation, or for which the rights of use are granted, and provided within the national market of the Member State imposing the charge.

2. Undertakings with an annual turnover for the relevant services referred to in paragraph 1(b) of less than EUR 10 million shall be exempt from paying administrative charges.

3. Where Member States impose administrative charges, they shall publish a sufficiently detailed yearly overview of their administrative costs and of the total sum of the charges collected. In the light of the difference between the total sum of the charges and the administrative costs, appropriate adjustments shall be made in the following year.

Article 13

Fees for rights of use and rights of way

1. Member States may allow the assigning authority to impose fees for the rights to use radio frequencies, numbers or rights of way which reflect the need to ensure the optimal use of these resources. Such fees shall be non-discriminatory, transparent, objectively justified and proportionate in relation to their intended purpose and shall not run counter to the need to - Ensure that users derive maximum benefit in terms of choice, price, quality and value for money;

- Ensure that there is no distortion or restriction of competition in the electronic communications sector

- Encourage efficient investment in infrastructure and innovation;

- Avoid barriers to the internal market and create a level playing field throughout the European Union.

2. Where, in case of comparative selection procedures, fees for rights of use for radio frequencies consist entirely or partly of a one-off amount, appropriate payment arrangements shall be offered to ensure that such fees do not in practice lead to selection on the basis of criteria unrelated to the objective of ensuring optimal use of radio frequencies.

3. Where a national regulatory authority intends to take measures under this article , it shall notify such intended measures in accordance with Article 6(2), (3) and (4) of Directive .../../EC [on a common regulatory framework for electronic communications networks and services].

Article 14

Amendment of rights and obligations

1. Member States may amend the rights, conditions, procedures, charges and fees concerning general authorisations and rights of use or rights of way in objectively justified cases and in a proportionate manner. Member States shall give appropriate notice of their intention to make such amendments and allow interested parties, including users and consumers, a sufficient period proportionate to the economic or operational impact of the amendment envisaged, of no less than four weeks to express their views on the proposed amendments in accordance with the procedure laid down in Article 6(1) of the Directive [on a common regulatory framework for electronic communications networks and services].

2. Member States shall not seriously restrict or withdraw rights of way before expiry of the period for which they were granted unless this is necessary on grounds of public safety or public policy. In such cases, providers of electronic communications networks and services shall be entitled to appropriate compensation.

Article 15

Publication of information

1. Member States shall ensure that all relevant information on rights, conditions, procedures, charges, fees and decisions concerning general authorisations and rights of use is published and kept up to date in an appropriate manner so as to provide easy access to that information for all interested parties.

2. Where charges, fees, procedures and conditions concerning rights of way are determined at different levels of government, Member States shall publish and keep up to date a register of all such charges, fees, procedures and conditions and details of the authorities responsible in each case in an appropriate manner so as to provide easy access to that information for all interested parties.

Article 16

Functioning of the internal market

Where divergences between national charges, fees, procedures or conditions concerning general authorisation or the grant of rights of use create barriers to the internal market, the Commission may adopt measures to harmonise such charges, fees, procedures or conditions in accordance with the procedure referred to in Article 19(3) of Directive [on a common regulatory framework for electronic communications networks and services].

In order to identify any such barriers to the single market, the Commission shall periodically review the functioning of the national authorisation systems and the development of cross border service provision within the Community and report to the European Parliament and to the Council.

Article 17

Existing authorisations

1. Member States shall bring authorisations already in existence on the date of entry into force of this Directive into line with the provisions of this Directive by 31 December 2001 at the latest.

2. Where application of paragraph 1 results in a reduction of the rights or an extension of the obligations under authorisations already in existence, Member States may extend the validity of those rights and obligations until 30 June 2002 at the latest, provided that the rights of other undertakings under Community law are not effected thereby. Member States shall notify such extensions to the Commission and state the reasons therefor.

3. If before the transposition of this Directive, administrative charges have already been levied covering a period that runs beyond the date of application of the Directive, a corresponding deduction shall be made from the charges to be paid as from the date of application of the Directive.

Article 18

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 31 December 2001 at the latest. They shall forthwith inform the Commission thereof.

When Member States adopt those provisions , they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field governed by this Directive and of any subsequent amendments to those provisions.

Article 19

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities.

Article 20

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President

ANNEX

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(a).

A. Conditions which may be imposed by general authorisation

1. Financial contributions to the funding of universal service in conformity with Directive [on universal service and users' rights relating to electronic communications networks and services].

2. Administrative charges in conformity with Article 12 of this Directive.

3. Interoperability of services and interconnection of networks in conformity with Directive [on access to, and interconnection of, electronic communications networks and associated facilities.

4. Accessibility of numbers from the national numbering plan to end-users in conformity with Directive [on universal service and users' rights relating to electronic communications networks and services].

5. Environmental and town and country planning requirements, including conditions linked to the granting of access to public or private land and conditions linked to collocation and facility sharing in conformity with Directive [on a common regulatory framework for electronic communications networks and services].

6. Mandatory transmission of specified radio and TV broadcasts in conformity with Directive [on universal service and users' rights relating to electronic communications networks and services].

7. Personal data and privacy protection specific to the electronic communications sector in conformity with Directive [on the processing of personal data and the protection of privacy in the electronic communications sector].

8. Consumer protection rules specific to the electronic communications sector including conditions in conformity with Directive [on universal service and users' rights relating to electronic communications networks and services].

9. Obligations in relation to broadcasting content, in particular those concerning the protection of minors in accordance with Article 2(a)(2) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council.

10. Information to be provided under a notification procedure in accordance with Article 3(3) of this Directive and for other purposes as included in Article 11 of this Directive.

11. Enabling of legal interception by competent national authorities in conformity with Directive [on the processing of personal data and the protection of privacy in the electronic communications sector and Directive 95/46/EC.

12. Terms of use during major disasters to ensure communications between emergency services and authorities and broadcasts to the general public.

13. Measures regarding the limitation of exposure of the general public to electromagnetic fields caused by electronic communications networks in accordance with Community law.

B. Conditions which may be attached to rights of use for radio frequencies

1. Designation of service for which the frequency shall be used, including ., where applicable, the exclusive use of a frequency for the transmission of a specific content.

2. Efficient use of frequencies in conformity with Directive [on a common regulatory framework for electronic communications networks and services].

3. Avoidance of harmful interference.

4. Maximum duration in conformity with Article 5 of this Directive.

5. Transfer of rights at the initiative of the right holder and conditions for such transfer in conformity with Directive [on a common regulatory framework for electronic communications networks and services].

6. Usage fees in accordance with Article 13 of this Directive.

7. Any commitments which the undertaking obtaining the usage right has made in the course of a comparative bidding procedure.

C. Conditions which may be attached to rights of use for numbers

1. Designation of service for which the number shall be used.

2. Efficient use of numbers in conformity with Directive [on a common regulatory framework for electronic communications networks and services].

3. Number portability requirements in conformity with Directive [on universal service and users' rights relating to electronic communications networks and services].

4. Maximum duration in conformity with Article 5 of this Directive.

5. Transfer of rights and conditions for such transfer in conformity with Directive [on a common regulatory framework for electronic communications networks and services].

6. Usage fees in accordance with Article 13 of this Directive.