51996PC0419

Proposal for a European Parliament and Council Directive on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment replacing European Parliament and Council Directive 95/62/EC (96/C 371/02) (Text with EEA relevance) COM(96) 419 final - 96/0226 (COD)

(Submitted by the Commission on 5 November 1996) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure laid down in Article 189b of the Treaty,

(1) Whereas from 1 January 1998, with transition periods for certain Member States, the provision of telecommunications services and infrastructure in the Community will be liberalized; whereas the Council (1), the European Parliament (2), the Economic and Social Committee (3) and the Committee of the Regions (4) have all recognized that liberalization goes hand in hand with parallel action to create a harmonized regulatory framework which secures the delivery of universal service; whereas the concept of universal service must evolve to keep pace with advances in technology, market developments and changes in user demand; whereas progress has been made in the Community towards defining the scope of universal service and laying down rules for its costing and financing (5); whereas the Commission has undertaken to publish a report on the monitoring of the scope, level, quality and affordability of the universal telephone service in the Community before 1 January 1998, and at regular intervals thereafter (6).

(2) Whereas Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (7) provides a general framework for the application of ONP principles in specific areas;

(3) Whereas Article 32 (1) of European Parliament and Council Directive 95/62/EC of 13 December 1995 on the application of open network provision (ONP) to voice telephony (8) calls for the European Parliament and the Council to decide by 1 January 1998, on the basis of a proposal submitted by the Commission, on the revision of the Directive to adapt it to the requirement of market liberalization; whereas Directive 95/62/EC does not apply to mobile telephony services; whereas in moving to a competitive market, there are certain obligations that should apply to all organizations providing telephone services over fixed networks, and others that should be retained only for as long as certain organizations continue to enjoy significant market power and thus have the ability to influence market conditions independently of their competitors; whereas full account has been taken of the user and consumer requirements for affordability, cost control and user facilities as expressed in the public consultation on universal service for telecommunications (1); whereas, since the modifications required to Directive 95/62/EC are substantial, it is convenient for the sake of clarity to reformulate the said Directive; whereas the present Directive does not affect the timescales for Member Statesr' implementation of Directive 95/62/EC as set out in Annex IV;

(4) Whereas the basic universal service requirement is to provide users on request with a connection to the fixed public telephone network at a fixed location, at an affordable price; whereas there should be no constraints on the technical means by which the connection is provided, allowing for wire or wireless technologies; whereas affordability is a matter to be determined at national level in the light of specific national conditions, including town and country planning aspects; whereas the affordability of a telephone service is related to the information users receive about telephone usage expenses as well as the relative cost of telephone usage compared to other services;

Whereas tariff rebalancing is leading to a move away from uniformly low and non-cost-oriented tariffs; whereas until competition is effectively established safeguards may be necessary to ensure that price increases in remote or rural areas are not used to compensate for losses in revenue resulting from price decreases elsewhere; whereas price caps and similar schemes may be used to ensure that the necessary rebalancing does not affect users adversely, and that the differences between prices in high-cost areas and prices in low-cost areas do not endanger the affordability of telephone services;

(5) Whereas the importance of the telephone network and service is such that it should be available to anyone reasonably requesting it; whereas in accordance with the principle of subsidiarity, it is for Member States to decide which organizations have the responsibility for providing the various elements of the universal service for telecommunications as defined in this Directive; whereas corresponding obligations could be included as conditions in authorizations to provide voice telephony services; whereas only the net cost of obligations covered in this Directive should be shared under a universal service financing scheme;

(6) Whereas provision of directory services is a competitive activity; whereas European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data regulates the processing of personal data (2); whereas progress has been made in the Community on a proposal for a Directive on the protection of personal data and privacy in the telecommunications sector which will give subscribers the right to be omitted, or to have certain data omitted, from a printed or electronic directory at his or her request (3); whereas users and consumers desire comprehensive directories and directory enquiry service covering all listed telephone subscribers and their numbers (including fixed, mobile and personal telephone numbers); whereas the situation whereby certain telephone directories and directory services are provided in a manner that is perceived to be free of charge to the user is not affected by this Directive;

(7) Whereas Council Decision 91/396/EEC of 29 July 1991 on the introduction of a single European emergency call number (4) called for Member States to ensure that no later than 31 December 1996 the number '112` is introduced in public telephone networks as the single European emergency call number; whereas it is important that users are able to call emergency telephone numbers, and in particular the single European emergency call number '112`, free of charge from any telephone, including public payphones, without the use of coins or cards;

(8) Whereas quality and price are key factors in a competitive market, and national regulatory authorities should be able to monitor achieved quality of service and take appropriate corrective measures where necessary; whereas these powers are without prejudice to the application of competition law by national and Community authorities;

(9) Whereas conditions on the access to and use of fixed public telephone networks or publicly available telephone services may be imposed exceptionally by a Member State on the grounds of essential requirements; whereas national regulatory authorities may authorize procedures whereby an organization can act immediately to restrict access, in particular in the case of fraud; whereas, except in cases of persistent late payment or non-payment of bills, consumers should be protected from immediate disconnection from the network on the grounds of an unpaid bill, and in particular in the case of disputes over high bills for premium rate services, should continue to have access to essential telephone services pending resolution of the dispute;

(10) Whereas the facilities of tone dialling and itemized billing are normally available on modern telephone exchanges and can therefore be provided inexpensively once old exchanges are modernized or new exchanges installed; whereas tone dialling is increasingly being used for interaction with special services and facilities, including value added services, and lack of this facility can prevent users accessing certain services; whereas itemized billing and selective call barring are valuable means for users to control and monitor their usage of telephone networks; whereas progress has been made in the Community on a proposal for a Directive on the protection of personal data and privacy in the telecommunications sector which will safeguard the privacy of users with regard to itemized billing; whereas harmonized technical interface standards have been drawn up by the European standardisation organizations for access to the integrated services digital network (ISDN) at what is know as the S/T reference point;

(11) Whereas certain prior obligations concerning tariffs and cost accounting systems will no longer be appropriate once competition is introduced, and others can be relaxed by the competent national regulatory authority as soon as competition achieves the desired objectives; whereas in all cases the non-discrimination requirements of the competition rules of the Treaty apply;

(12) Whereas issues related to the level of affordability, the quality of service and the future scope of the universal service should be the subject of consultation at national level and at the European level with all interested parties; whereas such consultation requires that adequate information about the level, quality and affordability of universal service is available; whereas disabled users should wherever possible receive a broadly similar level of services compared to other users in terms of their access to or use of telephone services;

(13) Whereas the Commission has to be able to monitor effectively the application of this Directive, and European users need to know where to find published information about telephone services in other Member States;

(14) Whereas in view of the forecast convergence of fixed and mobile telephone services, the applicability of the Directive with respect to mobile services should be re-examined when the Directive is reviewed; whereas the review date of 31 December 1999 will allow for a coordinated review of all the ONP Directives in the light of experience with the liberalization of public telecommunications networks and voice telephony services;

(15) Whereas the essential goals of ensuring universal service for telecommunications for all European users and of harmonizing conditions for access to and use of fixed public telephone networks and publicly available telephone services, cannot be realized satisfactorily at Member State level,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I SCOPE, AIM AND DEFINITIONS

Article 1 Scope and aim

1. This Directive concerns the harmonization of conditions for open and efficient access to and use of fixed public telephone networks and publicly available telephone services in an environment of open and competitive markets, in accordance with the principles of open network provision (ONP).

The aims are to ensure the availability throughout the Community of good quality telephone services, and to ensure that all users, including consumers, have access to a defined set of telephone services at affordable prices.

2. This Directive replaces Directive 95/62/EC.

Article 2 Definitions

1. The definitions given in Directive 90/387/EEC shall apply, where relevant, to this Directive.

2. For the purposes of this Directive:

- 'users` means individuals, including consumers, or organizations using or requesting publicly available telecommunications services,

- 'consumer` means any natural person who uses a fixed public telephone network or publicly available telephone service for purposes which are outside his or her trade, business or profession,

- 'fixed public telephone network` means those elements of the public switched telecommunications network which are used, in all or in part, for the provision of voice telephony service between network termination points which are at fixed locations,

- 'public payphone` means a telephone available to the general public, for the use of which the means of payment are coins, credit/debit cards and/or pre-payment cards,

- 'publicly available telephone service` means a service made available to telephone users over a connection to the fixed public telephone network, which includes the availability of the facilities specified in this Directive,

- 'universal service` means a defined minimum set of services of specified quality which is available to all users independent of their geographical location and, in the light of specific national conditions, at an affordable price,

- 'national regulatory authority` means the body or bodies in each Member State, entrusted by that Member State, inter alia, with the regulatory functions addressed in this Directive,

- 'ONP Committee` means the Committee created by Article 9 (1) of Directive 90/387/EEC,

- 'organization with significant market power` means an organization providing fixed public telephone networks and/or publicly available telephone services in a Member State which has been designated by the national regulatory authority in that Member State as having significant market power and notified to the Commission.

An organization shall be presumed to have significant market power when it has a share of 25 % or more of the relevant voice telephony market in a Member State.

National regulatory authorities may determine that an organization with a market share of less than 25 % in the relevant voice telephony market has significant market power. They may also determine that an organization with a market share of more than 25 % in the relevant voice telephony market does not have significant market power. In either case, the determination shall take into account the organization's ability to influence market conditions, its turnover relative to the size of the market, its control of the means of access to end-users, its access to financial resources, its experience providing products and services in the market.

CHAPTER II PROVISION OF A DEFINED SET OF TELECOMMUNICATIONS SERVICES

Article 3 Availability of telecommunications services

Member States shall ensure throughout their territory the availability of the services set out in this chapter.

Where these services cannot be commercially provided on the basis of conditions laid down by the Member State, Member States may set up universal service schemes for the shared financing of these services, in conformity with Community law.

Article 4 Affordability

1. Member States shall ensure, in the light of their national conditions, the affordability of the services specified in this chapter.

Taking into account the progressive adjustment of tariffs towards costs, Member States shall in particular maintain the affordability of the specified services for users in rural or high cost areas, where necessary by taking measures to ensure that price increases in rural areas are not used to compensate losses in revenue resulting from price decreases elsewhere, and for vulnerable groups of users such as the elderly, those with disabilities, those who do not use the telephone very much.

To this end, Member States shall remove obligations which prevent or restrict the use of special or targetted tariff schemes for the provision of the services specified in this Directive and may, in accordance with Community law, implement price caps or other similar schemes for some or all of the specified services, for a appropriate period of time.

Member States shall publish the rules and criteria for ensuring affordability at the national level, taking into account the consultation called for in Article 24.

2. Member States shall publish regular reports on the evolution of tariffs.

Article 5 Provision of network connections and access to telephone services

1. Member States shall ensure that all reasonable requests for connection to the fixed public telephone network and access to publicly available telephone services, at a fixed location, are met.

The connection provided shall allow users to make and receive national and international calls, supporting speech, facsimile and/or data communications.

2. Where, taking into account the revenues generated as a result of that connection, the network provider states that the user concerned can only be served at a loss or under cost conditions falling outside normal commercial standards, the net cost of serving that user may be shared with other organizations under a universal service financing scheme.

Article 6 Directory services

1. Subject to the requirements of relevant legislation on the protection of personal data and privacy, such as Directive 95/46/EC, Member States shall ensure that:

(a) subscribers have the right to have an entry in publicly available directories, and to verify and if necessary correct or request removal of that entry;

(b) directories of all subscribers who consent to be listed, including fixed and personal numbers, are available to users in printed and where appropriate, electronic form, and updated on a regular basis;

(c) directory enquiry services covering all listed subscribers numbers are available to all users, including users of public payphones.

2. In order to ensure provision of the services in paragraph 1, Member States shall ensure that all organizations who assign telephone numbers to subscribers make available on request the relevant information in an agreed format on terms which are fair, reasonable and non-discriminatory.

3. Member States shall ensure that organizations providing the service in paragraph 2 follow the principle of non-discrimination in their treatment and presentation of information provided to them.

4. Where a Member State finds that no organization is willing to make telephone directories publicly available, or to provide directory enquiry services to all telephone users including users of public payphones, the net cost of providing these services may be shared amongst all organizations providing publicly available voice telephony services under a universal service financing scheme, in accordance with Community law.

Article 7 Public payphones

1. Member States shall ensure that public payphones are provided to meet the reasonable needs of users, in terms of both numbers and geographical coverage.

2. Member States shall ensure that it is possible to make emergency calls from public payphones using the single European emergency call number '112` referred to in Decision 91/396/EEC, and other national emergency numbers, all free of charge.

3. Where a Member State finds that certain public payphones can only be served at a loss or under cost conditions falling outside normal commercial standards, the net cost of providing those public payphones may be shared amongst all organizations providing public telecommunications networks and/or publicly available voice telephony services under a universal service financing scheme, in accordance with Community law.

Article 8 Specific measures for disabled users and users with special needs

Member States shall, where appropriate, take specific measures to ensure access to and affordability of telephone services for disabled users and users with special needs.

CHAPTER III GENERAL PROVISIONS CONCERNING FIXED PUBLIC TELEPHONE NETWORKS AND PUBLICLY AVAILABLE TELEPHONE SERVICES

Article 9 Connection of terminal equipment and use of the network

Member States shall ensure that all users provided with a connection to the fixed public telephone network can:

(a) connect and use terminal equipment suitable for the connection provided, in accordance with national and Community law;

(b) access operator assistance services, and directory enquiry services in accordance with Article 6;

(c) access emergency services at no charge, using the dialling code '112` and any other dialling codes specified by national regulatory authorities for use at a national level.

All connections to the fixed public telephone network installed after 1 January 1998 should be of a quality that supports, in addition to speech, data communications at rates suitable for access to online information services, i.e. 14 400 bit/s or more.

Article 10 Contracts

1. National regulatory authorities shall ensure that organizations providing access to fixed public telephone networks provide a contract which specifies the service and service quality levels to be provided, and the compensation and/or refund arrangements for users that apply if the contracted service quality levels are not met. Contracts shall contain a summary of the method of initiating procedures for the settlement of disputes in accordance with Article 26.

2. Without prejudice to other rights of appeal provided for by national law, Member States shall ensure that users and, where national law so provides, organizations representing user and/or consumer interests can bring before the national regulatory authority cases where compensation and/or refund arrangements are deemed to be unsatisfactory for users.

National regulatory authorities shall be able to require the alteration of the conditions of contracts referred to in paragraph 1, and the conditions of any compensation and/or refund schemes used.

Article 11 Publication of and access to information

1. Member States shall ensure that all organizations providing fixed public telephone networks or publicly available telephone services publish adequate and up-to-date information on access to and use of the fixed public telephone networks and/or publicly available telephone services. In particular, national regulatory authorities shall ensure that tariffs are presented clearly and accurately.

2. National regulatory authorities shall ensure that organizations providing fixed public telephone networks provide them with details of technical interface specifications for network access, as identified in Part 1 of Annex II to be made available in accordance with paragraph 4. Changes in existing network interface specifications and information on new network interface specifications shall be communicated to the national regulatory authority in advance of implementation. The national regulatory authority may lay down a suitable period of notice.

3. Where and for as long as the provision of public telecommunications networks and publicly available voice telephony services are subject to special or exclusive rights in a Member State, national regulatory authorities shall ensure that adequate and up-to-date information on access to and use of the fixed public telephone networks and publicly available telephone services is published according to the list of headings given in Part 2 of Annex II in the manner laid down in paragraph 4.

4. National regulatory authorities shall ensure that the information is made available in an appropriate manner in order to provide easy access to that information for interested parties. Reference (to the manner in which this information is published) shall be made in the national official gazette of the Member State concerned.

5. National regulatory authorities shall notify to the Commission no later than 1 July 1997 the manner in which the information referred to in paragraphs 2 and 3 is made available. The Commission shall regularly publish a reference to such notifications in the Official Journal of the European Communities. Any changes shall be immediately notified.

Article 12 Quality of service

1. Member States shall take the necessary steps to ensure quality of the services identified in this Directive. In particular, they may set performance targets in the authorizations that apply to organizations providing fixed public telephone networks and/or publicly available telephone services.

In the case of organizations who retain special or exclusive rights for the provision of fixed public telecommunications networks and/or voice telephony services, Member States shall ensure that targets are set and published for the relevant parameters laid down in Annex III, in accordance with Article 11 (4).

2. National regulatory authorities shall ensure that organizations who have been providing fixed public telephone networks and/or publicly available telephone services for more than 18 months start to keep up-to-date information concerning their performance based on the parameters, definitions and measurement methods laid down in Annex III. This information shall be provided to the national regulatory authority on request.

3. Where appropriate, and in particular as a result of consultation with interested parties in accordance with the provisions of Article 24, national regulatory authorities shall ensure publication of the performance data referred to in paragraph 1, and may set performance targets for organizations providing fixed public telephone networks and/or publicly available telephone services where these do not exist already, in accordance with Article 11 (4).

Persistent failure of an organization to meet performance targets may result in specific measures being taken in accordance with conditions set out in the relevant authorization for that organization.

4. National regulatory authorities shall have the right to call for independent audits of the performance data in order to ensure the accuracy and comparability of the data made available by the organizations referred to in paragraph 1.

Article 13 Conditions of access and use and essential requirements

1. National regulatory authorities shall have procedures in order to decide, on a case-by-case basis and in the shortest possible time period, whether or not to allow organizations providing fixed public telephone networks and/or publicly available telephone services to take measures such as the refusal to provide access to the fixed public telephone network or the interruption or reduction in availability of service, for reasons of a user's alleged failure to comply with the conditions of use. These procedures may also provide for the possibility of the national regulatory authority authorizing a priori specified measures in the event of defined infringements of the conditions of use, in particular fraudulent use.

The national regulatory authority shall ensure that these procedures provide for a transparent decision-making process in which due respect is given to the rights of the parties. The decision shall be taken after both parties have been given the opportunity to state their case. The decision shall be duly substantiated and notified to the parties within one week of its adoption.

A summary of these procedures shall be published in the manner laid down in Article 11 (4).

This provision shall not prejudice the rights of the parties concerned to apply to the courts.

2. Member States shall ensure that, when access to or use of fixed public telephone networks and/or publicly available telephone services is restricted on the basis of essential requirements, the relevant national provisions identify which of the essential requirements set out in points (a) to (e) below are the basis of such restrictions.

These restrictions shall be imposed through regulatory means which can be challenged in court, and shall be published in the manner laid down in Article 11 (4).

Without prejudice to action which may be taken in accordance with Article 3 (5) and Article 5 (3) of Directive 90/387/EEC, the following essential requirements shall apply to the fixed public telephone network and publicly available telephone services in the following manner:

(a) Security of network operations

Member States shall take all necessary steps to ensure that the availability of fixed public telephone networks and publicly available telephone services is maintained in the event of catastrophic network breakdown or in cases of force majeure, such as extreme weather, earthquakes, flood, lightning or fire.

In the event of the circumstances referred to in the first subparagraph, the bodies concerned shall make every endeavour to maintain the highest level of service to meet any priorities laid down by the competent authorities.

National regulatory authorities shall ensure that any restrictions on access to and use of the fixed public telephone network on the grounds of the security of networks are proportionate and non-discriminatory and are based on objective criteria identified in advance.

(b) Maintenance of network integrity

Member States shall take all necessary steps to ensure that the integrity of fixed public telephone networks is maintained. National regulatory authorities shall ensure that restrictions on access to and use of the fixed public telephone network on the grounds of maintenance of network integrity, in order to protect inter alia network equipment, software or stored data, are kept to the minimum necessary to provide for normal operation of the network. Such restrictions shall be non-discriminatory, and be based on objective criteria identified in advance.

(c) Interoperability of services

When terminal equipment is operating in compliance with Directive 91/263/EEC, no further restrictions on use shall be imposed on the grounds of interoperability of services.

(d) Protection of data

Conditions on access to and use of fixed public telephone networks and/or publicly available telephone services based on the grounds of protection of data may be imposed only in accordance with relevant legislation on the protection of personal data and privacy, such as Directive 95/46/EC.

(e) Effective use of the frequency spectrum

Member States shall take all necessary steps to ensure the effective use of the frequency spectrum and the avoidance of harmful interference between radio-based systems that could restrict or limit access to or use of fixed public telephone networks and publicly available telephone services.

3. Where and for as long as Member States maintain special or exclusive rights for the provision of public telecommunications networks and voice telephony services, conditions imposed on users on the basis of such special or exclusive rights shall be imposed through regulatory means and with the agreement of the national regulatory authority.

CHAPTER IV SPECIFIC PROVISIONS CONCERNING PUBLIC TELEPHONE NETWORKS AND PUBLICLY AVAILABLE TELEPHONE SERVICES

Article 14 Itemized billing, tone dialling and selective call barring

1. Member States shall ensure that all organizations providing publicly available telephone services over fixed public telephone networks make available, as early as possible, the facilities of:

- tone dialling,

- itemized billing and selective call barring as facilities available on request.

Tone dialling and selective call barring are specified in Part 1 of Annex I.

National regulatory authorities shall ensure that these facilities are offered to most telephone users before 31 December 1998, and are generally available before 31 December 2002.

2. Subject to the requirements of relevant legislation on the protection of personal data and privacy, such as Directive 95/46/EC, itemized bills shall show a sufficient level of detail to allow verification and control of the charges incurred in using the fixed public telephone network and/or publicly available telephone services.

A basic level of itemized billing shall be available at no extra charge to the user. Where appropriate, additional levels of detail may be offered to users at reasonable tariffs. National regulatory authorities may lay down the basic level of itemized billing.

Calls to helplines which are free of charge to the caller shall not be identified in the caller's itemized bill.

Article 15 Provision of additional facilities

1. National regulatory authorities shall ensure that organizations with significant market power in the provision of telephone services over fixed public telephone networks provide, subject to technical feasibility and economic viability, the facilities listed in Annex I, part 2.

2. National regulatory authorities shall facilitate and encourage provision of the services and facilities listed in Annex I part 3, in compliance with the competition rules of the Treaty.

3. National regulatory authorities shall ensure that dates for the introduction of the facilities listed in Annex I part 2 are set, taking into account the state of network development, market demand and progress with standardization, and are published in the manner laid down in Article 11 (4).

Article 16 Special network access

1. National regulatory authorities shall ensure that the organizations with significant market power in the provision of fixed public telephone networks deal with reasonable requests from organizations providing telecommunications services for access to the fixed public telephone network at network termination points other than the commonly provided network termination points referred to in Part 1 of Annex II.

2. The organization making such a request shall be granted the opportunity to put its case to the national regulatory authority before a final decision is taken to restrict or deny access in response to a particular request.

Where a request for special network access is denied, the organization making the request should be given a prompt and justified explanation as to why the request has been refused.

3. Technical and commercial arrangements for special network access shall be a matter for agreement between the parties involved, subject to intervention by the national regulatory authoritiy as laid down in paragraphs 2, 4 and 5. The agreement may include reimbursement to the organization of its costs incurred inter alia in providing the network access requested; these charges shall fully respect the principles of cost orientation set out in Annex II to Directive 90/387/EC.

4. National regulatory authorities may intervene on their own initiative at any time, and shall do so if requested by either party, in order to set conditions that are non - discriminatory, are fair and reasonable for both parties and offer the greatest benefit to all users.

5. National regulatory authorities shall also have the right, in the interest of all users, to ensure that the agreements include conditions that meet the criteria set out in paragraph 4, are entered into and implemented in an efficient and timely manner and include conditions on conformity with relevant standards, compliance with essential requirements and/or the maintenance of end-to-end quality.

6. Conditions set by national regulatory authorities in accordance with paragraph 5 shall be published in the manner laid down in Article 11 (4).

7. National regulatory authorities shall ensure that organizations with significant market power referred to in paragraph 1 adhere to the principle of non-discrimination when they make use of the fixed public telephone network, and in particular use any form of special network access, for providing publicly available telecommunications services.

8. Where appropriate, the Commission shall, in consultation with the ONP Committee, acting in accordance with the procedure laid down in Article 29, request ETSI to draw up standards for new types of network access. Reference to such standards shall be published in the Official Journal of the European Communities in accordance with Article 5 of Directive 90/397/EEC.

9. Details of agreements for special network access shall be made available to the national regulatory authority upon its request.

Article 17 Tariff principles

1. Without prejudice to the specific provisions of Article 4 in relation to affordability, national regulatory authorities shall ensure that organizations with significant market power for the provision of voice telephony services over fixed public telephone networks comply with the provisions of this Article.

2. Tariffs for use of the fixed public telephone network and publicly available telephone services shall follow the basic principles of cost orientation set out in Annex II to Directive 90/387/EC. In particular, the facilities referred to in Article 14 of this Directive shall be provided at affordable prices.

3. Tariffs for access to and use of the fixed public telephone network shall be independent of the type of application which the users implement, except to the extent that they require different services or facilities.

4. Tariffs for facilities additional to the provision of connection to the fixed public telephone network and publicly available telephone services shall, in accordance with Community law, be sufficiently unbundled, so that the user is not required to pay for facilities which are not necessary for the service requested.

5. Tariff changes shall be implemented only after an appropriate public notice period, set by the national regulatory authority, has been observed.

6. A Member State may authorize its national regulatory authority not to apply the requirements of paragraphs 2, 3, 4 or 5 in a specific geographical area where it is satisfied that there is effective competition in the relevant telephone services market.

Article 18 Cost accounting principles

1. Member States shall ensure that, where an organization has an obligation for its tariffs to follow the principle of cost orientation in accordance with Article 17, the cost accounting systems operated by such organizations are suitable for the implementation of Article 17 and that compliance with such systems is verified by a competent body which is independent of those organizations.

National regulatory authorities shall ensure that a statement concerning compliance is published annually.

2. National regulatory authorities shall ensure that a description of the cost accounting system referred to in paragraph 1, showing the main categories under which costs are gathered and the rules used for the allocation of costs to the voice telephony service, is made available to them on request. National regulatory authorities shall submit to the Commission on request information on the cost accounting systems applied by the organizations concerned.

3. Where and as long as the provision of public telecommunications networks and voice telephony services are subject to special or exclusive rights in a Member State, the system referred to in paragraph 1 shall, without prejudice to the last subparagraph of this paragraph, include the following elements:

(a) the costs of the voice telephony service shall in particular include the direct costs incurred by the telecommunications organizations in setting up, operating and maintaining the voice telephony service and in marketing and billing the service;

(b) common costs, that is costs which cannot be directly assigned to either the voice telephony service or other activities, shall be allocated as follows:

(i) whenever possible, common cost categories shall be allocated on the basis of direct analysis of the origin of the costs themselves;

(ii) when direct analysis is not possible, common cost categories shall be allocated on the basis of an indirect linkage to another cost category or group of cost categories for which a direct assignment or allocation is possible; the indirect linkage shall be based on comparable cost structures;

(iii) when neither direct nor indirect measures of cost allocation can be found, the cost category shall be allocated on the basis of a general allocator computed by using the ratio of all expenses directly or indirectly assigned or allocated, on the one hand, to the voice telephony service and, on the other hand, to other services.

Other cost accounting systems may be applied if they are suitable for the implementation of Article 17 and have been approved as such by the national regulatory authority for application by the telecommunications organizations, subject to the Commission being informed prior to their application.

4. Member States shall ensure that the financial accounts of all organizations providing fixed public telephone networks and/or publicly available telephone services are drawn up, submitted to audit and published in accordance with the provisions of national and Community legislation applying to commercial undertakings. Detailed accounting information shall be made available to the national regulatory authority on its request and in confidence.

Article 19 Discounts and other special tariff provisions

Member States shall ensure that, where an organisation has an obligation for its tariffs to follow the principle of cost orientation in accordance with Article 17, discount schemes for end users (including consumers) are fully transparent and published and applied in accordance with the principle of non-discrimination.

National regulatory authorities may require such discount schemes to be modified or withdrawn.

Article 20 Specifications for network access, including the socket

1. Standards suitable for access to fixed public telephone networks shall be published in the ONP list of standards referred to in Article 5 of Directive 90/387/EC.

2. Where telephone services are supplied to users over the ISDN network at the S/T reference point, national regulatory authorities shall ensure that the ISDN network termination points comply with the relevant physical interface specifications, in particular those for the socket, referenced in the ONP list of standards.

Article 21 Non-payment of bills

Member States shall authorize specified measures, which shall be proportionate, non-discriminatory and published in the manner laid down in Article 11 (4), to cover non-payment of telephone bills for use of the fixed public telephone network. These measures shall ensure that due warning is given to the subscriber beforehand of any consequent service interruption or disconnection.

Except in cases of persistent late or non-payment, these measures shall ensure, as far as is technically feasible, that any service interruption is confined to the service concerned, and that complete disconnection takes place only after a stated period during which calls are permitted that do not incur a charge to that subscriber.

Article 22 Conditions for the termination of offerings

1. The provisions of this article shall apply where and for as long as the provision of public telecommunications networks and publicly available voice telephony services are subject to special or exclusive rights in a Member State.

2. National regulatory authorities shall ensure that service offerings of organizations with such special or exclusive rights continue for a reasonable period of time and that termination of an offering, or a change that materially alters the use that can be made of it, can be done only after consultation with users affected and an appropriate public notice period set by the national regulatory authority.

3. Without prejudice to other rights of appeal provided for by national law, Member States shall ensure that users, and where national law so provides, organizations representing user and/or consumer interests, can bring before the national regulatory authority cases where the users affected do not agree with the termination date as envisaged by the organization concerned.

Article 23 Variation of published conditions

1. The provisions of this article shall apply where and for as long as the provision of public telecommunications networks and publicly available voice telephony services are subject to special or exclusive rights in a Member State.

2. Where in response to a particular request an organization with such special or exclusive rights considers it unreasonable to provide a connection to the fixed public telephone network under its published tariffs and supply conditions, it must seek the agreement of the national regulatory authority to vary those conditions in that case.

CHAPTER V PROCEDURAL PROVISIONS

Article 24 Consultation

Member States shall ensure consultation, in accordance with national procedures, with the representatives of organizations providing public telecommunications networks, of users, consumers, manufacturers and service providers on issues related to the scope, affordability and quality of telephone services. Where appropriate, the Commission shall ensure additional consultation at the European level on these issues.

Article 25 Notification and reporting

1. Member States shall notify to the Commission any changes in the information which had to be published under Directive 95/62/EC. The Commission shall publish this information in the Official Journal of the European Communities.

2. Member States shall also notify to the Commission:

- organizations with significant market power for the purposes of this Directive,

- details of situations where organizations providing fixed public telephone networks and/or publicly available telephone services no longer have to follow the principle of cost orientation of tariffs, in accordance with Article 17 (6).

The Commission may request national regulatory authorities to provide their reasons for classifying or not classifying organizations in these two categories.

3. Where a Member State maintains special or exclusive rights for the provision of public telecommunications networks and publicly available telephone services, national regulatory authorities shall keep available and submit to the Commission on request details of individual cases brought before them, other than those covered by Article 21, where access to or use of the fixed public telephone network or voice telephony service has been restricted or denied, including the measures taken and their justification.

Article 26 Conciliation and national dispute resolution

Without prejudice to:

(a) any action that the Commission or any Member State may take pursuant to the Treaty;

(b) the rights of the person invoking the procedure set out in points 3 and 4, of the organizations concerned or of any other person under applicable national law, except insofar as they enter into an agreement for the resolution of disputes between them;

(c) the provisions of Article 10 (2) which allow the national regulatory authorities to alter the conditions of subscriber contracts,

the following procedures shall be available:

1. Member States shall ensure that any party, including for example users, service providers, consumers, or other organizations having an unresolved dispute with an organization providing fixed public telephone networks and/or publicly available telephone services concerning an alleged infringement of the provisions of this Directive, shall have a right of appeal to the national regulatory authority or another independent body. Easily accessible and in principle inexpensive procedures shall be available at a national level to resolve such disputes in a fair, transparent and timely manner. These procedures shall in particular apply in cases where users are in dispute with an organization about their telephone bills, or the terms and conditions under which telephone service is provided.

2. A user or an organization may, where the dispute involves organizations in more than one Member State, invoke the concilliation procedure provided for in points 3 and 4 by means of a written notification to the national regulatory authority and to the Commission. Member States may also allow their national regulatory authority to invoke the conciliation procedure.

3. Where the national regulatory authority or the Commission finds that there is a case for further examination, following a notification based on point 2, it can refer the matter to the chairman of the ONP Committee.

4. In the circumstances referred to in point 3, the chairman of the ONP Committee shall initiate the procedure described below if satisfied that all reasonable steps have been taken at national level:

(a) the chairman of the ONP Committee shall convene as soon as possible a working group including at least two members of the ONP Committee and one representative of the national regulatory authorities concerned, and the chairman of the ONP Committee or another official of the Commission appointed by him. The working group shall be chaired by the representative of the Commission and shall normally meet within ten days of having been convened. The chairman of the working group may decide, upon proposal by any of the members of the working group, to invite a maximum of two other persons as experts to advise it;

(b) the working group shall give the party invoking this procedure, the national regulatory authorities of the Member States involved and the organizations involved the opportunity to present their opinions in oral or written form;

(c) the working group shall endeavour to reach agreement between the parties involved within three months of the date of receipt of the notification referred to in paragraph 2. The chairman of the ONP Committee shall inform that Committee of the results of the procedure so that it may express its views.

5. The party invoking the procedure shall bear its own costs of participating in this procedure.

Article 27 Deferment of certain obligations

The dates laid down in any deferments granted in relation to Articles 12 and 13 of Directive 95/62/EC shall remain unchanged.

Article 28 Technical adjustment

Modifications necessary to adapt Annexes I, II and III to this Directive to technological developments or to changes in market demand shall be determined in accordance with the procedure laid down in Article 29.

Article 29 Advisory Committee procedure

1. The Commission shall be assisted by the ONP Committee.

The Committee shall, in particular, consult the representatives of the organizations providing fixed public telephone networks, publicly available telephone services, users, consumers and manufactures.

2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter, if necessary by taking a vote.

The opinion shall be recorded in the minutes; in addition, each Member State shall have the right to ask to have its position recorded in the minutes.

The Commission shall take the utmost account of the opinion delivered by the Committee. It shall inform the Committee of the manner in which its opinion has been taken into account.

Article 30 Review

The Commission shall examine and report to the European Parliament and to the Council on the functioning of this Directive, on the first occasion not later than 31 December 1999, taking into account the report on universal service to be published by the Commission before 1 January 1998. The review shall be based inter alia on the information provided by the Member States to the Commission, and shall in particular examine:

- the scope of the Directive, and in particular whether some of its provisions should apply to mobile telephony,

- the provisions in Chapter II in the light of changes in market conditions, users demand and technological progress,

- the maintenance of the obligations imposed under Articles 17, 18 and 19 in the light of the emergence of competition.

Where necessary, further periodic reviews may ne proposed in the report.

Article 31 Transposition

1. Member States shall take the measures necessary to comply with this Directive before 31 December 1997. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. Member States shall inform the Commission of the main provisions of national law which they adopt in the field governed by this Directive.

Article 32 Repeal of Directive 95/62/EC

Directive 95/62/EC is hereby repealed with effect from 31 December 1997, without prejudice to Member States' obligations for implementation of that Directive according to the timescales laid down in Annex IV.

References made to the repealed Directive shall be construed as being made to this Directive.

Annex V provides a table showing the relationship between the Articles of Directive 95/62/EC and the Articles of this Directive.

Article 33 Entry into force

This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.

Article 34 Addressees

This Directive is addressed to the Member States.

(1) Council Resolution of 7. February 1994 on universal service principles in the telecommunications sector (OJ No C 48, 16. 2. 1994, p. 1), and Council Resolution of 18 September 1995 on the implementation of the future regulatory framework for telecommunications (OJ No C 258, 3. 10. 1995, p. 1).

(2) European Parliament Resolution of 19 May 1995 on the Green Paper on the liberalization of telecommunications infrastructure and cable television networks - Part II A4-0111/95 (OJ No C 151, 19. 6. 1995).

(3) Opinion of the Economic and Social Committee of 13 September 1995 on the Green Paper on the liberalization of telecommunications infrastructure and cable television networks - Part II (OJ No C 301, 13. 11. 1995).

(4) Opinion No 21/95 of the Committee of the Regions on the Commission communication, 'Europe's way to the information society. An action plan` (OJ No C 210, 14. 8. 1995, p. 109).

(5) Common position (EC) No 34/96 adopted by the Council on 18 June 1996 with a view to adopting a Directive of the European Parliament and the Council on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision (ONP) (OJ No C 220, 29. 7. 1996, p. 13).

(6) See Commission communication on universal service for telecommunications in the perspective of a fully liberalized environment [COM(96) 73 final, 13 March 1996].

(7) OJ No L 192, 28. 6. 1990, p. 1.

(8) OJ No L 321, 30. 12. 1995, s. 6.

(1) See COM(96) 73 final, 13 March 1996.

(2) OJ No L 281, 23. 11. 1995, p. 31.

(3) Common position (EC) No 57/96 adopted by the Council on 12 September 1996 with a view to adopting a Directive of the European Parliament and the Council concerning the processing of personal data and protection of privacy in the telecommunications sector, in particular in the integrated services digital network (ISDN) and in digital mobile networks (OJ No C 315, 24. 10. 1995, p. 30).

(4) OJ No L 217, 6. 8. 1991, p. 31.

ANNEX I

DESCRIPTION OF FACILITIES REFERRED TO IN ARTICLES 14 AND 15

PART 1 Facilities referred to in Article 14 (1)

(a) Tone dialling or DTMF (dual-tone multifrequency operation) The fixed public telephone network supports the use of DTMF telephones for signalling to the exchange, using tones as defined in ITU-T recommendation Q.23, and supports the same tones for end-to-end signalling through the network, both within a Member State and between Member States.

(b) Selective call barring for outgoing calls

The facility whereby the subscriber can, on request to the telephone service provider, bar outgoing calls of defined types or to defined types of numbers.

PART 2 List of facilities referred to in Article 15 (1)

(a) Calling-line identification The calling party's number is presented to the called party prior to the call being established.

This facility should be provided in accordance with relevant legislation on protection of personal data and privacy, such as Directive 95/46/EC.

(b) Direct dialling-in (or facilities offering equivalent functionality) Users on a private branch exchange (PBX) or similar private system can be called directly from the fixed public telephone network, without intervention of the PBX attendant.

(c) Call forwarding

Incoming calls sent to another destination in the same or another Member State (e.g. on no reply, on busy, or unconditionally).

This facility should be provided in accordance with relevant legislation on protection of personal data and privacy, such as Directive 95/46/EC.

PART 3

List of services and facilities referred to in Article 15 (2) (a) Community-wide access to green/freephone services

These services, variously known as green numbers, freephone services, 0800 numbers, etc., cover dial-up services where the caller pays nothing for the call to the number dialled.

(b) Shared cost services

These services cover dial-up services where the caller pays only part of the cost of the call to the number dialled.

(c) Community-wide premium rate services/shared revenue services

Premium rate service is a facility whereby charges for the use of a service accessed through a telecommunications network are combined with the network call charges.

(d) Community-wide calling-line identification

The calling party's number is presented to the called party prior to the call being established.

This facility should be provided in accordance with relevant legislation on protection of personal data and privacy, such as Directive 95/46/EC.

(e) Access to operator services in other Member States

Users in one Member State can call the operator/assistance service in another Member State.

(f) Access to directory enquiry services in other Member States

Users in one Member State can call the directory enquiry service in another Member State.

This facility should be provided in accordance with relevant legislation on protection of personal data and privacy, such as Directive 95/46/EC.

ANNEX II

HEADINGS FOR INFORMATION TO BE PUBLISHED IN ACCORDANCE WITH ARTICLE 11

PART 1 Information to be supplied to the national regulatory authority in accordance with article 11 (2)

TECHNICAL CHARACTERISTICS OF NETWORK INTERFACES

Technical characteristics of interfaces at commonly provided network termination points are required, including where applicable reference to relevant national and/or international standards or recommendations:

- for analogue and/or digitally presented networks:

(a) single line interface;

(b) multiline interface;

(c) direct dialling-in (DDI) interface;

(d) other interfaces commonly provided,

- for ISDN (where provided):

(a) specification of basic and primary rate interfaces at the S/T reference points, including the signalling protocol;

(b) details of bearer services able to carry voice telephony services;

(c) other interfaces commonly provided,

- and any other interfaces commonly provided.

In addition to the above information to be submitted to the national regulatory authority on a regular basis in the manner laid down in Article 11 (2), all organizations providing fixed public telephone networks must inform their national regulatory authority, without undue delay, of any particular network characteristics which are found to affect the correct operation of terminal equipment. The national regulatory authority shall make this information available on request to terminal equipment suppliers.

PART 2 Information to be published in accordance with article 11 (3)

Note:

The national regulatory authority has a responsibility to ensure that the information in this Annex is published, in accordance with Article 11 (3). It is for the national regulatory authority to decide which information is to be published by the organizations providing telecommunications networks and/or publicly available telephone services, and which by the national regulatory authority itself.

1. Name(s) and address(es) of organization(s)

Names and head office addresses of organizations providing fixed public telephone networks and/or publicly available telephone services.

2. Telephone services offered

2.1. Scope of the basic service

Description of the basic telephone services offered, indicating what is included in the subscription charge and the periodic rental charge (e.g. operator services, directories, directory services, selective call barring, itemised billing, maintenance, etc.).

Description of optional facilities and features of the telephone service which are tariffed separately from the basic offering, including where applicable reference to the relevant technical standards or specifications to which they conform.

2.2. Tariffs

Covering access, all types of call charges, maintenance, and including details of discounts applied and special and targetted tariff schemes.

2.3. Compensation/refund policy

Including specific details of any compensation/refund schemes offered.

2.4. Types of maintenance service offered

2.5. Standard contract conditions

Including any minimum contractual period, if relevant.

3. Conditions for attachment of terminal equipment

This shall include a complete overview of requirements for terminal equipment in line with the provisions of Directive 91/263/EEC or 93/97/EEC, including, where appropriate, conditions concerning customer premises wiring and location of the network termination point.

4. Restrictions on access and use

This shall include any restrictions on access and use imposed in accordance with the requirements of Article 13.

ANNEX III

SUPPLY-TIME AND QUALITY-OF-SERVICE INDICATORS, DEFINITIONS AND MEASUREMENT METHODS IN ACCORDANCE WITH THE REQUIREMENTS OF ARTICLE 12

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ANNEX IV

TIMESCALE REFERRED TO IN ARTICLE 33

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ANNEX V

COMPARATIVE TABLE

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