Telecoms Package Diff COD 2007 0247 Commission Amended Proposal Parliament First Reading Council Common Position

De La Quadrature du Net


Telecoms Package: Comparison Proposal for a Directive of the European Parliament and of the Council amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and services, and 2002/20/EC on the authorisation of electronic communications networks and services (COD/2007/0247)


European Commission Amended Proposal / European Parliament First Reading / Council of European Union Common Position − 2008-11-06 / 2008-09-24 / 2009-02-09

Directive on access to, and interconnection of, electronic communications networks and associated facilities (Access 2002/19/EC)

Article 9

European Commission Amended Proposal European Parliament First Reading Council of European Union Common Position
Article 9 − Obligation of transparency Article 9 − Obligation of transparency Article 9 − Obligation of transparency
1. National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, including any restrictions on access to services and applications, terms and conditions for supply and use, and prices. 1. National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, including any restrictions on access to services and applications, traffic management policies, terms and conditions for supply and use, and prices. 1. National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, including any restrictions on access to services and applications, terms and conditions for supply and use, including traffic management policies, and prices.
2. In particular where an operator has obligations of non-discrimination, national regulatory authorities may require that operator to publish a reference offer, which shall be sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested, giving a description of the relevant offerings broken down into components according to market needs, and the associated terms and conditions including prices. The national regulatory authority shall, inter alia, be able to impose changes to reference offers to give effect to obligations imposed under this Directive. 2. In particular where an operator has obligations of non-discrimination, national regulatory authorities may require that operator to publish a reference offer, which shall be sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested, giving a description of the relevant offerings broken down into components according to market needs, and the associated terms and conditions including prices. The national regulatory authority shall, inter alia, be able to impose changes to reference offers to give effect to obligations imposed under this Directive. 2. In particular where an operator has obligations of non-discrimination, national regulatory authorities may require that operator to publish a reference offer, which shall be sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested, giving a description of the relevant offerings broken down into components according to market needs, and the associated terms and conditions including prices. The national regulatory authority shall, inter alia, be able to impose changes to reference offers to give effect to obligations imposed under this Directive.
3. National regulatory authorities may specify the precise information to be made available, the level of detail required and the manner of publication. 3. National regulatory authorities may specify the precise information to be made available, the level of detail required and the manner of publication. 3. National regulatory authorities may specify the precise information to be made available, the level of detail required and the manner of publication.
4. Notwithstanding paragraph 3, where an operator has been found, in accordance with Article 14 of Directive 2002/21/EC (Framework Directive), to have significant market power in a relevant market relating to local access at a fixed location, national regulatory authorities shall ensure the publication of a reference offer containing at least the elements set out in Annex II. 4. Notwithstanding paragraph 3, where an operator has been found, in accordance with Article 14 of Directive 2002/21/EC (Framework Directive), to have significant market power in a relevant market relating to local access at a fixed location, national regulatory authorities shall ensure the publication of a reference offer containing at least the elements set out in Annex II. 4. Notwithstanding paragraph 3, where an operator has obligations under Article 12 concerning wholesale network infrastructure access, including unbundled access to the local loop at a fixed location, national regulatory authorities shall ensure the publication of a reference offer containing at least the elements set out in Annex II.
5. The Commission may adopt the necessary amendments to Annex II in order to adapt it to technological and market developments. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14(3). On imperative grounds of urgency, the Commission may use the urgency procedure referred to in Article 14(4). In implementing the provisions of this paragraph, the Commission may be assisted by the Authority. 5. The Commission may adopt the necessary amendments to Annex II in order to adapt it to technological and market developments. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14(3). On imperative grounds of urgency, the Commission may use the urgency procedure referred to in Article 14(4). In implementing the provisions of this paragraph, the Commission may be assisted by the Authority. 5. The Commission may adopt the necessary amendments to Annex II in order to adapt it to technological and market developments. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14(3). On imperative grounds of urgency, the Commission may use the urgency procedure referred to in Article 14(4). In implementing the provisions of this paragraph, the Commission may be assisted by GERT.

Article 12

European Commission Amended Proposal European Parliament First Reading Council of European Union Common Position
Article 12 − Obligations of access to, and use of, specific network facilities Article 12 − Obligations of access to, and use of, specific network facilities Article 12 − Obligations of access to, and use of, specific network facilities
1. A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities, inter alia in situations where the national regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest. 1. A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities, inter alia in situations where the national regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest. 1. A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities, inter alia in situations where the national regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest.
Operators may be required inter alia: Operators shall be required inter alia: Operators may be required inter alia:
(a) to give third parties access to specified network elements and/or facilities, including unbundled access to the local loop; (a) to give third parties access to specified network elements and/or facilities, including unbundled access to the local loop; (a) to give third parties access to specified network elements and/or facilities, including access to network elements which are not active and/or unbundled access to the local loop, to inter alia allow carrier selection and/or pre-selection and/or subscriber line resale offer;
(b) to negotiate in good faith with undertakings requesting access; (b) to negotiate in good faith with undertakings requesting access; (b) to negotiate in good faith with undertakings requesting access;
(c) not to withdraw access to facilities already granted; (c) not to withdraw access to facilities already granted; (c) not to withdraw access to facilities already granted;
(d) to provide specified services on a wholesale basis for resale by third parties; (d) to provide specified services on a wholesale basis for resale by third parties; (d) to provide specified services on a wholesale basis for resale by third parties;
(e) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services; (e) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services; (e) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services;
(f) to provide co-location or other forms of facility sharing, including the sharing of ducts, buildings or entry to buildings, antennae towers and other supporting constructions, masts, manholes, cabinets and other network elements which are not active; (f) to provide co-location or other forms of facility sharing, including the sharing of ducts, buildings or entry to buildings, antennae towers and other supporting constructions, masts, manholes, cabinets and other network elements which are not active; (f) to provide co-location or other forms of associated facility sharing, including the sharing of ducts, buildings or entry to buildings, antennae, towers and other supporting constructions, conduits, masts, manholes and cabinets;
(fa) to provide third parties with a reference offer for the granting of access to ducts;
(g) to provide specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services or roaming on mobile networks; (g) to provide specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services or roaming on mobile networks; (g) to provide specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services or roaming on mobile networks;
(h) to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services; (h) to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services; (h) to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services;
(i) to interconnect networks or network facilities; (i) to interconnect networks or network facilities; (i) to interconnect networks or network facilities;
(j) to provide access to associated services such as identity, location and presence capability. (j) to provide access to associated services such as identity, location and presence capability. (j) to provide access to associated services such as identity, location and presence service.
National regulatory authorities may attach to those obligations conditions covering fairness, reasonableness and timeliness. National regulatory authorities may attach to those obligations conditions covering fairness, reasonableness and timeliness. National regulatory authorities may attach to those obligations conditions covering fairness, reasonableness and timeliness.
2. When national regulatory authorities are considering whether to impose the obligations referred in paragraph 1, and in particular when assessing whether such obligations would be proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors: 2. When national regulatory authorities are considering whether to impose the obligations referred in paragraph 1, and in particular when assessing whether such obligations would be proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors: 2. When national regulatory authorities are considering whether to impose the obligations referred in paragraph 1, and in particular when assessing how such obligations would be imposed proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors:
(a) the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and access involved, including the viability of other upstream access products such as access to ducts; (a) the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and access involved, including the viability of other upstream access products such as access to ducts; (a) the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and/or access involved, including the viability of other upstream access products such as access to ducts;
(b) the feasibility of providing the access proposed, in relation to the capacity available; (b) the feasibility of providing the access proposed, in relation to the capacity available; (b) the feasibility of providing the access proposed, in relation to the capacity available;
(c) the initial investment by the facility owner, bearing in mind any public investment made and the risks involved in making the investment, when imposing pricing obligations pursuant to Article 13; (c) the initial investment by the facility owner, bearing in mind any public investment made and the risks involved in making the investment, including an appropriate risk-sharing among those undertakings enjoying access to these new facilities; (c) the initial investment by the facility owner, bearing in mind any public investment made and the risks involved in making the investment;
(d) the need to safeguard competition in the long term, in particular infrastructure-based competition (d) the need to safeguard competition in the long term, in particular infrastructure-based competition (d) the need to safeguard competition in the long term, including through economically efficient infrastructure-based competition;
(e) where appropriate, any relevant intellectual property rights; (e) where appropriate, any relevant intellectual property rights; (e) where appropriate, any relevant intellectual property rights;
(f) the provision of pan-European services. (f) the provision of pan-European services. (f) the provision of pan-European services.
3. When imposing obligations on an operator to provide access in accordance with the provisions of this Article, national regulatory authorities may lay down technical or operational conditions to be met by the provider and/or beneficiaries of such access where necessary to ensure normal operation of the network. Obligations to follow specific technical standards or specifications shall be in compliance with the standards and specifications laid down in accordance with Article 17 of Directive 2002/21/EC (Framework Directive). 3. When imposing obligations on an operator to provide access in accordance with the provisions of this Article, national regulatory authorities may lay down technical or operational conditions to be met by the provider and/or beneficiaries of such access where necessary to ensure normal operation of the network. Obligations to follow specific technical standards or specifications shall be in compliance with the standards and specifications laid down in accordance with Article 17 of Directive 2002/21/EC (Framework Directive). 3. When imposing obligations on an operator to provide access in accordance with the provisions of this Article, national regulatory authorities may lay down technical or operational conditions to be met by the provider and/or beneficiaries of such access where necessary to ensure normal operation of the network. Obligations to follow specific technical standards or specifications shall be in compliance with the standards and specifications laid down in accordance with Article 17 of Directive 2002/21/EC (Framework Directive).

Directive on the authorisation of electronic communications networks and services (Authorisation 2002/20/EC)

Annex I

European Commission Amended Proposal European Parliament First Reading Council of European Union Common Position
A. Conditions which may be attached to a general authorisation A. Conditions which may be attached to a general authorisation A. Conditions which may be attached to a general authorisation
19. Compliance with national measures implementing Directive 2001/29/EC of the European Parliament and of the Council (OJ L 167, 22.6.2001, p. 10.) and Directive 2004/48/EC of the European Parliament and of the Council (OJ L 157, 30.4.2004, p. 45.). 19. Compliance with national measures implementing Directive 2001/29/EC of the European Parliament and of the Council (OJ L 167, 22.6.2001, p. 10.) and Directive 2004/48/EC of the European Parliament and of the Council (OJ L 157, 30.4.2004, p. 45.). 19. Transparency obligations on undertakings providing electronic communications services available to the public to ensure end-to-end connectivity, in conformity with national measures implementing Directive 2001/29/EC of the objectives and principles set out in Article 8 of the Council (OJ L 167, 22.6.2001, p. 10.) and Directive 2002/21/EC (Framework Directive), disclosure regarding traffic management policies and, where necessary and proportionate, access by national regulatory authorities to such information needed to verify the accuracy of such disclosure.

Directive on a common regulatory framework for electronic communications networks and services (Framework 2002/21/EC)

Article 8

European Commission Amended Proposal European Parliament First Reading Council of European Union Common Position
Article 8 − Policy objectives and regulatory principles Article 8 − Policy objectives and regulatory principles Article 8 − Policy objectives and regulatory principles
1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives. 1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives. 1. Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3 and 4. Such measures shall be proportionate to those objectives.
Unless otherwise provided in Article 9 regarding radio frequencies, Member States shall take the utmost account of the desirability of making regulations technologically neutral and shall ensure that, in carrying out the regulatory tasks specified in this Directive and the Specific Directives, in particular those designed to ensure effective competition, national regulatory authorities do likewise. Unless otherwise provided in Article 9 regarding radio frequencies or unless otherwise required in order to fulfil the objectives laid down in paragraphs 2 to 4, Member States shall take the utmost account of the desirability of making regulations technologically neutral and shall ensure that, in carrying out the regulatory tasks specified in this Directive and the Specific Directives, in particular those designed to ensure effective competition, national regulatory authorities do likewise. Unless otherwise provided for in Article 9 regarding radio frequencies, Member States shall take the utmost account of the desirability of making regulations technologically neutral and shall ensure that, in carrying out the regulatory tasks specified in this Directive and the Specific Directives, in particular those designed to ensure effective competition, national regulatory authorities do likewise.
National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism. National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism. National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of cultural and linguistic diversity, as well as media pluralism.
2. The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia: 2. The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia: 2. The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by inter alia:
(a) ensuring that users, including disabled users, elderly users, and users with special social needs derive maximum benefit in terms of choice, price, and quality; (a) ensuring that users, including disabled users, elderly users, and users with special social needs derive maximum benefit in terms of choice, price, and quality, and that providers are compensated for any additional net cost that they can show that they incurred as a result of the imposition of such public service obligations; (a) ensuring that users, including disabled users, elderly users, and users with special social needs derive maximum benefit in terms of choice, price, and quality;
(b) ensuring that there is no distortion or restriction of competition in the electronic communications sector, in particular for the delivery of and access to content and services across all networks; (b) ensuring that there is no distortion or restriction of competition in the electronic communications sector, in particular for the delivery of and access to content and services across all networks; (b) ensuring that there is no distortion or restriction of competition in the electronic communications sector;
(c) encouraging and facilitating efficient market-driven investment in infrastructure, and promoting innovation; and (c) encouraging and facilitating efficient market-driven investment in infrastructure, and promoting innovation; and (c) encouraging and facilitating efficient market-driven investment in infrastructure, and promoting innovation; and
(d) encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources. (d) encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources. (d) encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources.
3. The national regulatory authorities shall contribute to the development of the internal market by inter alia: 3. The national regulatory authorities shall contribute to the development of the internal market by inter alia: 3. The national regulatory authorities shall contribute to the development of the internal market by inter alia:
(a) removing remaining obstacles to the provision of electronic communications networks, associated facilities and services and electronic communications services at European level; (a) removing remaining obstacles to the provision of electronic communications networks, associated facilities and services and electronic communications services at European level; (a) removing remaining obstacles to the provision of electronic communications networks, associated facilities and services and electronic communications services at European level;
(b) encouraging the establishment and development of trans-European networks and the interoperability of pan-European services, and end-to-end connectivity; (b) encouraging the establishment and development of trans-European networks and the interoperability of pan-European services, and end-to-end connectivity; (b) encouraging the establishment and development of trans-European networks and the interoperability of pan-European services, and end-to-end connectivity;
(d) working with the Commission and the Authority so as to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives. (d) working with the Commission and the Authority so as to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives. (d) cooperating with each other, with the Commission and GERT so as to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives.
4. The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia: 4. The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia: 4. The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia:
(a) ensuring all citizens have access to a universal service specified in Directive 2002/22/EC (Universal Service Directive); (a) ensuring all citizens have access to a universal service specified in Directive 2002/22/EC (Universal Service Directive); (a) ensuring all citizens have access to a universal service specified in Directive 2002/22/EC (Universal Service Directive);
(b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved; (b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved; (b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved;
(c) contributing to ensuring a high level of protection of personal data and privacy; (c) contributing to ensuring a high level of protection of personal data and privacy; (c) contributing to ensuring a high level of protection of personal data and privacy;
(d) promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services; (d) promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services; (d) promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly available electronic communications services;
(e) addressing the needs of specific social groups, in particular disabled users, elderly users and users with special social needs; (e) addressing the needs of specific social groups, in particular disabled users, elderly users and users with special social needs; (e) addressing the needs of specific social groups, in particular disabled users, elderly users and users with special social needs;
(f) ensuring that the integrity and security of public communications networks are maintained; and (f) ensuring that the integrity and security of public communications networks are maintained; and (f) ensuring that the integrity and security of public communications networks are maintained;
(g) applying the principle that end-users should be able to access and distribute any lawful content and use any lawful applications and/or services of their choice and for this purpose contributing to the promotion of lawful content in accordance with Article 33 of Directive 2002/22/EC (Universal Service Directive). (g) applying the principle that end-users should be able to access and distribute any lawful content and use any lawful applications and/or services of their choice and for this purpose contributing to the promotion of lawful content in accordance with Article 33 of Directive 2002/22/EC (Universal Service Directive). (g) applying the principle that end-users should be able to access and distribute any lawful content and use any lawful applications and/or services of their choice and for this purpose contributing to the promotion of lawful content in accordance with Article 33 of Directive 2002/22/EC (Universal Service Directive).
(ga) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened, in which case the ruling may be subsequent. (ga) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened, in which case the ruling may be subsequent. (ga) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened, in which case the ruling may be subsequent.
4a. The national regulatory authorities shall, in pursuit of the policy objectives referred to in paragraphs 2, 3 and 4, apply objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia: 4a. The national regulatory authorities shall, in pursuit of the policy objectives referred to in paragraphs 2, 3 and 4, apply objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia: 5. The national regulatory authorities shall, in pursuit of the policy objectives referred to in paragraphs 2, 3 and 4, apply objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia:
(a) promoting regulatory predictability by ensuring a consistent regulatory approach over successive review periods; (a) promoting regulatory predictability through the continuity of remedies over several market reviews as appropriate; (a) promoting regulatory predictability;
(b) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services; (b) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services; (b) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;
(c) safeguarding competition to the benefit of consumers and promoting infrastructure-based competition wherever possible; (c) safeguarding competition to the benefit of consumers and promoting infrastructure-based competition wherever possible; (c) safeguarding competition to the benefit of consumers and promoting, where appropriate, infrastructure-based competition;
(d) promoting market driven investment and innovation in new and enhanced infrastructures including by ensuring that the cost of access to facilities takes appropriate account of the risks incurred by the investors and those undertakings enjoying access; (d) promoting market driven investment and innovation in new and enhanced infrastructures including by encouraging sharing of investment and by ensuring appropriate sharing of risk between investors and those undertakings enjoying access to the new facilities; (d) promoting efficient investment and innovation in new and enhanced infrastructures, including by taking into account investment risks;
(e) taking due account of the variety of conditions relating to competition and consumers that exist in the different geographic areas within a Member State; (e) taking due account of the variety of conditions relating to competition and consumers that exist in the different geographic areas within a Member State; (e) taking due account of the variety of conditions relating to competition and consumers that exist in the various geographic areas within a Member State;
(f) imposing ex-ante regulatory obligations only where there is no effective and sustainable competition, and relaxing or lifting such obligations as soon as that condition is fulfilled. (f) imposing ex-ante regulatory obligations only where there is no effective and sustainable competition, and relaxing or lifting such obligations as soon as that condition is fulfilled. (f) imposing ex-ante regulatory obligations only where there is no effective and sustainable competition and relaxing or lifting such obligations as soon as such competition exists.

Article 9

European Commission Amended Proposal European Parliament First Reading Council of European Union Common Position
Article 9 − Management of radio frequencies for electronic communications services Article 9 − Management of radio frequencies for electronic communications services Article 9 − Management of radio frequencies for electronic communications services
1. Taking due account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio frequencies for electronic communications services in their territory in accordance with Articles 8 and 8b. They shall ensure that the allocation and assignment of such radio frequencies by national regulatory authorities are based on objective, transparent, non discriminatory and proportionate criteria. In so doing, they shall act in accordance with their obligations under the Treaty and, where applicable, corresponding international agreements, and may take public policy considerations into account as set out below. 1. Taking due account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio frequencies for electronic communications services in their territory in accordance with Articles 8 and 8b. They shall ensure that the allocation and assignment of such radio frequencies by national regulatory authorities are based on objective, transparent, non discriminatory and proportionate criteria. In so doing, they shall act in accordance with their obligations under the Treaty and, where applicable, corresponding international agreements and may take public policy considerations into account. 1. Taking due account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio frequencies for electronic communication services in their territory in accordance with Article 8. They shall ensure that spectrum allocation used for electronic communications services and issuing general authorisations or individual rights of use of such radio frequencies by competent national regulatory authorities are based on objective, transparent, non-discriminatory and proportionate criteria. In doing so, they shall respect relevant international agreements and may take public policy considerations into account.
2. Member States shall promote the harmonisation of use of radio frequencies across the Community, consistent with the need to ensure effective and efficient use thereof and in pursuit of benefits for the consumer such as economies of scale and interoperability of services. In so doing, they shall act in accordance with Articles 8b and 9c of this Directive and Decision No 676/2002/EC (Radio Spectrum Decision). 2. Member States shall promote the harmonisation of use of radio frequencies across the Community, consistent with the need to ensure effective and efficient use thereof and in pursuit of benefits for the consumer such as economies of scale and interoperability of services. In so doing, they shall act in accordance with Articles 8b and 9c of this Directive and Decision No 676/2002/EC (Radio Spectrum Decision). 2. Member States shall promote the harmonisation of the use of radio frequencies across the Community, consistent with the need to ensure effective and efficient use thereof and in pursuit of benefits for the consumer such as economies of scale and interoperability of services. In so doing, they shall act in accordance with Articles 8b and 9c of this Directive and Decision No 676/2002/EC (Radio Spectrum Decision).
3. Unless otherwise provided in the second subparagraph or in the measures adopted pursuant to Article 9c, Member States shall, ensure that all types of technology used for electronic communications services may be used in the radio frequency bands available for electronic communications services. 3. Unless otherwise provided in the second subparagraph or in the measures adopted pursuant to Article 9c, Member States shall, ensure that all types of technology used for electronic communications services may be used in the radio frequency bands available for electronic communications services in accordance with the ITU Radio Regulations. 3. Unless otherwise provided in the second subparagraph, Member States shall ensure that all types of technology used for electronic communications services may be used in the radio frequency bands, available for electronic communications services in accordance with their National Frequency Allocation Plan and the ITU Radio Regulations.
Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of technology used for electronic communications services where this is necessary to: Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of technology used for electronic communications services where this is necessary to: Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for electronic communications services where this is necessary to:
(a) avoid harmful interference, notably to ensure technical quality of service and the efficient use of radio frequencies, (a) avoid harmful interference, notably to ensure technical quality of service and the possibility of harmful interference, (a) avoid harmful interference,
(b) protect public health against electromagnetic fields, (b) protect public health against electromagnetic fields, (b) protect public health against electromagnetic fields,
(ba) ensure technical quality of service, (c) ensure technical quality of service,
(c) ensure maximisation of radio frequency sharing where the use of frequencies is subject to a general authorisation, (c) ensure maximisation of radio frequency sharing, (d) ensure maximisation of radio frequency sharing,
(ca) safeguard the efficient use of radio frequencies, (e) safeguard efficient use of spectrum, or
(d) fulfil a general interest objective in accordance with paragraph 4. (d) fulfil a general interest objective in accordance with paragraph 4. (f) ensure the fulfilment of a general interest objective in accordance with paragraph 4.
4. Unless otherwise provided in the second subparagraph or in the measures adopted pursuant to Article 9c , Member States shall ensure that all types of electronic communications services may be provided in the radio frequency bands available for electronic communications services as identified in their national frequency allocation plans. The Member States may, however, provide for proportionate and non discriminatory restrictions to the types of electronic communications services to be provided. 4. Unless otherwise provided in the second subparagraph, Member States shall ensure that all types of electronic communications services may be provided in the radio frequency bands available for electronic communications services as identified in accordance with their national frequency allocation plans and with the ITU Radio Regulations. The Member States may, however, provide for proportionate and non discriminatory restrictions to the types of electronic communications services to be provided. 4. Unless otherwise provided for in the second subparagraph, Member States shall ensure that all types of electronic communications services may be provided in the radio frequency bands, available for electronic communications services as identified in accordance with their National Frequency Allocation Plan and non discriminatory restrictions to the ITU Radio Regulations.
Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of electronic communications services to be provided.
Measures that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as defined in national legislation in conformity with Community law, such as safety of life, the promotion of social, regional or territorial cohesion, the avoidance of inefficient use of radio frequencies or the promotion of cultural and media policy objectives such as cultural and linguistic diversity and media pluralism. Measures that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as defined in national legislation in conformity with Community law, such as safety of life, the promotion of social, regional or territorial cohesion, the avoidance of inefficient use of radio frequencies or the promotion of cultural and media policy objectives such as cultural and linguistic diversity and media pluralism. Measures that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as defined by Member States in national legislation in conformity with Community law, such as, and not limited to:
(a) safety of life,
(b) the promotion of social, regional or territorial cohesion,
(c) the avoidance of inefficient use of radio frequencies, or
(d) the promotion of cultural and linguistic diversity and media pluralism, for example by the provision of radio and television broadcasting services.
A measure which prohibits the provision of any other electronic communications service in a specific band may only be provided for where justified by the need to protect safety of life services. A measure which prohibits the provision of any other electronic communications service in a specific band may only be provided for where justified by the need to protect safety of life services. A measure which prohibits the provision of any other electronic communications service in a specific band may only be provided for where justified by the need to protect safety of life services. Member States may also extend such a measure in order to fulfil other general interest objectives.
5. Member States shall regularly review the necessity of the restrictions and measures referred to in paragraphs 3 and 4 and shall make the results of these reviews public. 5. Member States shall regularly review the necessity of the restrictions and measures referred to in paragraphs 3 and 4 and shall make the results of these reviews public. 5. Member States shall regularly review the necessity of the restrictions and measures referred to in paragraphs 3 and 4, and shall make the results of these reviews public.
6. Paragraphs 3 and 4 shall apply to the allocation and assignment of radio frequencies from [The date of transposition of this Directive]. 6. Paragraphs 3 and 4 shall apply to the allocation and assignment of radio frequencies from ... (The date of transposition of this Directive.). 6. Paragraphs 3 and 4 shall apply to spectrum allocated to be used for electronic communications services, general authorisations issued and individual rights of use of radio frequencies granted after ...(The date of transposition of Directive 2009/.../EC [amending Directive 2002/21/EC].).
Spectrum allocations, general authorisations and individual rights of use which existed by ...(The date of transposition of Directive 2009/.../EC [amending Directive 2002/21/EC].) shall be subject to Article 9a.
7. Without prejudice to the provisions of the Specific Directives and taking into account the relevant national circumstances, Member States may lay down rules in order to prevent spectrum hoarding, in particular by setting out strict deadlines for the effective exploitation of the rights of use by the holder of the rights and by applying penalties, including financial penalties or the withdrawal of the rights of use in case of non-compliance with the deadlines. These rules shall be established and applied in a proportionate, non-discriminatory and transparent manner.

Article 9c

European Commission Amended Proposal European Parliament First Reading Council of European Union Common Position
Article 9c − Radio Frequency Management Harmonisation Measures Article 9c − Radio Frequency Management Harmonisation Measures Article 9c − Radio Frequency Management Harmonisation Measures
In order to contribute to the development of the internal market, for the achievement of the principles of Articles 8b, 9, 9a and 9b, the Commission may adopt appropriate measures to: In order to contribute to the development of the internal market, for the achievement of the principles of Articles 8b, 9, 9a and 9b, the Commission may adopt appropriate technical implement measures to: In order to contribute to the development of the internal market, for the achievement of the principles of Articles 8b, 9, 9a and 9b, the Commission may adopt appropriate measures to:
(-a) apply the radio spectrum policy programme established pursuant to Article 8b(4); (-a) apply the radio spectrum action programme established pursuant to Article 8b(4); (-a) apply the radio spectrum policy programme established pursuant to Article 8b(4);
(a) identify the bands for which usage rights may be transferred or leased between undertakings; (a) identify the bands for which usage rights may be transferred or leased between undertakings; (a) identify the bands for which usage rights may be transferred or leased between undertakings;
(b) harmonise the conditions attached to such rights; (b) harmonise the conditions attached to such rights; (b) harmonise the conditions attached to such rights;
(c) avoid the distortions of competition that may arise where individual rights are transferred; (c) avoid the distortions of competition that may arise where individual rights are transferred; (c) avoid the distortions of competition that may arise where individual rights are transferred;
(d) identify the bands to which the principle of service neutrality applies.
These measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 22(3). These measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 22(3). These measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 22(3).
(26) Given the effect of the exceptions on the development of the internal market for electronic communications services, the Commission should be able to harmonise the scope and nature of any exceptions to the principles of technology and service neutrality other than those aimed at ensuring the promotion of cultural and linguistic diversity and media pluralism, having regard to harmonised technical conditions for the availability and efficient use of radio frequencies under Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (“Radio Spectrum Decision”) (OJ L 108, 24.4.2002, p. 1.). (26) Given the effect of the exceptions on the development of the internal market for electronic communications services, the Commission should be able to harmonise the scope and nature of any exceptions to the principles of technology and service neutrality other than those aimed at ensuring the promotion of cultural and linguistic diversity and media pluralism, having regard to harmonised technical conditions for the availability and efficient use of radio frequencies under Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (“Radio Spectrum Decision”) (OJ L 108, 24.4.2002, p. 1.). (26) Given the effect of the exceptions on the development of the internal market for electronic communications services, the Commission should be able to harmonise the scope and nature of any exceptions to the principles of technology and service neutrality other than those aimed at ensuring the promotion of cultural and linguistic diversity and media pluralism, having regard to harmonised technical conditions for the availability and efficient use of radio frequencies under Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (“Radio Spectrum Decision”) (OJ L 108, 24.4.2002, p. 1.).