Telecoms Package Diff Framework Commission Initial Proposal Council Political Agreement

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

European Commission Initial Proposal -> Council of European Union Political Agreement − 2007-11-13 -> 2008-11-27

Article 8

European Commission Initial Proposal	Council of European Union Political Agreement
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.
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, 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.
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;
(b) ensuring that there is no distortion or restriction of competition in the electronic communications sector, in particular for the delivery of content;	(b) ensuring that there is no distortion or restriction of competition in the electronic communications sector;
(c) encouraging efficient investment in infrastructure, and promoting innovation; and	(c) encouraging efficient 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.
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;
(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;
(c) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;	(c) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;
(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 the 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:
(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;
(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;
(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;
	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:
	(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;
	(c) safeguarding competition to the benefit of consumers and promoting where appropriate infrastructure-based competition;
	(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 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 them as soon as there is.
(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.	(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.

Article 9

European Commission Initial Proposal	Council of European Union Political Agreement
Article 9 − Management of radio frequencies for electronic communications services	Article 9 − Management of radio frequencies for electronic communications services
1. 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 the allocation and assignment of such radio frequencies by national regulatory authorities are based on objective, transparent, non-discriminatory and proportionate criteria.	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 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 accordance with 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 the 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 radio network or wireless access technology may be used in the radio frequency bands open to electronic communications services.	3. Unless otherwise provided in the second subparagraph, Member States shall ensure that all types of radio network or wireless access 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 radio network or wireless access technology used 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,	(a) avoid harmful interference,
(b) protect public health against electromagnetic fields,	(b) protect public health against electromagnetic fields,
	(ba) ensure technical quality of service,
(c) ensure maximisation of radio frequencies sharing where the use of frequencies is subject to a general authorisation, or	(c) ensure maximisation of radio frequencies sharing,
	(ca) safeguard efficient use of spectrum, or
(d) comply with a restriction in accordance with paragraph 4 below.	(d) fulfil a general interest objective in accordance with paragraph 4 below.
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 open to electronic communications. 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 proportionate and non-discriminatory restrictions to the types of electronic communications services in accordance with their National Frequency Allocation Plan and 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.
Restrictions that require a service to be provided in a specific band shall be justified in order to ensure the fulfilment of a general interest objective 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, as defined in national legislation in conformity with Community law, the promotion of 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 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, 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 restriction which prohibits the provision of any other 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 measure in order to fulfil other general interest objectives.
5. Member States shall regularly review the necessity of the restrictions referred to in paragraphs 3 and 4.	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 allocation and assignment of radio frequencies after 31 December 2009.	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 [subject to the date of transposition].
	Spectrum allocations, general authorisations and individual rights of use which existed at the date of [subject to the date of transposition] 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 sanctions, including financial penalties or 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 Initial Proposal	Council of European Union Political Agreement
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 this Article, the Commission may adopt appropriate implementing measures to:	In order to contribute to the development of the internal market, for the achievement of the principles of this Article, the Commission may adopt appropriate implementing measures to:
(a) harmonise the identification of the bands for which usage rights may be transferred or leased between undertakings;	(a) harmonise the identification of the bands for which usage rights may be transferred or leased between undertakings;
(b) harmonise the conditions attached to such rights and the conditions, procedures, limits, restrictions, withdrawals and transitional rules applicable to such transfers or leases;	(b) harmonise the conditions attached to such rights and the conditions, procedures, limits, restrictions, withdrawals and transitional rules applicable to such transfers or leases;
(c) harmonise the specific measures to ensure fair competition where individual rights are transferred;	(c) harmonise the specific measures to ensure fair competition where individual rights are transferred;
(d) create an exception to the principle of services or technology neutrality, as well as to harmonise the scope and nature of any exceptions to these principles in accordance with Article 9(3) and (4) other than those aimed at ensuring the promotion of cultural and linguistic diversity and media pluralism.	(d) create an exception to the principle of services or technology neutrality, as well as to harmonise the scope and nature of any exceptions to these principles in accordance with Article 9(3) and (4) other than those aimed at ensuring the promotion of cultural and linguistic diversity and media pluralism.
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). On imperative grounds of urgency, the Commission may use the urgency procedure referred to in Article 22(4). In the implementation of the provisions of this paragraph, the Commission may be assisted by the Authority in accordance with Article 10 Regulation [.../EC].	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). On imperative grounds of urgency, the Commission may use the urgency procedure referred to in Article 22(4). In the implementation of the provisions of this paragraph, the Commission may be assisted by the Authority in accordance with Article 10 Regulation [.../EC].
(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.).