of 10 April 1997 on a common framework for
general authorizations and individual licences in the field of
telecommunications services
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN
UNION,
Having regard to the Treaty establishing the European Community,
and in particular Articles 57 (2), 66 and 100a thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee
(2),
Acting in accordance with the procedure laid down in Article 189b
of the Treaty (3),
(1) Whereas the Council resolution of 22 July 1993 on the review of
the situation in the telecommunications sector and the need for
further development in that market (4), together with the
resolution of 22 December 1994 on the principles and timetable for
the liberalization of telecommunications infrastructures (5), as
well as the European Parliament resolutions of 20 April 1993 (6), 7
April 1995 (7) and 19 May 1995 (8), have supported the process of
complete liberalization of telecommunications services and
infrastructures by 1 January 1998, with transition periods for
certain Member States;
(2) Whereas the Commission communication of 25 January 1995 on the
consultation on the Green Paper on the liberalization of
telecommunications infrastructure and cable television networks has
confirmed the need for rules at Community level, in order to ensure
that general authorization and individual licensing regimes are
based on the principle of proportionality and are open,
non-discriminatory and transparent; whereas the Council resolution
of 18 September 1995 on the implementation of the future regulatory
framework for telecommunications (9) recognizes as a key factor for
this regulatory framework in the Union the establishment, in
accordance with the principle of subsidiarity, of common principles
for general authorizations and individual licensing regimes in the
Member States, based on categories of balanced rights and
obligations; whereas those principles should cover all
authorizations which are required for the provision of any
telecommunications services and for the establishment and/or
operation of any infrastructure for the provision of
telecommunications services;
(3) Whereas a common framework should be established for general
authorizations and individual licences granted by Member States in
the field of telecommunications services; whereas under Community
law and in particular under Commission Directive 90/388/EEC of 28
June 1990 on competition in the markets for telecommunications
services (10), market entry should be restricted on the basis only
of objective, non-discriminatory, proportionate and transparent
selection criteria relating to the availability of scarce resources
or on the basis of the implementation by national regulatory
authorities of objective, non-discriminatory and transparent award
procedures; whereas Directive 90/388/EEC also sets out principles
regarding, inter alia, fees, numbers and rights of way; whereas
these rules should be supplemented and enlarged by this Directive
to determine this common framework;
(4) Whereas conditions attached to authorizations are necessary in
order to attain public interest objectives to the benefit of
telecommunications users; whereas under Articles 52 and 59 of the
Treaty, the regulatory regime in the field of telecommunications
should be compatible and consistent with the principles of freedom
of establishment and freedom to provide services and should take
into account the need to facilitate the introduction of new
services as well as the widespread application of technological
improvements; whereas, therefore, general authorization and
individual licensing systems should provide for the lightest
possible regulation compatible with the fulfilment of applicable
requirements; whereas Member States should not be required to
introduce or maintain authorization schemes, in particular where
the provision of telecommunications services or the establishment
and/or operation of telecommunications networks is not subject to
an authorization scheme at the date of entry into force of this
Directive;
(5) Whereas this Directive therefore will make a significant
contribution to the entry of new operators into the market, as part
of the development of the Information Society;
(6) Whereas Member States may define and grant different categories
of authorization; whereas this should not prevent undertakings from
determining the type of telecommunications services or networks
which they wish to provide, subject to compliance with relevant
regulatory obligations;
(7) Whereas in order to facilitate the Community-wide provision of
telecommunications services, priority should be given to market
access schemes not requiring authorizations or relying on general
authorizations, to be supplemented where necessary by rights and
obligations requiring individual licences for those elements which
cannot be suitably dealt with by general authorizations;
(8) Whereas general authorizations permit the provision of a
service and the establishment and/or operation of a network without
requiring an explicit decision by the national regulatory
authority; whereas such general authorizations may take the form of
either a set of specific conditions defined in advance in a general
manner, such as a class licence, or a general legislation which may
allow the provision of the service and the establishment and/or
operation of the network concerned;
(9) Whereas Member States may attach conditions to authorizations
in order to ensure compliance with essential requirements; whereas
Member States may, in addition, attach other conditions in
accordance with the Annex to this Directive;
(10) Whereas any conditions attached to authorizations should be
objectively justified in relation to the service concerned and
should be non-discriminatory, proportionate and transparent;
whereas authorizations may be the means for applying conditions
required by Community law, in particular in the area of open
network provision;
(11) Whereas the harmonization of the procedures associated with
the granting of authorizations and the conditions attached to such
authorizations should significantly facilitate the free provision
of telecommunications services in the Community;
(12) Whereas any fees or charges imposed on undertakings as part of
authorization procedures must be based on objective,
non-discriminatory and transparent criteria;
(13) Whereas the introduction of individual licensing systems
should be restricted to limited, pre-defined situations; whereas
Member States may limit the number of individual licences for any
category of telecommunications services only to the extent required
to ensure the efficient use of radio frequencies or for the time
necessary to make available sufficient numbers in accordance with
Community law;
(14) Whereas Member States should be allowed to impose specific
conditions on undertakings providing public telecommunications
networks and telecommunications services by virtue of their market
power; whereas the market power of an undertaking is defined by the
provisions of the Directive of the European Parliament and of the
Council on interconnection in telecommunications with regard to
ensuring universal service and interoperability through application
of the principles of open network provision (ONP) (hereinafter
referred to as the 'Interconnection Directive`);
(15) Whereas telecommunications services have a role to play in
strengthening social and economic cohesion, inter alia by
furthering the achievement of universal service, in particular in
remote, peripheral, landlocked and rural areas and islands; whereas
Member States should therefore be allowed to impose universal
service obligations by means of individual licences which require
the licensee to provide universal service; whereas obligations to
contribute to the financing of universal service are not by
themselves a justification for imposing individual licences;
(16) Whereas in order to facilitate the granting of individual
licences to undertakings applying for such licences in more than
one Member State and in order to facilitate notification procedures
in the case of general authorizations, a 'one-stop-shopping
procedure` should be established;
(17) Whereas national regulatory authorities should, where
possible, endeavour under the one-stop-shopping procedure to
shorten the time limits for taking a decision on the grand of
individual licences for certain categories of services in response
to commercial needs;
(18) Whereas the 'one-stop-shopping procedure` should be
implemented without prejudice to national provisions relating to
the language used in the relevant procedures;
(19) Whereas a degree of harmonization of the procedures is already
provided for in this Directive; whereas further harmonization may
be desirable in order to achieve a more integrated
telecommunications market; whereas this possibility should be
assessed in the report to be drawn up by the Commission;
(20) Whereas any authorization systems should take account of the
establishment of trans-European telecommunications networks as
envisaged in Title XII of the Treaty; whereas to this end Member
States should ensure that their national regulatory authorities
shall coordinate where possible their authorization procedures at
the request of an undertaking intending to provide a
telecommunications service or to establish and/or operate a
telecommunications network in more than one Member State;
(21) Whereas Community undertakings should have effective and
comparable access to third countries' markets and enjoy treatment
in third countries similar to that offered in the Community to
undertakings owned wholly, controlled through majority ownership or
effectively controlled by nationals of the third countries
concerned;
(22) Whereas a committee should be established to assist the
Commission;
(23) Whereas, on the one hand, it is necessary, due to the
particular commercial sensitivity of information which may be
obtained by national regulatory authorities in the course of
issuing, managing, controlling and enforcing licences, to establish
common principles applicable to these national regulatory
authorities in the field of confidentiality; whereas, on the other
hand, in this field the members of the institutions of the
Community, the members of committees, and the officials and other
servants of the Community are required by Community law and in
particular by Article 214 of the Treaty not to disclose information
of the kind covered by the obligation of professional secrecy, in
particular information about undertakings, their business relations
or their cost components;
(24) Whereas the functioning of this Directive should be reviewed
in due course, in the light of the development of the
telecommunications sector and of trans-European networks, as well
as in the light of experience gained from the harmonization and
one-stop-shopping procedures set out in this Directive;
(25) Whereas on the basis of the full implementation of a
competitive framework, in order to achieve the essential goal of
ensuring the development of the internal market in the field of
telecommunications and specifically the free provision of
telecommunications services and networks throughout the Community,
the adoption of this Directive will substantially contribute to the
attainment of this goal; whereas Member States should implement
this common framework, in particular through their national
regulatory authorities;
(26) Whereas this Directive applies to both existing and future
authorizations; whereas certain licences have been granted for
periods which go beyond 1 January 1999; whereas clauses in such
authorizations contrary to Community law, in particular those
conferring on the licensees special or exclusive rights, are,
according to the case-law of the Court of Justice, inoperative from
the date indicated in the relevant Community measures; whereas
regarding other rights which do not affect the interests of other
undertakings under Community law, Member States could extend their
validity in order to avoid claims for compensation;
(27) Whereas in principle obligations in authorizations existing at
the date of entry into force of this Directive which have not been
brought into line with the provisions of this Directive by 1
January 1999 should be inoperative; whereas on request Member
States may be granted a deferment of that date by the
Commission,
HAVE ADOPTED THIS DIRECTIVE:
SECTION I
SCOPE, DEFINITIONS AND PRINCIPLES
Article 1
Scope
1. This Directive concerns the procedures associated with the
granting of authorizations and the conditions attached to such
authorizations, for the purpose of providing telecommunications
services, including authorizations for the establishment and/or
operation of telecommunications networks required for the provision
of such services.
2. This Directive is without prejudice to the specific rules
adopted by the Member States in accordance with Community law,
governing the distribution of audiovisual programmes intended for
the general public, and the content of such programmes. It is also
without prejudice to measures taken by Member States concerning
defence and to measures taken by Member States in accordance with
public interest requirements recognized by the Treaty, in
particular Articles 36 and 56, especially in relation to public
morality, public security, including the investigation of criminal
activity, and public policy.
Article 2
Definitions
1. For the purposes of this Directive,
(a) 'authorizations` means any permission setting out rights and
obligations specific to the telecommunications sector and allowing
undertakings to provide telecommunications services and, where
applicable, to establish and/or operate telecommunications networks
for the provision of such services, in the form of a 'general
authorization` or 'individual licence`, as defined below:
- 'general authorization` means an authorization, regardless of
whether it is regulated by a 'class licence` or under general law
and whether such regulation requires registration, which does not
require the undertaking concerned to obtain an explicit decision by
the national regulatory authority before exercising the rights
stemming from the authorization,
- 'individual licence` means an authorization which is granted by a
national regulatory authority and which gives an undertaking
specific rights or which subjects that undertaking's operations to
specific obligations supplementing the general authorization where
applicable, where the undertaking is not entitled to exercise the
rights concerned until it has received the decision by the national
regulatory authority;
(b) 'national regulatory authority` means the body or bodies,
legally distinct and functionally independent of the
telecommunications organizations, charged by a Member State with
the elaboration of, and supervision of compliance with,
authorizations;
(c) 'one-stop-shopping procedure` means a procedural arrangement
facilitating the obtaining of individual licences from, or, in the
case of general authorizations and if required, the notification to
more than one national regulatory authority, in a coordinated
procedure and at a single location;
(d) 'essential requirements` means the non-economic reasons in the
public interest which may cause a Member State to impose conditions
on the establishment and/or operation of telecommunications
networks or the provision of telecommunications services. Those
reasons shall be the security on network operations, the
maintenance of network integrity and, where justified, the
interoperability of services, data protection, the protection of
the environment and town and country planning objectives, as well
as the effective use of the frequency spectrum and the avoidance of
harmful interference between radio-based telecommunications systems
and other space-based or terrestrial technical systems. Data
protection may include the protection of personal data, the
confidentiality of information transmitted or stored, and the
protection of privacy.
2. Other definitions given in 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 (11) and the Interconnection Directive shall
apply, where relevant, to this Directive.
Article 3
Principles governing authorizations
1. Where Member States make the provision of a telecommunications
service subject to an authorization, the grant of such
authorization and the conditions to be attached thereto shall
comply with the principles set out in paragraphs 2, 3 and 4.
2. Authorizations may contain only the conditions listed in the
Annex. Moreover, such conditions shall be objectively justified in
relation to the service concerned, non-discriminatory,
proportionate and transparent.
3. Member States shall ensure that telecommunications services
and/or telecommunications networks can be provided either without
authorization or on the basis of general authorizations, to be
supplemented where necessary by rights and obligations requiring an
individual assessment of applications and giving rise to one or
more individual licences. Member States may issue an individual
licence only where the beneficiary is given access to scarce
physical and other resources or is subject to particular
obligations or enjoys particular rights, in accordance with the
provisions of Section III.
4. Member States shall, in the formulation and application of their
authorization systems, facilitate the provision of
telecommunications services between Member States.
SECTION II
GENERAL AUTHORIZATIONS
Article 4
Conditions attached to general authorizations
1. Where Member States subject the provision of telecommunications
services to general authorizations, the conditions which, where
justified, may be attached to such authorizations are set out in
points 2 and 3 of the Annex. Such authorizations shall entail the
least onerous system possible consistent with enforcing the
relevant essential requirements and relevant other public interest
requirements set out in points 2 and 3 of the Annex.
2. Member States shall ensure that the conditions attached to
general authorizations are published in an appropriate manner so as
to provide easy access to that information for interested parties.
Reference to the publication of this information shall be made in
the national official gazette of the Member State concerned and in
the Official Journal of the European Communities.
3. Member States may amend the conditions attached to a general
authorization in objectively justified cases and in a proportionate
manner. When doing so, Member States shall give appropriate notice
of their intention to do so and enable interested parties to
express their views on the proposed amendments.
Article 5
Procedures for general authorizations
1. Without prejudice to the provisions of Section III, Member
States shall not prevent an undertaking which complies with the
applicable conditions attached to a general authorization in
accordance with Article 4 from providing the intended
telecommunications service and/or telecommunications networks.
2. Member States may require that, before providing the
telecommunications service and/or telecommunications networks, the
undertaking enjoying the general authorization shall notify the
national regulatory authority of its intention to do so, and shall
communicate the information relating to the service concerned which
is necessary for the purpose of ensuring compliance with the
applicable conditions attached in accordance with Article 4. The
undertaking may be required to wait for up to four weeks after
formal receipt of all the information required as published in
accordance with paragraph 4, before starting to provide the
services covered by the general authorization.
3. Where the undertaking enjoying a general authorization does not
comply with a condition attached to a general authorization in
accordance with Article 4, the national regulatory authority may
inform the undertaking concerned that it is not entitled to avail
itself of the general authorization and/or impose on that
undertaking, in a proportionate manner, specific measures aimed at
ensuring compliance. The national regulatory authority shall, at
the same time, give the undertaking concerned a reasonable
opportunity to state its views on the application of the conditions
and to remedy any breaches within one month starting from the
intervention of the national regulatory authority. If the
undertaking concerned remedies the breaches, the national
regulatory authority shall, within two months of its initial
intervention, annul or modify its decision as appropriate and state
the reasons for its decision. If the undertaking concerned does not
remedy the breaches, the national regulatory authority shall,
within two months of its initial intervention, confirm its decision
and state the reasons for its decision. The decision shall be
communicated within one week of its adoption to the undertaking
concerned. Member States shall lay down a procedure for appealing
against such a decision to an institution independent of the
national regulatory authority.
4. Member States shall ensure that information concerning the
procedures relating to general authorizations is published in an
appropriate manner, so as to provide easy access to that
information. Reference to the publication of this information shall
be made in the national official gazette of the Member State
concerned and in the Official Journal of the European
Communities.
Article 6
Fees and charges for general authorizations procedures
Without prejudice to financial contributions to the provision of
universal service in accordance with the Annex, Member States shall
ensure that any fees imposed on undertakings as part of the
authorization procedures seek only to cover the administrative
costs incurred in the issue, management, control and enforcement of
the applicable general authorization scheme. Such fees shall be
published in an appropriate and sufficiently detailed manner, so as
to be readily accessible.
SECTION III
INDIVIDUAL LICENCES
Article 7
Scope
1. Member States may issue individual licences for the following
purposes only:
(a) to allow the licensee access to radio frequencies or
numbers;
(b) to give the licensee particular rights with regard to access to
public or private land;
(c) to impose obligations and requirements on the licensee relating
to the mandatory provision of publicly available telecommunications
services and/or public telecommunications networks, including
obligations which require the licensee to provide universal service
and other obligations under ONP legislation;
(d) to impose specific obligations, in accordance with Community
competition rules, where the licensee has significant market power,
as defined in Article 4 (3) of the Interconnection Directive in
relation to the provision of public telecommunications networks and
publicly available telecommunications services.
2. Notwithstanding paragraph 1, the provision of publicly available
voice telephony services, the establishment and provision of public
telecommunications networks as well as other networks involving the
use of radio frequencies may be subject to individual licences.
Article 8
Conditions attached to individual licences
1. The conditions which, in addition to those set out for general
authorizations, may, where justified, be attached to individual
licences are set out in points 2 and 4 of the Annex.
Such conditions shall relate only to the situations justifying the
grant of such a licence, as defined in Article 7.
2. Member States may incorporate the terms of the applicable
general authorizations in the individual licence by attaching to
the individual licence conditions set out in the Annex.
The rights given under and the conditions attached to any general
authorizations must not be restricted or complemented by the
granting of an individual licence, except in objectively justified
cases and in a proportionate manner, in particular to reflect
obligations relating to the provision of universal service and/or
the control of significant market power, or obligations
corresponding to offers in the course of a comparative bidding
process.
3. Without prejudice to Article 20, Member States shall ensure that
information concerning the conditions which will be attached to any
individual licence is published in an appropriate manner, so as to
provide easy access to that information. Reference to the
publication of this information shall be made in the national
official gazette of the Member State concerned and in the Official
Journal of the European Communities.
4. Member States may amend the conditions attached to an individual
licence in objectively justified cases and in a proportionate
manner. When doing so, Member States shall give appropriate notice
of their intention to do so and enable interested parties to
express their views on the proposed amendments.
Article 9
Procedures for the granting of individual licences
1. Where a Member State grants individual licences, it shall ensure
that information concerning the procedures for individual licences
is published in an appropriate manner, so as to be readily
accessible.
Reference to the publication of this information shall be made in
the national official gazette of the Member State concerned and in
the Official Journal of the European Communities.
2. Where a Member State intends to grant individual licences:
- it shall grant individual licences through open,
non-discriminatory and transparent procedures and, to this end,
shall subject all applicants to the same procedures, unless there
is an objective reason for differentiation, and
- it shall set reasonable time limits; inter alia, it shall inform
the applicant of its decision as soon as possible but not more than
six weeks after receiving the application. In the provisions
adopted to implement this Directive, Member States may extend this
time limit to up to four months in objectively justified cases
which have been defined specifically in those provisions. In the
case of comparative bidding procedures in particular, Member States
may further extend this time limit by up to four months. These time
limits shall be without prejudice to any applicable international
agreements relating to international frequency and satellite
coordination.
3. Without prejudice to Article 10 (1), any undertaking which
fulfils the conditions decided and published by Member States in
accordance with the relevant provisions of this Directive shall be
entitled to receive an individual licence. However, where an
undertaking applying for an individual licence does not provide the
information which is reasonably required in order to demonstrate
that it fulfils the conditions imposed in accordance with the
relevant provisions of this Directive, the national regulatory
authority may refuse to grant the individual licence.
4. Where the beneficiary of an individual licence does not comply
with a condition attached to the licence in accordance with the
relevant provisions of this Directive, the national regulatory
authority may withdraw, amend or suspend the individual licence or
impose, in a proportionate manner, specific measures aimed at
ensuring compliance. The national regulatory authority shall, at
the same time, give the undertaking concerned a reasonable
opportunity to state its view on the application of the conditions
and, except in the case of repeated breaches by the said
undertaking, where the national regulatory authority can
immediately take the appropriate measures, to remedy any breaches,
within one month starting from the intervention of the national
regulatory authority. If the undertaking concerned remedies the
breaches, the national regulatory authority shall, within two
months of its initial intervention, annul or modify its decision as
appropriate and state the reasons for its decision. If the
undertaking concerned does not remedy the breaches, the national
regulatory authority shall, within two months of its initial
intervention, confirm its decision and state the reasons for its
decision. The decision shall be communicated within one week of its
adoption to the undertaking concerned. Member States shall lay down
a procedure for appealing against such a decision to an institution
independent of the national regulatory authority.
5. In the event of harmful interference between a
telecommunications network using radio frequencies and other
technical systems the national regulatory authority may take
immediate action to remedy that problem. In such a case the
undertaking concerned shall thereafter be given a reasonable
opportunity to state its view and to propose any remedies to the
harmful interference.
6. Member States refusing to grant or withdrawing, amending or
suspending an individual licence shall inform the undertaking
concerned of the reasons therefor. Member States shall lay down an
appropriate procedure for appealing against such refusals,
withdrawals, amendments or suspensions to an institution
independent of the national regulatory authority.
Article 10
Limitation on the number of individual licences
1. Member States may limit the number of individual licences for
any category of telecommunications services and for the
establishment and/or operation of telecommunications
infrastructure, only to the extent required to ensure the efficient
use of radio frequencies or for the time necessary to make
available sufficient numbers in accordance with Community law.
2. Where a Member State intends to limit the number of individual
licences granted in accordance with paragraph 1, it shall:
- give due weight to the need to maximize benefits for users and to
facilitate the development of competition,
- enable all interested parties to express their views on any
limitation,
- publish its decision to limit the number of individual licences,
stating the reasons therefor,
- review the limitation at reasonable intervals,
- invite applications for licences.
3. Member States shall grant such individual licences on the basis
of selection criteria which must be objective, non-discriminatoriy,
detailed, transparent and proportionate. Any such selection must
give due weight to the need to facilitate the development of
competition and to maximize benefits for users.
Member States shall ensure that information on such criteria is
published in advance in an appropriate manner, so as to be readily
accessible. Reference to the publication of this information shall
be made in the national official gazette of the Member State
concerned.
4. Where, on its own initiative or following a request by an
undertaking, a Member State finds, either at the time of entry into
force of this Directive or thereafter, that the number of
individual licences can be increased, it shall publish this fact
and invite applications for additional licences.
Article 11
Fees and charges for individual licences
1. Member States shall ensure that any fees imposed on undertakings
as part of authorization procedures seek only to cover the
administrative costs incurred in the issue, management, control and
enforcement of the applicable individual licences. The fees for an
individual licence shall be proportionate to the work involved and
be published in an appropriate and sufficiently detailed manner, so
as to be readily accessible.
2. Notwithstanding paragraph 1, Member States may, where scarce
resources are to be used, allow their national regulatory
authorities to impose charges which reflect the need to ensure the
optimal use of these resources. Those charges shall be
non-discriminatory and take into particular account the need to
foster the development of innovative services and competition.
SECTION IV
PROVISION OF TELECOMMUNICATIONS SERVICES THROUGHOUT THE
COMMUNITY
Article 12
Harmonization
1. Wherever necessary, the conditions attached to general
authorizations and the procedures for general authorization shall
be harmonized.
The harmonization of these conditions and procedures shall aim to
develop the least onerous system possible consistent with ensuring
compliance with the provisions of this Directive, in particular
Articles 3, 4 and 5 thereof and with the relevant essential
requirements and other public interest requirements set out in
points 1, 2 and 3 of the Annex.
Harmonization shall furthermore aim to establish balanced sets of
rights and obligations for the undertakings enjoying
authorizations.
2. The Commission shall, in accordance with the procedure laid down
in Article 16, give mandates to the European Conference of Postal
and Telecommunications Administrations (CEPT)/the European
Committee for Telecommunications Regulatory Affairs (Ectra),
CEPT/European Radiocommunications Committee (ERC) or other relevant
harmonization bodies. These mandates shall define the tasks to be
performed and the categories of general authorizations to be
harmonized and shall lay down a timetable for the preparation of
harmonized conditions and procedures.
3. In the light of the work performed on the basis of paragraph 2
and without prejudice to Article 7, a decision stating that a
harmonized general authorization is applicable shall be adopted in
accordance with the procedure laid down in Article 17.
Article 13
One-stop-shopping procedure
1. Where appropriate and in conjunction with CEPT/Ectra and
CEPT/ERC, the Commission shall take the steps necessary for the
operation of a one-stop-shopping procedure for the grant of
individual licences and, in the case of general authorizations, for
notification procedures, including suitable arrangements for its
administration, in accordance with the procedure laid down in
Article 17. Information on that one-stop-shopping procedure shall
be published in the Official Journal of the European
Communities.
2. The one-stop-shopping procedure shall comply with the following
conditions:
(a) it shall be open to all undertakings wishing to provide
telecommunications services in the Community;
(b) the submission of applications and notifications shall be
possible and one or more bodies to which the applications and the
notifications may be submitted shall be designated;
(c) in the case of individual licences, applications shall be
passed to the national regulatory authorities concerned, within
seven working days of formal receipt, by the bodies to which they
were submitted.
In the case of general authorizations, notifications shall be
passed to the national regulatory authorities concerned, within two
working days of formal receipt, by the bodies to which they were
submitted;
(d) in the case of individual licences, the national regulatory
authorities concerned shall decide on the grant of such a licence
within the time limits referred to in Article 9 (2); they shall
inform both the applicant and the bodies to which the relevant
application was submitted of that decision within one week of
taking their decision.
In the case of general authorizations, the national regulatory
authorities concerned shall comply with the time limit referred to
in Article 5 (2);
(e) Article 9 and Article 5 shall apply respectively to
applications for individual licences and to notifications made by
means of the one-stop-shopping procedure;
(f) the bodies to which the applications and notifications may be
submitted shall report annually to the Commission on the operation
of the one-stop-shopping procedure, including information on
refusals of applications and objections raised to
notifications;
(g) the bodies involved in the one-stop-shopping procedure shall
undertake to observe the level of confidentiality prescribed in
Article 20.
SECTION V
LICENSING COMMITTEE
Article 14
Establishment of the Licensing Committee
The Commission shall be assisted by a committee composed of the
representatives of the Member States and chaired by the
representative of the Commission. The Committee shall be called the
Licensing Committee (hereinafter referred to as 'the
Committee`).
Article 15
Exchange of information
The Commission shall, where necessary, inform the Committee on the
outcome of regular consultations with the representatives of
telecommunications organizations, users, consumers, manufacturers,
service providers and trade unions.
In addition, the Committee shall, taking account of the Community's
telecommunications policy, foster the exchange of information
between the Member States and between the Member States and the
Commission on the situation and the development of regulatory
activities regarding the authorization of telecommunications
services.
Article 16
Committee procedure No I (12*)
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 17
Committee Procedure No II (b) (13*)
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. The opinion shall
be delivered by the majority laid down in Article 148 (2) of the
Treaty in the case of decisions which the Council is required to
adopt on a proposal from the Commission. The votes of the
representatives of the Member States Within the committee shall be
weighted in the manner set out in that Article. The chairman shall
not vote.
The Commission shall adopt the measures which shall apply
immediately. However, if these measures are not in accordance with
the opinion of the committee, they shall be communicated by the
Commission to the Council forthwith. In that event:
- the Commission shall defer application of the measures on which
it has decided for a period of three months from the date of
communication,
- the Council, acting by qualified majority, may take a different
decision within the time limit referred to in the first indent.
SECTION VI
GENERAL AND FINAL PROVISIONS
Article 18
Third countries
1. Member States may inform the Commission of any general
difficulties encountered, de jure or de facto, by Community
organizations in obtaining authorizations and in operating under
authorizations in third countries, which have been brought to their
attention.
2. Whenever the Commission is informed of such difficulties, it
may, if necessary, submit proposals to the Council for an
appropriate mandate for negotiation of comparable rights for
Community organizations in these third countries. The Council shall
decide by qualified majority.
3. Measures taken pursuant to paragraph 2 shall be without
prejudice to the obligations of the Community and of the Member
States under relevant international agreements.
Article 19
New services
Without prejudice to Sections II and III, where the provision of a
telecommunications service is not yet covered by a general
authorization and where such a service and/or network cannot be
provided without authorization, Member States shall, not later than
six weeks after they have received an application, adopt
provisional conditions allowing the undertaking to start providing
the service or reject the application and inform the undertaking
concerned of the reasons therefor. As soon as possible thereafter,
Member States shall adopt definitive conditions or consent to the
provision of the service concerned without authorization or provide
reasons for any refusal to do so. Member States shall lay down an
appropriate procedure for appealing to an institution independent
of the national regulatory authority against refusals to adopt
provisional or definitive conditions, rejections of applications or
refusals to consent to the provision of the service concerned
without authorization.
Article 20
Confidentiality
1. National regulatory authorities shall not disclose information
covered by the obligation of professional secrecy, in particular
information about undertakings, their business relations or their
cost components.
2. Paragraph 1 shall be without prejudice to the right of national
regulatory authorities to undertake disclosure where it is
essential for the purposes of fulfilling their duties, in which
case such disclosure shall be proportionate and shall have regard
to the legitimate interests of undertakings in the protection of
their business secrets.
3. Paragraph 1 shall not preclude publication of information on
licensing conditions which does not include information of a
confidential nature.
Article 21
Notification
1. In addition to the information already required under Directive
90/388/EEC, Member States shall supply the Commission with the
following information:
- the names and addresses of the national authorities and bodies
competent to issue national authorizations,
- information on national authorization regimes.
2. Member States shall notify any changes in respect of the
information supplied under paragraph 1, within one month of their
entry into force.
Article 22
Authorizations existing at the date of entry into force of this
Directive
1. Member States shall make all necessary efforts to bring
authorizations in force at the date of entry of this Directive into
line with its provisions before 1 January 1999.
2. Where application of the provisions of this Directive results in
amendments to the terms of authorizations already in existence,
Member States may extend the validity of terms, other than those
giving special or exclusive rights which have been or are to be
terminated under Community law, provided that this can be done
without affecting the rights of other undertakings under Community
law, including this Directive. In such cases, Member States shall
notify the Commission of the action taken to that end and shall
state the reasons therefor.
3. Without prejudice to the provisions of paragraph 2, obligations
in authorizations existing at the date of entry into force of this
Directive which have not been brought into line by 1 January 1999
with the provisions of this Directive shall be inoperative.
Where justified, Member States may, upon request, be granted a
deferment of that date by the Commission.
Article 23
Review procedures
Before 1 January 2000, the Commission shall prepare a report to be
submitted to the European Parliament and Council and to be
accompanied, where appropriate, by new legislative proposals. The
report shall include an assessment, on the basis of the experience
gained, of the need for further development of the regulatory
structures as regards authorizations, in particular in relation to
the harmonization of the procedures and the scope of individual
licences, to other aspects of harmonization and to trans-European
services and networks. The report shall also include proposals with
a view to consolidating the various committees existing in
Community telecommunications legislation. Any amendments necessary
to adapt the content of the Annex to new technological developments
and appropriate practical procedures, together with Article 7 (2),
shall also be considered in this report.
Article 24
Deferment
Deferment of the obligations under Articles 3 (3), 7, 9, 10 (1),
12, 13, 22 shall be granted to those Member States identified in
the Council's resolutions of 22 July 1993 and 22 December 1994
which benefit from an additional transition period for the
liberalization of telecommunications services for as long as and to
the extent that they avail themselves of such transition periods.
Member States shall inform the Commission of their intention to use
them.
Article 25
Implementation
Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive
and publish the conditions and procedures attached to
authorizations as soon as possible and, in any event, not later
than 31 December 1997. They shall immediately 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 a reference shall be laid down by the Member
States.
Article 26
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 27
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 10 April 1997.
For the European Parliament
The President
J. M. GIL-ROBLES
For the Council
The President
A. VAN DOK VAN WEELE
(1) OJ No C 90, 27. 3. 1996, p. 5 and
OJ No C 291, 4. 10. 1996, p. 12.
(2) OJ No C 204, 15. 7. 1996, p. 17.
(3) Opinion of the European Parliament of 22 May 1996 (OJ No C 166,
10. 6. 1996, p. 78), Council common position of 9 December 1996 (OJ
No C 41, 10. 2. 1997, p. 48) and Decision of the European
Parliament of 20 February 1997 (OJ No C 88, 17. 3. 1997). Council
Decision of 6 March 1997.
(4) OJ No C 213, 6. 8. 1993, p. 1.
(5) OJ No C 379, 31. 12. 1994, p. 4.
(6) OJ No C 150, 31. 5. 1993, p. 39.
(7) OJ No C 109, 1. 5. 1995, p. 310.
(8) OJ No C 151, 19. 6. 1995, p. 479.
(9) OJ No C 258, 3. 10. 1995, p. 1.
(10) OJ No L 192, 24. 7. 1990, p. 10, as last amended by Directive
96/19/EC (OJ No L 74, 22. 3. 1996, p. 13).
(11) OJ No L 192, 24. 7. 1990, p. 1.
(12*) Procedures set out in Council Decision 87/373/EEC of 13 July
1987 laying down the procedures for the exercise of implementing
powers conferred on the Commission (OJ No L 197, 18. 7. 1987, p.
33).
ANNEX
CONDITIONS WHICH MAY BE ATTACHED TO AUTHORIZATIONS
1. Any conditions which are attached to authorizations must be
consistent with the competition rules of the Treaty.
2. Conditions which may be attached to all authorizations, where
justified and subject to the principle of proportionality:
2.1. conditions intended to ensure compliance with relevant
essential requirements;
2.2. conditions linked to the provision of information reasonably
required for the verification of compliance with applicable
conditions and for statistical purposes;
2.3. conditions intended to prevent anti-competitive behaviour in
telecommunications markets, including measures to ensure that
tariffs are non-discriminatory and do not distort competition;
2.4. conditions relating to the effective and efficient use of the
numbering capacity.
3. Specific conditions which may be attached to general
authorizations for the provision of publicly available
telecommunications services and of public telecommunications
networks that are required for the provision of such services,
where justified and subject to the principle of
proportionality:
3.1. conditions relating to the protection of users and subscribers
in relation particularly to:
- the prior approval by the national regulatory authority of the
standard subscriber contract,
- the provision of detailed and accurate billing,
- the provision of a procedure for the settlement of disputes,
- publication and adequate notice of any change in access
conditions, including tariffs, quality and the availability of
services;
3.2. financial contributions to the provision of universal service,
in accordance with Community law;
3.3. communication of customer database information necessary for
the provision of universal directory information;
3.4. provision of emergency services;
3.5. special arrangements for disabled people;
3.6. conditions relating to the interconnection of networks and the
interoperability of services, in accordance with the
Interconnection Directive and obligations under Community law.
4. Specific conditions which may be attached to individual
licenses, where justified and subject to the principle of
proportionality:
4.1. specific conditions linked to the allocation of numbering
rights (compliance with national numbering schemes);
4.2. specific conditions linked to the effective use and efficient
management of radio frequencies;
4.3. specific environmental and specific town and country planning
requirements, including conditions linked to the granting of access
to public or private land and conditions linked to collocation and
facility sharing;
4.4. maximum duration, which shall not be unreasonably short, in
particular in order to ensure the efficient use of radio
frequencies or numbers or to grant access to public or private
land, without prejudice to other provisions concerning the
withdrawal or the suspension of licences;
4.5. provision of universal service obligations in accordance with
the Interconnection Directive and Directive 95/62/EC of the
European Parliament and of the Council of 13 December 1995 on the
application of open network provision (ONP) to voice telephony
(1);
4.6. conditions applied to operators having significant market
power, as notified by Member States under the Interconnection
Directive, intended to guarantee interconnection or the control of
significant market power;
4.7. conditions concerning ownership which comply with Community
law and the Community's commitments vis-а-vis third countries;
4.8. requirements relating to the quality, availability and
permanence of a service or network, including the financial,
managerial and technical competence of the applicant and conditions
setting a minimum period of operation and including, where
appropriate and in accordance with Community law, the mandatory
provision of publicly available telecommunications services and
public telecommunications networks;
4.9. specific conditions relating to the provision of leased lines
in accordance with Council Directive 92/44/EEC of 5 June 1992 on
the application of open network provision to leased lines (2).
This list of conditions shall be without prejudice to:
- any other legal conditions which are not specific to the
telecommunications sector,
- measures taken by Member States in accordance with public
interest requirements recognized by the Treaty, in particular
Articles 36 and 56, specifically in relation to public morality,
public security, including the investigation of criminal
activities, and public policy.
(1) OJ No L 321, 30. 12. 1995, p. 6.
(2) OJ No L 165, 19. 6. 1992, p. 27. Directive as amended by
Commission Decision 94/439/EC (OJ No L 181, 15. 7. 1994, p.
40).