Legal provisions of COM(2013)147 - Measures to reduce the cost of deploying high-speed electronic communications networks

Please note

This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2013)147 - Measures to reduce the cost of deploying high-speed electronic communications networks.
document COM(2013)147 EN
date May 15, 2014

Contents

Article 1 - Subject matter and scope

1. This Directive aims to facilitate and incentivise the roll-out of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure and by enabling a more efficient deployment of new physical infrastructure so that such networks can be rolled out at lower cost.

2. This Directive establishes minimum requirements relating to civil works and physical infrastructure, with a view to approximating certain aspects of the laws, regulations and administrative provisions of the Member States in those areas.

3. Member States may maintain or introduce measures in conformity with Union law which go beyond the minimum requirements established by this Directive with a view to better achieving the aim referred to in paragraph 1.

4. If any provision of this Directive conflicts with a provision of Directive 2002/21/EC, Directive 2002/19/EC, Directive 2002/20/EC, Directive 2002/22/EC or Directive 2002/77/EC, the relevant provision of those Directives shall prevail.

Article 2 - Definitions

For the purposes of this Directive, the definitions set out in Directive 2002/21/EC apply.

The following definitions also apply:

(1)‘network operator’ means an undertaking providing or authorised to provide public communications networks as well as an undertaking providing a physical infrastructure intended to provide:

(a)a service of production, transport or distribution of:

(i)gas;

(ii)electricity, including public lighting;

(iii)heating;

(iv)water, including disposal or treatment of waste water and sewage, and drainage systems;

(b)transport services, including railways, roads, ports and airports;

(2)‘physical infrastructure’ means any element of a network which is intended to host other elements of a network without becoming itself an active element of the network, such as pipes, masts, ducts, inspection chambers, manholes, cabinets, buildings or entries to buildings, antenna installations, towers and poles; cables, including dark fibre, as well as elements of networks used for the provision of water intended for human consumption, as defined in point 1 of Article 2 of Council Directive 98/83/EC (13) are not physical infrastructure within the meaning of this Directive;

(3)‘high-speed electronic communications network’ means an electronic communication network which is capable of delivering broadband access services at speeds of at least 30 Mbps;

(4)‘civil works’ means every outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function and entails one or more elements of a physical infrastructure;

(5)‘public sector body’ means a state, regional or local authority, a body governed by public law or an association formed by one or several such authorities or one or several such bodies governed by public law;

(6)‘bodies governed by public law’ means bodies that have all of the following characteristics:

(a)they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

(b)they have legal personality; and

(c)they are financed, in full or for the most part, by the State, or regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law;

(7)‘in-building physical infrastructure’ means physical infrastructure or installations at the end-user's location, including elements under joint ownership, intended to host wired and/or wireless access networks, where such access networks are capable of delivering electronic communications services and connecting the building access point with the network termination point;

(8)‘high-speed-ready in-building physical infrastructure’ means in-building physical infrastructure intended to host elements or enable delivery of high-speed electronic communications networks;

(9)‘major renovation works’ means building or civil engineering works at the end user's location encompassing structural modifications of the entire in-building physical infrastructure or a significant part thereof, and requiring a building permit;

(10)‘permit’ means an explicit or implicit decision of a competent authority following any procedure under which an undertaking is required to take steps in order to legally carry out building or civil engineering works;

(11)‘access point’ means a physical point, located inside or outside the building, accessible to undertakings providing or authorised to provide public communications networks, where connection to the high-speed-ready in-building physical infrastructure is made available.

Article 3 - Access to existing physical infrastructure

1. Member States shall ensure that every network operator has the right to offer to undertakings providing or authorised to provide electronic communications networks access to its physical infrastructure with a view to deploying elements of high-speed electronic communications networks. Reciprocally, Member States may provide for the right of public communications network operators to offer access to their physical infrastructure for the purpose of deploying networks other than electronic communications networks.

2. Member States shall ensure that, upon written request of an undertaking providing or authorised to provide public communications networks, any network operator has the obligation to meet all reasonable requests for access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks. Such written request shall specify the elements of the project for which the access is requested, including a specific time frame.

3. Member States shall require that every refusal of access be based on objective, transparent, and proportionate criteria, such as:

(a)the technical suitability of the physical infrastructure to which access has been requested to host any of the elements of high-speed electronic communications networks referred to in paragraph 2;

(b)availability of space to host the elements of high-speed electronic communications networks referred to in paragraph 2, including the network operator's future needs for space that are sufficiently demonstrated;

(c)safety and public health concerns;

(d)integrity and security of any network, in particular of critical national infrastructure;

(e)the risk of serious interferences of the planned electronic communications services with the provision of other services over the same physical infrastructure;

(f)the availability of viable alternative means of wholesale physical network infrastructure access provided by the network operator and suitable for the provision of high-speed electronic communications networks, provided that such access is offered under fair and reasonable terms and conditions.

Member States shall ensure that the network operator states the reasons for the refusal within two months from the date of the receipt of the complete request for access.

4. Where access is refused or agreement on specific terms and conditions, including price, has not been reached within two months from the date of receipt of the request for access, Member States shall ensure that either party is entitled to refer the issue to the competent national dispute settlement body.

5. Member States shall require the national dispute settlement body referred to in paragraph 4 to issue, taking full account of the principle of proportionality, a binding decision to resolve the dispute initiated pursuant to paragraph 4, including the setting of fair and reasonable terms and conditions, including price where appropriate.

The national dispute settlement body shall resolve the dispute, within the shortest possible time frame and in any case within four months from the date of the receipt of the complete request except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court.

Where the dispute relates to access to the infrastructure of an electronic communications network provider and the national dispute settlement body is the national regulatory authority, it shall, where appropriate, take into account the objectives set out in Article 8 of Directive 2002/21/EC. Any price set by the dispute settlement body shall ensure that the access provider has a fair opportunity to recover its costs and shall take into account the impact of the requested access on the business plan of the access provider, including the investments made by the network operator to whom access is requested, in particular in the physical infrastructures used for the provision of high-speed electronic communications services.

6. This Article shall be without prejudice to the right to property of the owner of the physical infrastructure in cases where the network operator is not the owner, and to the right to property of any other third parties, such as landowners and private property owners.

Article 4 - Transparency concerning physical infrastructure

1. Member States shall ensure that, in order to request access to physical infrastructure in accordance with Article 3(2), every undertaking providing or authorised to provide public communications networks has the right to access, upon request, the following minimum information concerning the existing physical infrastructure of any network operator:

(a)location, and route;

(b)type and current use of the infrastructure; and

(c)a contact point.

Member States shall ensure that the undertaking requesting access specifies the area in which it envisages deploying elements of high-speed electronic communications networks.

Member States may allow access to the minimum information to be limited only if necessary in view of the security of the networks and their integrity, national security, public health or safety, confidentiality or operating and business secrets.

2. Member States may require every public sector body holding, in electronic format, by reason of its tasks elements of the minimum information referred to in paragraph 1 concerning the physical infrastructure of a network operator to make it available via the single information point by electronic means before 1 January 2017, and Member States shall require such public sector bodies to make it available, upon request, to undertakings providing or authorised to provide public communications networks, without prejudice to limitations pursuant to paragraph 1. Any update to that information and any new element of minimum information referred to in paragraph 1 received by the public sector body shall be made available to the single information point within two months from the date of its receipt. That period may be extended by a maximum of one month, where this is required to guarantee the reliability of the information provided.

3. Minimum information made available to a single information point pursuant to paragraph 2 shall be accessible promptly, via the single information point, in electronic format and under proportionate, non-discriminatory and transparent terms. Member States shall ensure that access to the minimum information pursuant to this paragraph is made available via the single information point by 1 January 2017.

4. Where the minimum information referred to in paragraph 1 is not available via the single information point, Member States shall require network operators to provide access to such information upon the specific written request by an undertaking providing or authorised to provide public communications networks. Such request shall specify the area envisaged for the deployment of elements of high-speed electronic communications networks. Access to information shall be granted within two months from the date of receipt of the written request under proportionate, non-discriminatory and transparent terms, without prejudice to the limitations pursuant to paragraph 1.

5. Upon the specific written request of an undertaking providing or authorised to provide public communications networks, Member States shall require network operators to meet reasonable requests for on-site surveys of specific elements of their physical infrastructure. Such request shall specify the elements of the network concerned with a view to deploying elements of high-speed electronic communications networks. On-site surveys of the specified network elements shall be granted under proportionate, non-discriminatory and transparent terms within one month from the date of receipt of the written request, without prejudice to the limitations pursuant to paragraph 1.

6. Member States shall ensure that, in the event of a dispute arising in connection with the rights and obligations provided for in this Article, either party is entitled to refer the dispute to a national dispute settlement body. The national dispute settlement body shall, taking full account of the principle of proportionality, issue a binding decision to resolve the dispute within the shortest possible time frame and in any case within two months, except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court.

7. Member States may provide for exemptions from the obligations provided for in paragraphs 1 to 5 in the case of existing physical infrastructures considered not technically suitable for the deployment of high-speed electronic communications networks or in case of critical national infrastructure. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission.

8. Member States shall ensure that the undertakings providing or authorised to provide public communications networks that obtain access to information pursuant to this Article take appropriate measures to ensure respect for confidentiality, and operating and business secrets.

Article 5 - Coordination of civil works

1. Member States shall ensure that every network operator has the right to negotiate agreements concerning the coordination of civil works with undertakings providing or authorised to provide electronic communications networks with a view to deploying elements of high-speed electronic communications networks.

2. Member States shall ensure that every network operator performing directly or indirectly civil works, either fully or partially financed by public means, meets any reasonable request to coordinate civil works on transparent and non-discriminatory terms, made by undertakings providing or authorised to provide public communications networks with a view to deploying elements of high-speed electronic communications networks. Such request shall be met provided that:

(a)this will not entail any additional costs, including because of additional delays, for the initially envisaged civil works;

(b)this will not impede control over the coordination of the works; and

(c)the request to coordinate is filed as soon as possible and in any case at least one month before the submission of the final project to the competent authorities for permit granting.

Member States may provide rules on apportioning the costs associated with the coordination of civil works.

3. Where an agreement on the coordination of civil works pursuant to paragraph 2 is not achieved within one month from the date of receipt of the formal request to negotiate, Member States shall ensure that any party is entitled to refer the issue to the competent national dispute settlement body.

4. Member States shall ensure that the national dispute settlement body referred to in paragraph 3 issues, taking full account of the principle of proportionality, a decision to resolve the dispute initiated pursuant to paragraph 3, including the determination of fair and non-discriminatory terms, conditions and charges where appropriate.

The national dispute settlement body shall resolve the dispute within the shortest possible time frame, and in any case within two months from the date of the receipt of the complete request, except in exceptional circumstances, without prejudice to the possibility for any party to refer the case to a court.

5. Member States may provide for exemptions from the obligations provided for in this Article for civil works of insignificant importance, such as in terms of value, size or duration, or in the case of critical national infrastructure. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission.

Article 6 - Transparency concerning planned civil works

1. In order to negotiate agreements on coordination of civil works referred to in Article 5, Member States shall require any network operator to make available upon the specific written request of an undertaking providing or authorised to provide public communications networks the following minimum information concerning on-going or planned civil works related to its physical infrastructure for which a permit has been granted, a permit granting procedure is pending or first submission to the competent authorities for permit granting is envisaged in the following six months:

(a)the location and the type of works;

(b)the network elements involved;

(c)the estimated date for starting the works and their duration; and

(d)a contact point.

The request of an undertaking providing or authorised to provide public communications networks shall specify the area in which it envisages deploying elements of high-speed electronic communications networks. Within two weeks from the date of the receipt of the written request, network operators shall provide the requested information under proportionate, non-discriminatory and transparent terms. Member States may allow access to the minimum information to be limited only when considered necessary in view of the security of the networks and their integrity, national security, public health or safety, confidentiality or operating and business secrets.

2. The network operator may refuse the request pursuant to paragraph 1 if:

(a)it has made the requested information publicly available in electronic format; or

(b)access to such information is ensured via the single information point.

3. Member States shall ensure that the network operator makes the requested minimum information referred to in paragraph 1 available via the single information point.

4. Member States shall ensure that, in the event of a dispute arising in connection with the rights and obligations provided for in this Article, either party is entitled to refer it to a national dispute settlement body. The national dispute settlement body shall, taking full account of the principle of proportionality, issue a binding decision to resolve the dispute within the shortest possible time frame and in any case within two months, except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court.

5. Member States may provide for exemptions from the obligations provided for in this Article for civil works of insignificant value or in the case of critical national infrastructure. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission.

Article 7 - Permit-granting procedure

1. Member States shall ensure that all relevant information concerning the conditions and procedures applicable for granting permits for civil works needed with a view to deploying elements of high-speed electronic communications networks, including any information concerning exemptions applicable to such elements as regards some or all permits required under national law, is available via the single information point.

2. Member States may provide for the right of every undertaking providing or authorised to provide public communications networks to submit, by electronic means via the single information point, applications for permits required for civil works which are needed with a view to deploying elements of high-speed electronic communications networks.

3. Member States shall take the necessary measures, in order to ensure that the competent authorities grant or refuse permits within four months from the date of the receipt of a complete permit request, without prejudice to other specific deadlines or obligations laid down for the proper conduct of the procedure which are applicable to the permit granting procedure in accordance with national or Union law or of appeal proceedings. Member States may provide that, exceptionally, in duly justified cases, that deadline may be extended. Any extension shall be the shortest possible in order to grant or refuse the permit. Any refusal shall be duly justified on the basis of objective, transparent, non-discriminatory and proportionate criteria.

4. Member States may ensure that every undertaking providing or authorised to provide public communications networks which has suffered damage as a result of non-compliance with the deadlines applicable under paragraph 3 has the right to receive compensation for the damage suffered, in accordance with national law.

Article 8 - In-building physical infrastructure

1. Member States shall ensure that all newly constructed buildings at the end-user's location, including elements thereof under joint ownership, for which applications for building permits have been submitted after 31 December 2016, are equipped with a high-speed-ready in-building physical infrastructure, up to the network termination points. The same obligation applies in the event of major renovation works for which applications for building permits have been submitted after 31 December 2016.

2. Member States shall ensure that all newly constructed multi-dwelling buildings, for which applications for building permits have been submitted after 31 December 2016, are equipped with an access point. The same obligation applies in the event of major renovation works concerning multi-dwelling buildings for which applications for building permits have been submitted after 31 December 2016.

3. Buildings equipped in accordance with this Article shall be eligible to receive the voluntary ‘broadband-ready’ label in Member States that have chosen to introduce such a label.

4. Member States may provide for exemptions from the obligations provided for in paragraph 1 and 2 for categories of buildings, in particular single dwellings, or major renovation works in cases in which the fulfilment of those obligations is disproportionate, such as in terms of costs for individual or joint owners or in terms of type of building, such as specific categories of monuments, historic buildings, holiday homes, military buildings or other buildings used for national security purposes. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission.

Article 9 - Access to in-building physical infrastructure

1. Member States shall ensure that, subject to the first subparagraph of paragraph 3, every public communications network provider has the right to roll out its network at its own costs, up to the access point.

2. Member States shall ensure that, subject to the first subparagraph of paragraph 3, every public communications network provider has the right to access any existing in-building physical infrastructure with a view to deploying a high-speed electronic communications network if duplication is technically impossible or economically inefficient.

3. Member States shall ensure that any holder of a right to use the access point and the in-building physical infrastructure meets all reasonable requests for access from public communications network providers under fair and non-discriminatory terms and conditions, including price, where appropriate.

Where agreement on access referred to in paragraph 1 or 2 is not achieved within two months from the date of receipt of the formal request for access, Member States shall ensure that each party has the right to refer the issue to the competent national dispute settlement body in order to assess compliance with the requirements provided for in those paragraphs. The national dispute settlement body shall, taking full account of the principle of proportionality, issue a binding decision to resolve the dispute within the shortest possible time frame and in any case within two months, except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court.

4. Member States may grant exemptions from paragraphs 1 to 3 for buildings where access to an existing network that terminates at the end-user's location and that is suitable for the provision of high-speed electronic communications services is ensured on objective, transparent, proportionate and non-discriminatory terms and conditions.

5. In the absence of available high-speed-ready in-building infrastructure, Member States shall ensure that every public communications network provider has the right to terminate its network at the premises of the subscriber, subject to the agreement of the subscriber, provided that it minimises the impact on the private property of third parties.

6. This Article shall be without prejudice to the right to property of the owner of the access point or the in-building physical infrastructure in cases where the holder of a right to use that infrastructure or access point is not the owner thereof, and to the right to property of other third parties, such as landowners and building owners.

Member States may lay down rules on adequate financial compensation of persons suffering damage as a result of the exercise of the rights provided for in this Article.

Article 10 - Competent bodies

1. Member States shall ensure that each of the tasks assigned to the national dispute settlement body is undertaken by one or more competent bodies.

2. The national dispute settlement body appointed by a Member State pursuant to paragraph 1 shall be legally distinct and functionally independent of any network operator. Member States may allow the national dispute settlement body to charge fees to cover the costs of carrying out the tasks assigned to it.

3. Member States shall require that all parties cooperate fully with the national dispute settlement body.

4. Member States shall appoint one or more competent bodies at national, regional or local level to perform the functions of the single information point referred to in Articles 4, 6 and 7. In order to cover the costs of carrying out those functions, Member States may allow for fees to be charged for the use of the single information points.

5. Member States shall notify to the Commission the identity of each competent body in accordance with this Article for carrying out a function under this Directive by 1 July 2016 and any modification thereof, before such designation or modification enters into force.

6. Any decisions taken by any of the competent bodies referred to in this Article shall be subject to an appeal before a court in accordance with national law.

Article 11 - Penalties

Member States shall lay down rules on penalties applicable to infringements of national measures adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided shall be appropriate, effective, proportionate and dissuasive.

Article 12 - Review

The Commission shall present a report to the European Parliament and the Council by 1 July 2018 on the implementation of this Directive. The report shall include a summary of the impact of the measures provided by this Directive and an assessment of the progress towards achieving its objectives, including whether and how the Directive could further contribute to achieving more ambitious broadband targets than those set out in the Digital Agenda.

Article 13 - Transposition

Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2016. They shall inform the Commission thereof.

They shall apply those measures from 1 July 2016.

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

Article 14 - Entry into force

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

Article 15 - Addressees

This Directive is addressed to the Member States.