Explanatory Memorandum to COM(2000)386 - Authorisation of electronic communications networks and services - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2000)386 - Authorisation of electronic communications networks and services. |
|---|---|
| source | COM(2000)386  |
| date | 12-07-2000 |
The present proposal for a Directive is intended to replace the current Directive 97/13/EC on a common framework for general authorisations and individual licences in the field of telecommunications services which was adopted by the European Parliament and by the Council on 10 April 1997 i and had to be implemented by 1 January 1998.
The key elements of the existing Directive are the prohibition of any limitation in the number of new entrants (except to the extent required to ensure an efficient use of radio frequencies), priority given to general authorisations, as opposed to individual licences, and the definition of harmonised principles, including an exhaustive list of licensing conditions.
However, the Commission's Fifth Report on the Implementation of the Telecommunications Regulatory package i expresses serious concern about the way in which the Directive has been implemented within the Community.
The Commission Communication on the results of the public consultation on the 1999 Communications Review and Orientations for the new Regulatory Framework (COM(2000) 239) revealed strong support for significant further harmonisation and simplification of national authorisation rules.
Contents
- 2. Aims and objectives
- 3. Proposed remedies
- Disentangling different categories of conditions
- Simplifying procedures
- Reducing fees and charges and their range of divergence within the EU
- Strengthening the internal market
- 4. Description of proposed articles
- Article 2 - Definitions
- Article 3 - General authorisation of electronic communications services and networks
- Article 4 - Minimum list of rights derived from the general authorisation
- Article 5 - Rights to use radio frequencies and numbers
- Article 6 - Maximum list of conditions attached to the general authorisation and to the rights of use for radio frequencies and numbers
- Article 7 - Procedure for restricted granting of rights to use radio frequencies
- Article 9 - Declarations to facilitate the exercise of rights of way and rights of interconnection
- Article 10 - Compliance with the conditions of the general authorisation or rights of use
- Article 11 - Information required under the general authorisation and for rights of use
- Article 12 - Administrative charges
- Article 13 - Fees for rights of use and rights of way
- Article 14 - Modification of rights and obligations
- Article 15 - Publication of information
- Article 16 - Functioning of the single European market
- Article 17 - Authorisations existing at the date of entry into force of this Directive
- Article 18 - Transposition
- Article 19 - Entry into force
- Article 20 - Addressees
- Annex
- 5. Conclusion
In line with the policy objectives and principles of the new regulatory framework , the present proposal to revise the existing authorisation and licensing regimes is based on the need to stimulate a dynamic, competitive market for communications services, to consolidate the internal market in a converging environment, to restrict regulation to the necessary minimum and to aim at technological neutrality and accommodate converging markets.
Three studies conducted by the European Telecommunications Office under mandates by the European Commission i, have made clear that in the Community today there is no harmonised approach to authorising market entry for communications service providers but a patchwork of fifteen national regimes which are widely divergent in their basic approach and specific detail.
Licence categories created by Member States vary from only two to no less than eighteen, each with its own conditions, procedures, charges and fees attached. To sustain the segmentation created, Member States require many different kinds of information from service providers ranging from nothing at all under the lightest regime, to 49 items under one of the heaviest licensing schemes. As a consequence, the regulatory workload involved in managing the authorisation and licensing regime varies from relatively light to extremely heavy with the result that administrative charges imposed on operators are zero in some Member States and excessive in others.
As the simpler regimes have demonstrated, there is no objective justification for splitting up authorisations in ever so many service categories and this approach should therefore be abandoned. While some Member States have shown that light regimes are feasible, workable and successful, the current Licensing Directive has not prevented other Member States from developing rather heavy handed market access regulation. This is not in line with the policy objective of stimulating the development of a competitive and dynamic market in communications services nor does it take account of convergence between services, networks and technologies. Adjustment at the level of the EU regulatory framework is therefore required.
Moreover, although in today's economic reality, markets of communications services are still fragmented along traditional national borders, the development of pan-European services is picking up and must be encouraged actively. Clearly, the existing divergence does nothing to help the process.
An efficient and effectively functioning single European market can be achieved by rigorously simplifying existing national regimes using the lightest existing regimes as a model. Only if procedures and conditions for authorising electronic communication services are reduced to what is strictly necessary, a single European authorisation or mutual recognition of authorisations, would not seem to be needed to allow and support the development of a dynamic and competitive internal market.
General authorisations instead of individual licences
Although the existing Licensing Directive gives priority to general authorisations, it still leaves a wide margin to Member States for the use of individual licences. A majority of Member States has made ample use of this margin to the extent that individual licences have become the rule rather than the exception in most national regimes. This makes entry in the national market cumbersome and creates a barrier to the development of cross-border services.
- The present proposal intends to cover all electronic communication services and networks under a general authorisation and to limit the use of specific rights to the assignment of radio frequencies and numbers only. In this context, the numbers addressed by the proposal are those falling within national numbering plan telephone numbers.
The Licensing Directive has established an exhaustive list of conditions which may be attached to general authorisations and individual licences. However, in practice this list seems to have been read as establishing conditions which must be imposed. Moreover, individual licences often include conditions which merely repeat provisions of general telecommunications regulation or general legislation. This creates inappropriate linkages and conditionalities between the right to provide services or networks and various requirements of national law and makes authorisations less transparent than they could be.
- The proposed Directive would further limit the number of conditions which may be imposed on service providers and requires a strict separation between conditions under general law, applicable to all undertakings, conditions under the general authorisation and conditions attached to rights of use for radio frequencies and numbers. It clarifies that withdrawing the right to provide services or networks shall only be used as an ultimate sanction but not as a permanent threat for any form of non-compliance with any applicable condition.
In spite of common rules on procedures for licensing , operators consider existing formalities at national level as unnecessarily cumbersome. Some Member States impose cumbersome requirements for information to be provided prior to market entry. Compliance with all conditions has to be proven in advance of service provision. There is no objective need for such extensive prior verification of compliance with licensing conditions, and the lighter national regulatory regimes which have proved their effectiveness in practice, are to be followed as a model in this respect.
- The present proposal therefore aims to ensure that no information is required as a prior condition for market entry and that systematic verification of compliance with conditions attached to authorisations is limited to those conditions for which this is objectively justified, as identified in the proposed Directive.
The present Licensing Directive already requires that administrative charges and fees imposed on operators shall only cover the administrative costs incurred in the issue, management, control and enforcement of the applicable authorisation and licensing schemes. Nevertheless, current practices in some of the Member States have been criticised in the public consultation for lack of transparency and high fees. The widely diverging range of fees within the Community cannot be fully accounted for by diverging regulatory workloads.
- The proposed directive would reduce administrative charges considerably by simplifying the authorisation regimes as described above, thereby reducing the regulatory workload and the attendant administrative costs. It would also create the necessary transparency by requiring national regulatory authorities to publish annual overviews of costs and charges. Moreover, it would require national regulatory authorities to adjust the level of charges in the following year if the total sum of charges collected exceeded administrative costs.
During the public consultation there was some demand for the creation of a single European license for electronic communications services or mutual recognition of authorisations. Especially the satellite industry, cross-border by nature, pleaded the case of a more far- reaching harmonisation of authorisation regimes. However, a majority has implicitly concurred with the Commission's proposal to try and achieve an effective internal market by significantly simplifying national regimes along the lines described above.
The mechanism for harmonisation of licensing conditions and procedures through the CEPT (European Conference of Postal and Telecommunications Administrations) as foreseen in the current Licensing Directive has not been successful. Even the minimal harmonisation format, the one-stop-shopping procedure, has failed to materialise, with the possible exception of the satellite sector where the launch of such a procedure is scheduled for July 2000. With the benefit of hindsight it would now seem unrealistic to expect that where harmonisation cannot be achieved through the Community's supranational decision making procedures, this should be feasible through the intergovernmental framework of CEPT.
However, in the area of radio frequencies, coordination within CEPT has been relatively successful, for instance for the assignment of frequencies for Satellite personal communications systems. Unfortunately, common European assignment of frequencies for S-PCS providers has not been followed through at the national implementation level.
- The present proposal foresees a continuing role for CEPT in the harmonisation of the assignment of radio frequencies. Obligations on Member States to implement agreements reached within CEPT on the harmonised assignment of spectrum will be strengthened. While the proposal relies in principle on simplification of national authorisation regimes to dismantle all significant obstacles to the single European market, further harmonisation measures regarding conditions, procedures or fees may be introduced through a comitology procedure where necessary.
Article 1 - Objective and scope
Implementation of single market, facilitation of market entry. Covers all authorisations relating to the provision of electronic communications services or networks.
Extends the application of the definitions provided by the Framework Directive to this Directive.
Stipulates that the provision of all electronic communications services and networks may be subject to a general authorisation only requiring at most notification or registration, but no explicit decision. Limits information which authorities may request under the notification procedure to the bare minimum(identification of the undertaking, contact persons and description of the service).
Establishes the basic general rights for operators under the general authorisation namely , the right to provide electronic communications services to the public and negotiate interconnection with other public service providers, to establish electronic communications networks and to apply for the necessary rights of way.
Establishes that undertakings may request rights to use radio frequencies and numbers. Requires open, non-discriminatory and transparent allocation and assignment procedures including clarification on transferability and secondary trading of usage rights. Prohibits restriction of rights of use except where this is necessary to ensure the efficient use of radio frequencies (not for numbers as they should not be scarce).Sets time-limits on procedure for granting rights of use.
Article 6 - Maximum list of conditions attached to the general authorisation and to the rights of use for radio frequencies and numbers
Limits and harmonises the conditions which may be attached to the general authorisation and to rights of use by providing an exhaustive list of such conditions.
Establishes the principle that all conditions must be objectively justified, non-discriminatory, proportionate and transparent.
Requires a strict separation between (a) conditions which are not sector specific (taxation, company law, etc.); (b) conditions under the general authorisation and (c) conditions linked to rights of use, in order to increase transparency and to prevent unfair and inappropriate linkage between different categories of rights and obligations.
Imposes strict conditions regarding the limitation of rights of use for radio frequencies (grounds for restriction, selection criteria, types and time-limits for procedures, regular review)
Article 8 - Harmonised assignment of radio frequencies
Ensures the correct implementation of agreements for harmonised assignment of radio frequencies (e.g., as for S-PCS) at national level without restrictions, alterations or delays.
Article 9 - Declarations to facilitate the exercise of rights of way and rights of interconnection
Gives undertakings the right to obtain a confirmation from the national regulatory authority on the right to obtain rights of way and/or rights to negotiate interconnection upon request by such undertakings who may need them to negotiate with other authorities (e.g. communal level) or other undertakings (especially in other Member States).
Provides procedural safeguards (time-limits, rights for undertakings to state their views and to appeal) in case of non-compliance with conditions. Requires Member States to take proportionate measures (not withdrawing the right to provide services or networks or usage rights except in exceptional cases for which an emergency procedure is foreseen).
Limits the information to be required from undertakings to what is strictly necessary and proportionate (no systematic verification of compliance with conditions, only in case of doubt about compliance). The provision allows information requirements for publication of comparative overviews of quality and price of services for the benefit of consumers, for clearly described statistical purposes and for comparative bidding procedures for frequencies.
Stipulates that no information shall be required prior to or as a condition for market access.
Limits charges imposed on service providers to administrative costs only with requirement for Member States to publish such costs and foresees an adjustment of charges in the following year where total charges exceed administrative costs. Ensures that any charges will, in addition, be distributed in proportion to turn-over of undertakings and exempts small and medium sized companies from such charges.
Allows fees for spectrum and number usage subject to principles of non-discrimination, transparency, objective justification and proportionality and subject to policy objectives concerning the development of innovative services and competition.
Requires Member States to give timely notice and allow interested parties to express their views in case of envisaged changes of rights, conditions, procedures, charges and fees.
Requires Member States to publish and keep up to date all information on rights, conditions, procedures, charges and fees concerning general authorisations, rights of use for radio frequencies and numbers and rights of way, in a user friendly way.
Requires regular reporting by the Commission on the state of the internal market and foresees further harmonisation measures if barriers to the internal market persist.
Provides arrangements to facilitate transition from the old to the new regime without limiting rights or extending obligations.
Standard clause. Proposes 31 December 2001 as the ultimate date for transposition of the Directive in national law.
Standard clause.
Standard clause.
Provides exhaustive list of conditions which may be included in the general authorisation or linked to usage rights. Links these conditions to other Directives
The proposed Directive on the authorisation of electronic communications services and networks takes account of the results of the public consultation on the 1999 Review of the existing telecommunications regulatory framework. The proposal presents a lighter and more harmonised system of authorisations throughout the Community, with minimal regulatory barriers to market entry, in order to stimulate the development of new electronic communications services and to allow service providers and consumers to benefit from the economies of scale of the single European market.