Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Text with EEA relevance)
Definitions
For the purposes of this Directive the following definitions shall apply:
1. "electronic communications network" shall mean transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed (circuit - and packet - switched, including Internet) and mobile terrestrial networks, and electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;
2. "public communications network" shall mean an electronic communications network used wholly or mainly for the provision of public electronic communications services;
3. "electronic communications services" shall mean a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting but exclude services providing or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services as defined in Article 1 of Directive 98/34/EC which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;
4. "publicly available electronic communications services" shall mean electronic communications services available to the public;
5. "exclusive rights" shall mean the rights that are granted by a Member State to one undertaking through any legislative, regulatory or administrative instrument, reserving it the right to provide an electronic communications service or to undertake an electronic communications activity within a given geographical area;
6. "special rights" shall mean the rights that are granted by a Member State to a limited number of undertakings through any legislative, regulatory or administrative instrument which, within a given geographical area:
(a) designates or limits to two or more the number of such undertakings authorised to provide an electronic communications service or undertake an electronic communications activity, otherwise than according to objective, proportional and non-discriminatory criteria, or
(b) confers on undertakings, otherwise than according to such criteria, legal or regulatory advantages which substantially affect the ability of any other undertaking to provide the same electronic communications service or to undertake the same electronic communications activity in the same geographical area under substantially equivalent conditions;
7. "satellite earth station network" shall mean a configuration of two or more earth stations which interwork by means of a satellite;
8. "cable television networks" shall mean any mainly wire-based infrastructure established primarily for the delivery or distribution of radio or television broadcast to the public.
Exclusive and special rights for electronic communications networks and electronic communications services
1. Member States shall not grant or maintain in force exclusive or special rights for the establishment and/or the provision of electronic communications networks, or for the provision of publicly available electronic communications services.
2. Member States shall take all measures necessary to ensure that any undertaking is entitled to provide electronic communications services or to establish, extend or provide electronic communications networks.
3. Member States shall ensure that no restrictions are imposed or maintained on the provision of electronic communications services over electronic communications networks established by the providers of electronic communications services, over infrastructures provided by third parties, or by means of sharing networks, other facilities or sites without prejudice to the provisions of Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC.
4. Member States shall ensure that a general authorisation granted to an undertaking to provide electronic communications services or to establish and/or provide electronic communications networks, as well as the conditions attached thereto, shall be based on objective, non-discriminatory, proportionate and transparent criteria.
5. Reasons shall be given for any decision taken on the grounds set out in Article 3(1) of Directive 2002/20/EC preventing an undertaking from providing electronic communications services or networks.
Any aggrieved party should have the possibility to challenge such a decision before a body that is independent of the parties involved and ultimately before a court or a tribunal.
Vertically integrated public undertakings
In addition to the requirements set out in Article 2(2), and without prejudice to Article 14 of Directive 2002/21/EC, Member States, shall ensure that vertically integrated public undertakings which provide electronic communications networks and which are in a dominant position do not discriminate in favour of their own activities.
Rights of use of frequencies
Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with Community law:
1. Member States shall not grant exclusive or special rights of use of radio frequencies for the provision of electronic communications services.
2. The assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non-discriminatory and proportionate criteria.
Directory services
Member States shall ensure that all exclusive and/or special rights with regard to the establishment and provision of directory services on their territory, including both the publication of directories and directory enquiry services, are abolished.
Universal service obligations
1. Any national scheme pursuant to Directive 2002/22/EC, serving to share the net cost of the provision of universal service obligations shall be based on objective, transparent and non-discriminatory criteria and shall be consistent with the principle of proportionality and of least market distortion. In particular, where universal service obligations are imposed in whole or in part on public undertakings providing electronic communications services, this shall be taken into consideration in calculating any contribution to the net cost of universal service obligations.
2. Member States shall communicate any scheme of the kind referred to in paragraph 1 to the Commission.
Satellites
1. Member States shall ensure that any regulatory prohibition or restriction on the offer of space segment capacity to any authorised satellite earth station network operator are abolished, and shall authorise within their territory any space-segment supplier to verify that the satellite earth station network for use in connection with the space segment of the supplier in question is in conformity with the published conditions for access to such person's space segment capacity.
2. Member States which are party to international conventions setting up international satellite organisations shall, where such conventions are not compatible with the competition rules of the EC Treaty, take all appropriate steps to eliminate such incompatibilities.
Cable television networks
1. Each Member State shall ensure that no undertaking providing public electronic communications networks operates its cable television network using the same legal entity as it uses for its other public electronic communications network, when such undertaking:
(a) is controlled by that Member State or benefits from special rights; and
(b) is dominant in a substantial part of the common market in the provision of public electronic communications networks and publicly available telephone services; and
(c) operates a cable television network which has been established under special or exclusive right in the same geographic area.
2. The term "publicly available telephone services" shall be considered synonymous with the term "public voice telephony services" referred to in Article 1 of Directive 1999/64/EC.
3. Member States which consider that there is sufficient competition in the provision of local loop infrastructure and services in their territory shall inform the Commission accordingly.
Such information shall include a detailed description of the market structure. The information provided shall be made available to any interested party on demand, regard being had to the legitimate interest of undertakings in the protection of their business secrets.
4. The Commission shall decide within a reasonable period, after having heard the comments of these parties, whether the obligation of legal separation may be ended in the Member State concerned.
5. The Commission shall review the application of this Article not later than 31 December 2004.
Member States shall supply to the Commission not later than 24 July 2003 such information as will allow the Commission to confirm that the provisions of this Directive have been complied with.
Repeal
Directive 90/388/EC, as amended by the Directives listed in Annex I, Part A, is repealed with effect from 25 July 2003, without prejudice to the obligations of the Member States in respect of the time limits for transposition laid down in Annex I, Part B.
References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II.
This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.
This Directive is addressed to the Member States.
Done at Brussels, 16 September 2002.
For the Commission
Mario Monti
Member of the Commission
(1) OJ L 192, 24.7.1990, p. 10.
(2) OJ L 175, 10.7.1999, p. 39.
(3) OJ L 108, 24.4.2002, p. 33.
(4) OJ L 108, 24.4.2002, p. 21.
(5) OJ L 108, 24.4.2002, p. 7.
(6) OJ L 108, 24.4.2002, p. 51.
(7) OJ L 201, 31.7.2002, p. 37.
(8) OJ L 298, 17.10.1989, p. 23.
(9) OJ L 202, 30.7.1997, p. 60.
(10) OJ L 20, 26.1.1996, p. 59.
(11) OJ L 268, 19.10.1994, p. 15.
(12) OJ L 256, 26.10.1995, p. 49.
(13) OJ L 74, 22.3.1996, p. 13.
Supplementary provisions
ANNEX ISupplementary provisions
PART A
List of Directives to be repealed
Directive 90/388/EEC (OJ L 192, 24.7.1990, p. 10)
Articles 2 and 3 of Directive 94/46/EC (OJ L 268, 19.1.1994, p. 15)
Directive 95/51/EC (OJ L 256, 26.10.1995, p. 49)
Directive 96/2/EC (OJ L 20, 26.1.1996, p. 59)
Directive 96/19/EC (OJ L 74, 22.3.1996, p. 13)
Directive 1999/64/EC (OJ L 175, 10.7.1999, p. 39)
PART B
Transposition dates for the above Directives
>TABLE>
ANNEX II
Correlation table
>TABLE>
Source: EUR-Lex (Publications Office of the EU), Β© European Union, reuse permitted under Commission Decision 2011/833/EU.
