Access to electronic communications networks

Outline of the Community (European Union) legislation about Access to electronic communications networks

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Single market for services

Access to electronic communications networks

Document or Iniciative

Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive).

Summary

The Access Directive forms part of the “Telecoms package” which, with four other directives (“framework”, “authorisation”, “universal service” and “privacy and electronic communications”), aims to revise the existing regulatory framework and make the communications networks and services sector more competitive.

The “Telecoms Package” was amended in December 2009 by the two Directives “Better law-making” and the “Citizens’ rights”, as well as by a body of European regulators for electronic communications.

This Directive establishes rights and obligations for operators and for undertakings seeking interconnection and/or access to their networks. The principle is to allow competition rules to act as an instrument for market regulation. However, insofar as there is no effective competition on the market, the national regulatory authorities (NRA) must act, among other things by imposing obligations on operators which have significant market power.

The objective is to establish a framework which will encourage competition by stimulating the development of communications services and networks, and also to ensure that any bottlenecks in the market do not constrain the emergence of innovative services that could benefit the users. The approach adopted is technologically neutral, i.e. the Directive is not intended to introduce rules which could be adapted to technological progress but, instead, to establish a modus operandi to address market problems.

The Directive applies to all forms of communication networks carrying publicly available communications services. These include fixed and mobile telecommunications networks, networks used for terrestrial broadcasting, cable TV networks, and satellite and Internet networks used for voice, fax, data and image transmission.

General principles

Member States must ensure that there are no restrictions which prevent undertakings in the same Member State or in different Member States from negotiating between themselves agreements on access and/or interconnection.

Moreover, the Directive establishes a fundamental rule regarding interconnection to the effect that all network operators have rights and obligations as regards interconnection agreements. Thus, operators of public communications networks have a right and, when requested by other undertakings so authorised, an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services.

Obligations imposed on operators

The national regulatory authorities are responsible for carrying out regular market analyses in order to determine whether one or more operators have significant power on the market in question. Where, following a market analysis, an operator is identified as having significant power on a given market, the national regulatory authorities will impose the following obligations on that operator, according to the circumstances:

• obligations of transparency in relation to interconnection and/or access requiring operators to make public specified information such as accounting information, technical specifications or network characteristics;
• obligations of non-discrimination to ensure that operators apply equivalent conditions in equivalent circumstances to undertakings providing equivalent services;
• obligations of accounting separation in relation to specified activities concerning interconnection and/or access;
• obligations of access to, and use of, specific network facilities. Operators may be required inter alia:
  • to give third parties access to specified network elements and/or facilities, including unbundled access to the local loop;
  • to negotiate in good faith with undertakings requesting access;
  • not to withdraw access to facilities already granted;
  • to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services;
  • to provide co-location or other forms of associated facility sharing;
  • to give access to associated services such as those related to identity, location and occupation.
• obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems;
• obligations relating to functional separation, according to which vertically integrated undertakings must place activities related to the wholesale provision of relevant access products in an independently operating business entity in order to supply access products and services to all undertakings, including to other business entities within the parent company, on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes.

In the case of persisting market failures despite the implementation of these obligations, the NRA may impose an obligation on an undertaking to place activities related to provision and services in an independently operating business entity. In the case of undertakings considered to be in a dominant position in one or many markets, they may transfer their local access network assets to another undertaking. They must inform the NRA of their intention so that the NRA can assess the effect of the transfer on the obligations imposed by Directive 2002/21/EC.

Procedural provisions

The obligations imposed on undertakings under the measures laid down by the Directive must be published in a form which is readily accessible to all interested parties (except for information which is confidential, including business secrets).

References

Act	Entry into force – Date of expiry	Deadline for transposition in the Member States	Official Journal
Directive 2002/19/EC	24.4.2002	24.7.2003	OJ L 108 of 24.4.2002

Amending act(s)	Entry into force – Date of expiry	Deadline for transposition in the Member States	Official Journal
Directive 2009/140/EC	19.12.2009	25.5.2011	OJ L 337 of 18.12.2009

AMENDMENT TO THE ANNEXES

Annex II – Minimum list of items to be included in a reference offer for wholesale network infrastructure access, including shared or fully unbundled access to the local loop at a fixed location to be published by notified operators with significant market power (SMP)

Directive 2009/140/EC [Official Journal L 337 of 18.12.2009].

Related Acts

Commission guidelines on the market analysis and the assessment of significant market power under the regulatory framework for electronic communications networks and services [Official Journal C 165 of 11.7.2002]

Under the new regulatory framework on communications services, these guidelines, which were adopted in July 2002, lay down the principles on which the national regulatory authorities must base their market analysis in order to guarantee effective competition.