Satellite Regulation: in Europe

Satellite Regulation
in Europe
_ Legal Texts and Materials
Edited by
Stéphan Le Gouef
~ Kluwer Law International AR

SATELLITE REGULATION IN EUROPE
Legal Texts and Materials
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SATELLITE REGULATION
IN EUROPE
LEGAL TEXTS AND MATERIALS
Edited by
STEPHAN LE GOUEFF
INFORMATION RESOURCE
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Satellite regulation in Europe : legal texts and materials / edited by Stephan Le Goueff.
p. cm.
ISBN 9041113460 (HB: alk. paper)
1. Artificial satellites in telecommunications—Law and legislation—European Union
countries. I. Le Goueff, Stephan.
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Table of Contents
Introduction XV
1. TELECOMMUNICATIONS
1.1. European Union (E.U.)
1.1.1. General Telecommunications Documents

Council Directive of 24 July 1986 on the initial stage of the mutual
recognition of type approval for telecommunications terminal
equipment (86/361/EEC; OJ L217/21, 05.08.86) 3
Commission Directive of 16 May 1988 on competition in the markets in
telecommunications terminal equipment (88/301/EEC: OJ L131/73,
04.10.88). 12
Council Directive of 28 June 1990 on the establishment of the internal
market for telecommunications services through the implementation of
open network provision (ONP) (90/387/EEC: OJ L192/1, 24.07.1990) 20
Council Resolution of 28 June 1990 on the strengthening of the Europe-
wide co-operation on radio frequencies, in particular with regard to
services with a pan-European dimension (90/C 166/02: OJ C166/4,
07.07.1990) 33
Commission Directive of 28 June 1990 on competition in the markets
for telecommunications services (90/388/EEC: OJ L192/10,
24.07.1990) 38
Council Directive of 29 April 1991 on the approximation of the laws of
the Member States concerning telecommunications terminal equipment,
including the mutual recognition of their conformity (91/263/EEC: OJ
E28, 23.05.1991) 50
Commission Guidelines on the application of EEC competition rules in
the telecommunications sector (91/C 233/02: OJ C233, 6.09.1991) 71
Council Directive of 5 June 1992 on the application of open network

provision to leased lines (92/44/EEC: OJ L165/27, 19.06.1992) 110
Council Resolution of 19 November 1992 on the implementation in the

Community of the European Radiocommunication Committee
Decisions (92/C 318/01;
OJ C 318/1, 04.12.92) 126
vi Contents
Council Resolution of 29 June 1995 on the further development of

mobile and personal communications in the European Union (95/C,
188/02: OJ 188/3, 22.07.1995) 128
Council Directive of 13 December 1995 on the application of open
network provision (ONP) to voice telephony (95/62/EC: OJ L321/6,
30.12.95) 131
Commission Directive of 16 January 1996 amending Directive 90/388/
EEC with regard to mobile and personal communications (96/2/EC: OJ
L20/59, 26.01.1996) 160
Commission Directive of 13 March 1996 amending Commission
Directive 90/388/EEC with regard to the implementation of full
competition in the telecommunications markets (96/19/EC: OJ L74/13,
22.03.1996) 172
Directive of the European Parliament and of the Council of 10 April
1997 on a common framework for general authorisations and individual
licences in the field of telecommunications services (97/13/EC: OJ
L117, 07054997) 192
Directive of the European Parliament and Council of 30 June 1997 on
interconnections with regard to ensuring universal service and
interoperability through application of the principles of Open Network
Provision (ONP) (97/33/EC: OJ L199/32, 26.07.1997) 212
Directive of the European Parliament and of the Council of 6 October
1997 amending Council Directives 90/387/EEC and 92/44/EEC for the
purpose of adaptation to a competitive environment in
telecommunications (97/51/EC: OJ L295, 29.10.1997) 242
Council Decision of 28 November 1997 concerning the conclusion on
behalf of the European Community, as regards matters within its
competence, of the results of the WTO negotiations on basic
telecommunications services (97/838/EC: OJ L347, 18.12.1997)
Directive of the European Parliament and of the Council of 26 February
1998 on the application of open network provision (ONP) to voice
telephony and on universal service for telecommunications in a
competitive environment (98/10/EC: OJ L 101, 01/04/1998) pa
Decision of the European Parliament and of the Council of 14
December 1998 on the co-ordinated introduction of a third-generation
mobile and wireless communications system (UMTS) in the Community
(128/1999/EC: OJ L 017, 22/01/1999) 306
Contents vii
Directive of the European Parliament and of the Council of 9 March

1999 on radio equipment and telecommunications terminal equipment
and the mutual recognition of their conformity (1999/5/EC: OJ L 091,
07/04/1999) 317
1.1.2. Satellite Communications Specific Documents
Council Resolution of 19 December 1991 on the development of the
common market for satellite communications services and equipment
(92/C 8/01; OJ C8, 14.01.1992) 345
European Parliament Resolution of 19 January 1993 on a common
approach in the field of satellite communications in the European
Community (A3-0344/92; OJ C42/30, 15.02.1993) 348
Council Directive of 29 October 1993 supplementing Directive 91/263/
EEC in respect of satellite earth station equipment (93/97/EEC: OJ
L290, 24.11.1993) 349
Council Resolution of 7 December 1993 on the introduction of satellite
personal communication services in the Community (93C 339/01: OJ
C339, 16.12.1993) 361
Commission Directive of 13 October 1994 amending Directive 88/301/
EEC and Directive 90/388/EEC in particular with regard to satellite
communications (94/46/EEC: OJ L268/15, 19.10.1994) 364
Council Resolution of 22 December 1994 on further development of the
Community’s satellite communications policy, especially with regard to
the provision of, and access to, space segment capacity (94/C 379/04;
OJ C379, 31/12/1994) X15
Decision of the European Parliament and the Council of 24 March 1997
on a co-ordinated authorisation approach in the field of satellite
personal communications services in the Community (710/97/EC: OJ
L150, 23.04.1997) S79
Directive of the European Parliament and of the Council of 12 February
1998 relating to telecommunications terminal equipment and satellite
earth station equipment, including the mutual recognition of their
conformity (98/13/EC: OJ L74, 12.03.1998) 391
1.1.3. Common Technical Regulations
Commission Decision of 17 June 1998 on a common technical
regulation for low data rate land mobile satellite earth stations (LMES)
operating in the 11/12/14 GHz frequency bands (notified under
document number C(1998) 1608) (98/516/EC OJ L232, 19.08.1998) 422
vili Contents

regulation for satellite news gathering transportable earth stations (SNG
TES) operating in the 11—-12/13—14 GHz frequency bands (notified
under document number C(1998) 1609) (98/517/EC: OJ L232,
19.08.1998) 425
regulation for very small aperture terminals (VSATs) operating in the
11/12/14 GHz frequency bands (notified under document number
C(1998) 1612) (98/519/EC: OJ L232, 19.08.1998) 428
Commission Decision of 3 September 1998 on a common technical
regulation for Satellite Personal Communications Networks (S-PCN)
Mobile Earth Stations (MESs), including handheld earth stations, for S-
PCN operating in the 2.0 GHz frequency bands under the Mobile
Satellite Service (MSS) (notified under document number C(1998) 2376)
(98/534/EC: OJ L247, 05.09.1998) 431
regulation for Satellite Personal Communications Networks (S-PCN)
Mobile Earth Stations (MESs), including handheld earth stations, for S-
PCN operating in the 1.6/2.4 GHz frequency bands under the Mobile
Satellite Service (MSS) (notified under document number C(1998) 2375)
(98/533/EC: OJ L247, 05.09.1998) 434
regulation for low data rate land mobile satellite earth stations (LMES)
operating in the 1.5—1.6 GHz frequency bands (98/578/EC: OJ L278/
46, 15.10.98) 437
1.2. European Conference of Postal and Telecommunications Administration

(C.E.P.T,)
1.2.1. European Radiocommunication Committee (E.R.C.)
CEPT/ERC/DEC(95)01; ERC Decision of 1 December 1995 on the free
circulation of radio equipment in CEPT member countries 440
CEPT/ERC/DEC(97)03; ERC Decision of 30 June 1997 on the
Harmonised Use of Spectrum for Satellite Personal Communication
Services (S-PCS) operating within the bands 1610—1626.5 MHz, 2483.5—
2500 MHz, 1980-2010 MHz and 2170-2200 MHz 445
CEPT/ERC/DEC(97)04; ERC Decision of 30 June 1997 on transitional
arrangements for the Fixed Service and the Mobile-Satellite Service in
the bands 1980-2010 MHz and 2170-2200 MHz in order to facilitate the
harmonised introduction and development of Satellite Personal
Communications Services 459
Contents 1x
CEPT/ERC/DEC(97)05; ERC Decision of 30 June 1997 on free

circulation, use and licensing of Mobile Earth Stations of Satellite
Personal Communications Services (S-PCS) operating within the bands
1610—1626.5 MHz, 2483.5—2500 MHz, 1980-2010 MHz and 2170-2200
MHz within the CEPT 464
frequency bands for the introduction of the Universal Mobile
Telecommunications System (UMTS) 469
provision of information for a data base of licensing requirements for
VSAT/SNG 474
CEPT/ERC/DEC(98)01; ERC Decision of 20 March 1998 on free
circulation and use of Inmarsat-D terminals in CEPT member countries 479

circulation and use of Inmarsat-phone (also known as Inmarsat Mini-
M) terminals 482
circulation and use of EMS-PRODAT terminals 485
circulation and use of EMS-MSSAT terminals 488
CEPT/ERC/DEC(98)12; ERC Decision of 23 November 1998 on

exemption from Individual Licensing of Inmarsat-D terminals 491

exemption from Individual Licensing of Inmarsat-C terminals for land
mobile applications 494

Exemption from Individual Licensing of Inmarsat-M terminals for land
Exemption from Individual Licensing of Omnitracs terminals for the
Euteltracs system 500

Exemption from Individual Licensing of ARCANET Suitcase terminals 503
Exemption from Individual Licensing of EMS-PRODAT terminals for
land mobile applications 506
x Contents

Exemption from Individual Licensing of EMS-MSSAT terminals for
CEPT/ERC/DEC(98)24; ERC Decision of 23 November 1998 on free
circulation and use of ARCANET Suitcase terminals SuZ
CEPT/ERC DEC(98)29; ERC Decision of 23 November 1998 on
exemption from Individual Licensing on Inmarsat-phone terminals (also
known as Inmarsat mini-M) ab
CEPT/ERC/REC 21-15; ERC Recommendation of 1998 on free
circulation and use of land mobile satellite service terminals in Europe 518
CEPT/ERC/REC 21-16; ERC Recommendation of 1998 on type
approval for Land Mobile Satellite Service terminals 532
CEPT/ERC DEC(99)05; ERC Decision of 10 March 1999 on free
circulation, use and exemption from individual licensing of Mobile
Earth Stations of S-PCS < 1 GHz systems 535
CEPT/ERC DEC(99)06; ERC Decision of 10 March 1999 on the
harmonised introduction of satellite personal communication systems
operating in the bands below 1 GHz (S-PCS < | GHz) 540
Exemption from Individual Licensing of Inmarsat-B terminals for land
circulation and use of Inmarsat-B terminals in CEPT member countries
enlarging the field of application of ERC/DEC/(95)01 bo2
Exemption from Individual Licensing of Inmarsat-M4 terminals for
circulation and use of Inmarsat-M4 terminals in CEPT member
countries enlarging the field of application of ERC/DEC/(95)01 556
CEPT/ERC/DEC(99)22; ERC Decision of 29 November 1999 on the
Establishment of a Regulatory Database of licensing regimes for
telecommunication networks and services 558
Exemption from Individual Licensing of Receive Only Earth Stations
(ROES) 561
Contents Xi
1.2.2. European Committee for Telecommunications Regulatory Affairs

(E.C.T. R.A.)
CEPT/ECTRA/DEC(97)01; ECTRA Decision of 12 March 1997 on the
provision of Information for a database of licensing requirements for
VSAT/SNG 563
CEPT/ECTRA/DEC(97)02; ECTRA Decision of 3 July 1997 on
harmonisation of authorisation conditions and co-ordination of
procedures in the field of Satellite Personal Communications Services
(S-PCS) in Europe, operating within the bands 1610—1626.5 MHz,
2483.5—2500 MHz, 1980-2010 MHz and 2170-2200 MHz 567
harmonisation of authorisation conditions in the field of Satellite
Personal Communications Services (S-PCS) in Europe, operating within
the bands 1525—1544/1545-1559 MHz, 1626.5-1645.5—1646.5—1660.5 5/9
harmonisation of authorisation conditions in the field of Satellite
Personal Communications Services (S-PCS) in Europe, operating 1n the
bands below | GHz (S-PCS < 1GHz) 583
CEPT/ECTRA/REC(99)02; ECTRA Recommendation of 3 March
1999 on Milestone compliance of Satellite Personal Communication
Services (S-PCS) in Europe, operating within the bands 1525—1544/
1545-1559 MHz, 1626.5—1645.5/1646.5—1660.5 MHz 590
CEPT/ECTRA/DEC(99)05; ECTRA Decision of 2 December 1999 on
the establishment of a regulatory database of licensing regimes for
telecommunication networks and services 593
1.3. Satellite Action Plan Regulatory Working Group (SAP-RWG)
Satellite Scorecard; Status of implementation of CEPT/ERC and

CEPT/ECTRA Decisions and Recommendations in the European
Union, 13 September 1999 599
1.4. International Telecommunication Union (1.T.U.)

Global Mobile Personal Communications by Satellite Memorandum of
Understanding (GMPCS-MoU), 14 February 1997 602
Arrangements Pursuant to the GMPCS-MolU to Facilitate the
Introduction and Development of Global Mobile Personal
Communications by Satellite (GMPCS), 6-7 October 1997 606
Implementation of the GMPCS-MoU Arrangements, 12-13 March

1998 615
Xil_ Contents
1.5. World Trade Organisation (W.T.O.)

General Agreement on Trade in Services, April 1994 621
Annex on Telecommunications, General Agreement on Trade in
Services (GATS), April 1994 643
Reference Paper of the Negotiating Group on Basic
Telecommunications, 24 April 1996 648
Fourth Protocol to the General Agreement on Trade in Services (GATS),
30 April 1996 651
2. BROADCASTING
Council Directive of 3 November 1986 on the adoption of common
technical specifications of the MAC/packet family of standards for
direct satellite television broadcasting (86/529/EEC; OJ L311/28,
06.11.87) 655
Council Directive of 3 October 1989 on the co-ordination of certain
provisions laid down by law, regulation or administrative action in
Member States concerning the pursuit of television broadcasting
activities (89/552/EEC: OJ L 298, 17.10.1989) 658
Council Directive of 11 May 1992 on the adoption of standards for
satellite broadcasting of television signals (92/38/EEC; OJ L 137/17,
20.05.92) 672
Council Directive of 27 September 1993 on the co-ordination of certain
rules concerning copyright and rights related to copyright applicable to
satellite broadcasting and cable retransmission (93/83/EEC: OJ L 248,
06.10.1993) 678
Directive of the European Parliament and of the Council of 30 June
1997 amending Council Directive 89/552/EEC on the co-ordination of
certain provisions laid down by law, regulation or administrative action
in Member States concerning the pursuit of television broadcasting
activities (97/36/EC: OJ L 202, 30.07.1997) 690
2.2. United Nations (U.N.)
UN Resolution 37192, Principles Governing the Use by States of

Artificial Earth Satellites for International Direct Television
Broadcasting, 10 December 1982 709
Contents xiii
UNESCO Declaration of Guiding Principles on the Use of Satellite

Broadcasting for the Free Flow of Information, the Spread of Education
and Greater Cultural Exchange 713
Brussels Convention Relating to the Distribution of Programme-

Carrying Signals Transmitted by Satellite, 21 May 1974 TAG
3. REMOTE SENSING
3.1. United Nations (U.N.)
UN Resolution 41/65 Principles Relating to Remote Sensing of the

Earth from Outer Space, 3 December 1986 T23.
Convention on the Transfer and Use of Data of Remote Sensing of the
Earth from Outer Space, 19 May 1978 V4)
4. GLOBAL NAVIGATION SATELLITE SYSTEMS

Agreement between the European Community, the European Space

Agency and the European Organisation for the Safety of Air Navigation
on a European Contribution to the development of a global navigation
satellite system (GNSS) (OJ L 194, 10/07/1998) 733
4.2. International Civil Aviation Organisation (I.C.A.O.)
ICAO Assembly Resolution A 32-19, Charter on the Rights and

Obligations of Status Relating to GNNS, 2 October 1998 740
Copyright Acknowledgement 742
ANNEX
Unofficial Consolidated version of Council Directive 89/552/EEC of 3
October 1989, as amended 743
Unofficial Consolidated version of Council Directive 90/387/EEC of 28
June 1990, as amended isu
otDe @
SATELLITE REGULATION IN EUROPE
INTRODUCTION
Commercial satellite activities have undergone enormous growth in the last

decades. Since the time of the first scientific satellite, launched by the Soviet
Union in 1957 which transmitted only one signal, we are currently witnessing a
true scramble for orbital positions and frequencies for different types of
satellites and services by many satellite operators. Satellite activities affect our
daily lives more than most people probably realise. Whether it is through the
television we watch, the telephone calls we make, the aeroplanes we take or
through the weather forecasts we read in the newspapers, satellites have
become part of our daily lives within the last 40 years.
As commercial satellite activities developed, the need for sufficient interna-
tional regulation of these activities grew as well. International regulation has
been put in place throughout the years by various institutions on various levels,
such as the United Nations (UN), the International Telecommunication Union
(ITU), the World Trade Organisation (WTO), the European Union (EU) and
the European Conference of Postal and Telecommunications Administrations
(CEPT).
The purpose of this book is to create a tool for everyone working in the satellite
industry by assembling all the legal texts and materials relating to commercial
satellite activities which affect the way of doing business in this particular
sector.
Not all legal texts related to space activities issued by the above-mentioned
organisations are included in this book. Texts which are primarily aimed at
regulating the conduct of sovereign States in outer space have been omitted.
Rather, we have focussed on those legal texts which influence the way
commercial satellite activities are carried out by private entities in Europe.
Although most of the legal texts in this book are international instruments
addressed to sovereign States, their impact is felt in the private sector as States
are bound by their contents as soon as they are signed and/or integrated in
national laws. The national laws, which should reflect the provisions laid down
in these international instruments, have not been included. We considered that
including all the different national laws would go beyond the scope of this
book.
We have divided the book into four chapters which cover the four types of
satellite activities carried out on a commercial basis :
XV
xvi Introduction
- Telecommunications (Chapter 1)
_ Broadcasting (Chapter 2)
- Remote Sensing (Chapter 3)
- Global Navigation Satellite Systems (Chapter 4)
Since telecommunication quickly became the most important commercial
application for satellites, the largest part of the regulation so far established
has focussed on satellite communications. At the European level, the EU has
taken a particular interest in the telecommunications sector. Numerous
Directives, Resolutions and Decisions are aimed at liberalising and harmonis-
ing the European telecommunication market and some of them are aimed
specifically at the satellite sector. We have selected for this work only the most
important texts which affect satellite communications and those texts which are
specifically relevant to satellites.
The CEPT, an organisation in which the postal and telecommunications
administrations of 43 European countries are represented, has also issued a
large number of texts which aim at harmonising the European telecommunica-
tion market. Although the CEPT’s Decisions and Recommendations are not
legally binding, they do have a significant relevance for the European tele-
communication market, since they are established by consensus between its
Members. A selection of those texts directly affecting the satellite industry has
been reproduced.
The ITU and the WTO have also contributed to the establishment of a legal
framework for telecommunications. Since telecommunications has become a
large global industry, regulation was not only needed on a national or regional
level, but also on a global level for which organisations such as the ITU and the
WTO, of which nearly all States in the world are a member, created an excellent
forum. The WTO has established a market access mechanism for telecommu-
nications within the framework of the General Agreement on Trade in Services.
The most relevant texts are reproduced herein. The ITU plays an essential role
in the satellite telecommunications sector and we have made a selection of
those ITU Documents which are aimed specifically at this sector.
Television broadcasting via satellite has also seen a tremendous growth in the
recent years and has also not escaped the attention of the European Commis-
sion. Regulation has been implemented which has facilitated the provision of
television services in Europe significantly.
Although telecommunications and broadcasting represent by far the largest

part of commercial satellite activities, other applications have also evolved
from mainly scientific or military applications into commercial ones, such as
remote sensing and GNSS. Although the commercial significance of these
applications is still relatively modest, important developments have taken or
are taking place.
Introduction xvii
Weather forecasting is carried out on a commercial basis, as well as other

commercial activities for which remote sensing data are an extremely useful
tools, such as crop monitoring and soil management. GNSS is used on a large
scale in the transportation industry. The legal texts and materials related to
these satellite applications have been included as well in this publication.
I would like to thank my associates, Mr Rafaél Roelandt who has assisted me

with putting together this book, as well as Mr Tare Charles Brisibe and Mr
Alexandre Metzger who have contributed significantly to the preparatory
work. Finally, I wish to thank all those who have provided me with their
valuable assistance and expertise in the satellite industry. Without them it
would not have been possible to complete this book.
We hope to have created a useful tool for all those working in the satellite
industry.
Luxembourg,
Stéphan Le Gouéff
June 2000
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1. Telecommunications
1.1. EUROPEAN UNION
1.1.1. General Telecommunications Documents
COUNCIL DIRECTIVE OF 24 JULY 1986 ON THE INITIAL STAGE OF THE MUTUAL

RECOGNITION OF TYPE APPROVAL FOR TELECOMMUNICATIONS TERMINAL
EQUIPMENT (86/361/EEC)
Official Journal No. L217/21, 05.08.86
THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community,
and in particular Article 100 thereof,
Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament [1]
Having regard to the opinion of the Economic and Social Committee [2]
Whereas the mutual recognition of type approval for telecommunications

terminal equipment features in the Commission communication to the Council
of 18 May 1984 on telecommunications, in the Council recommendations of 12
November 1984 concerning the implementation of harmonization in the field
of telecommunications and the first phase of opening up access to public
telecommunications contracts, and in the Council conclusions of 17 December
1984 concerning a Community telecommunications policy;
Whereas the market in telecommunications terminal equipment and use of the

full potential of the new telecommunications services are of considerable
importance for the economic development of the Community;
Whereas it is absolutely essential to establish or consolidate a specifically

European industrial potential in the technologies concerned;
Whereas it is highly desirable to make rapid progress towards establishing a
common market in this sector, in particular in order to offer the industry an
improved base for its operations and to facilitate the adoption of a joint
position with respect to third countries;
3
4 Telecommunications
Whereas the mutual recognition of type approval for telecommunications

terminal equipment constitutes a major step towards the creation of an open
and unified market for such equipment;
Whereas, since situations differ and technical and administrative constraints
exist in the Member States, progress towards this objective should be made in
stages;
Whereas in particular the mutual recognition of conformity tests on mass-
produced terminal equipment should constitute an initial stage of the mutual
recognition of type approval for such equipment;
Whereas such an approach must be based on the definition of common
technical specifications based on international standards and specifications
and on the harmonization of general technical requirements for testing,
measuring and approval procedures in the areas of telecommunications and
information technology;
Whereas a general standardization programme is being implemented in the
field of information technology in compliance with the Standards Code of the
General Agreement on Tariffs and Trade (GATT);
Whereas there is a need for a more comprehensive framework to be drawn up
in preparation for a second stage which would create an open and unified
market in telecommunications terminal equipment, bearing in mind that for
telecommunications this has to include both the free movement of equipment
and unimpeded connection to networks, in accordance with the harmonized
requirements;
Whereas Council Directive 73/23/EEC of 19 February 1973 on the harmoni-
zation of the laws of the Member States relating to electrical equipment
designed for use within certain voltage limits [3] and Council Directive 83/
189/EEC of 28 March 1983 laying down a procedure for the provision of
information in the field of technical standards and regulations [4] are applic-
able, inter alia, to the fields of telecommunications and information technol-
ogy;
Whereas the Memorandum of Understanding between the European Con-
ference of Postal and Telecommunications Administrations (CEPT) and the
Commission concerning standards and type approval for telecommunications
equipment and the general guidelines agreed with the Joint European Stan-
dards Institution CEN-CENELEC henceforth make it possible to entrust
specialized technical harmonization work to those bodies:
Whereas the mechanism introduced by certain CEPT administrations, includ-
ing those of the Community Member States, under the agreement drawn up at
Copenhagen on 15 November 1985, incorporates a formal adoption procedure
and an undertaking to implement certain CEPT recommendations, which are
then designated as ‘NETS’ (Normes européennes de télecommunications);
BO/S01/BEC 5
Whereas it is necessary to set up a Committee, with the task of assisting the

Commission in implementing this Directive and in progressively implementing
the mutual recognition of type approval for terminal equipment,
HAS ADOPTED THIS DIRECTIVE:

Article 1
The Member States shall implement the mutual recognition of the results of
tests of conformity with common conformity specifications for mass-produced
telecommunications terminal equipment in accordance with the detailed rules
set out in this Directive.
Article 2
For the purposes of this Directive:
1. ‘telecommunications administrations’ means the administrations or pri-

vate operating agencies recognized in the Community and providing
public telecommunications services;
2. ‘terminal equipment’ means equipment directly or indirectly connected to
the termination of a public telecommunications network to send, process
or receive information;
3. ‘technical specification’ means a specification contained in a document
which lays down the characteristics required of a product such as levels of
quality, performance, safety or dimensions, including the requirements
applicable to the product as regards terminology, symbols, testing and
test methods, packaging, marking and labelling;
4. ‘international technical specification in telecommunications’ means the
technical specification of all or some characteristics of a product,
recommended by such organizations as the Comite international telé-
graphique et telephonique (CCITT) or the CEPT;
5. ‘common technical specification’ means a technical specification drawn
up with a view to uniform application in all Member States of the
Community;
6. ‘standard’ means a technical specification adopted by a recognized
standards body for repeated or continuous application, compliance with
which is not compulsory;
7. ‘international standard’ means a standard adopted by a recognized
international standards body;
8. ‘approved testing laboratory’ means a laboratory the conformity of which
with the accreditation system established by the CEPT in close coopera-
tion with specialized organizations and any relevant national accredita-
tion organizations has been verified, with particular reference to the
relevant ISO guides, by the appropriate Member State or a body
recognized as competent by that State and which is approved by that
Member State or body recognized as competent for conducting con-
formity tests on terminal equipment;
‘certificate of conformity’ means the document certifying that a product

or service conforms to given standards or technical specifications;
10. ‘type approval of terminal equipment’ means the confirmation delivered
by the competent authority of a Member State that a particular terminal
equipment type is authorized or recognized as suitable to be connected to
a particular public telecommunications network;
ie ‘conformity specification’ means a document giving a precise and full
description of the technical characteristics of the relevant terminal
equipment (such as safety, technical parameters, functions and proce-
dures and service requirements) together with a precise definition of the
tests and test methods enabling the conformity of the terminal equipment
with the prescribed technical characteristics to be verified;
12. ‘type approval specification’ means a specification setting out the full and
precise requirements that must be satisfied by terminal equipment to be
granted type approval. It includes the conformity specification and also
administrative requirements and, where appropriate, requirements con-
cerning quality control operations to be carried out during the manufac-
ture of the equipment;
ise ‘common conformity specification’ means a conformity specification used
in all the Community Member States by the authority competent for
testing the conformity of terminal equipment. It also includes, where
appropriate, requirements made necessary in a given State by historical
network peculiarities or established national provisions concerning the
use of radio frequencies;
‘common type approval specification’ means a type approval specification
which is used in all the Community Member States by all the authorities
empowered to grant type approval for terminal equipment. It includes the
common conformity specification and also administrative requirements
and, where appropriate, requirements concerning quality control opera-
tions to be carried out during the manufacture of the equipment;
1S: ‘NET’ (Norme européenne de télecommunications) is an approved
technical specification recommendation of the CEPT or part or parts
thereof which the signatories of the Memorandum of Understanding,
established at the meeting of Directors-General of CEPT Administra-
tions, in Copenhagen on 15 November 1985, adopted in accordance with
the procedures set down in that Memorandum;
16. ‘mutual recognition of the results of conformity tests on terminal
equipment’ means a situation where, when an approved laboratory or
the competent authority in a Member State issues a certificate, accom-
panied by test data and identification details, stating that a terminal is in
conformity with a common conformity specification or a part thereof,
that certificate is recognized in the other Member States, so that if the
terminal in question is the subject of an application for type approval in
another Member State, it no longer has to be subjected to the tests for
verifying conformity with that specification, or with the part of that
S6/3601/EEC FF
specification concerning the tests carried out;

ye ‘essential requirements’ means those aspects of common conformity
specifications of such importance as to necessitate compliance as a
matter of legal obligation for the implementation of the mutual recogni-
tion of the results of conformity tests on terminal equipment as an
integral part of the type approval procedure. These essential requirements
are at present:
— user safety in so far as this requirement is not covered by Directive

73/23/EEC,
— safety of employees of public telecommunications network opera-
tors in so far as this requirement is not covered by Directive 73/23/
EEG;
— protection of public telecommunications networks from harm,
— interworking of terminal equipment, in justified cases.
Article 3
The Council, acting in accordance with the rules of the Treaty on a proposal
from the Commission, shall supplement as necessary the list of essential
requirements and shall make them more specific where necessary for certain
products.
Article 4
The Commission shall:
l. draw up each year, after consulting the Committee referred to in Article 5
and with due regard to the general programme of standardization in the
information technology sector:
- a list of international standards and international technical specifi-
cations in telecommunications to be harmonized,
~ a list of terminal equipment for which common conformity specifi-
cations should be drafted as a matter of priority, on the basis above
all of the essential requirements,
= a timetable for this work;
request the CEPT to draw up the common conformity specifications in

the form of NETs, within the specified time limits; in so doing the latter
shall, when appropriate, consult other specialized standardization orga-
nizations such as the European Committee for Standardization (CEN)
and the European Committee for Electrotechnical Standardization
(CENELEC).
Article 5
1. In carrying out the tasks referred to in Article 4, the Commission shall be
assisted by a Committee, which shall be the Working Party of Senior
Officials on Telecommunications. The members of the Committee may be
assisted by experts or advisers according to the nature of the question
Telecommunications
under discussion. The Committee shall be chaired by a Commission

representative.
Apart from the cases listed in this Directive, the Commission shall
consult the Committee on:
(a) the broad objectives and the future needs of the telecommunications
standardization policy;
(b) problems raised by the approval of testing laboratories, and in
particular the accreditation system referred to in Article 2 (8) and
any amendment to that system which may appear necessary;
(c) the effect of technological progress on specification work already
under way and the possible need to give a new or revised mandate to
the CEPT. At the request of its Chairman or of a Member State, the
Committee may consider any question relating to the implementa-
tion of this Directive.
She The Committee shall adopt its own rules of procedure.
4. The Secretariat of the Committee shall be provided by the Commission.
Article 6
M For the purposes of this Directive, a ‘NET’ shall be regarded as the
equivalent of the common conformity specification. Reference to NETs
shall be published in the Official Journal of the European Communities.
Without prejudice to the cases referred to in Article 8, the competent
authorities of the Member States shall not have any further tests carried
out in respect of a particular type of terminal equipment where results of
tests carried out in accordance with Article 7 have given rise to the issue
of a certificate of conformity with the relevant common conformity
specification, the references to which are published in the Official Journal
of the European Communities. Such certificate of conformity shall be
recognized for the purposes of type approval of the terminal equipment in
question.
The common conformity specifications shall be used in all Member
States by the competent authorities for any verification demanded for
type approval purposes of the relevant terminal equipment. The proce-
dure for exceptions referred to in Article 7 (4) may also be applied by the
competent authorities of the Member States in respect fo the first
subparagraph.
Article 7
Li Member States shall inform the Commission of the authority or autho-
rities competent in their territory to issue type approval for terminal
equipment. The Commission shall publish a list of these authorities in the
Official Journal of the European Communities.
Member States shall send the Commission a list of the laboratories which
they have approved, or which have been approved by bodies recognized
by them as competent, for the purpose of verifying the conformity of
SO/SOL/BEC 19
terminal equipment with the common conformity specifications. They

shall regularly submit a report on the activities of these laboratories in the
field covered by this Directive. Such lists and reports shall be transmitted
to the Committee referred to in Article 5 for information.
For the purposes of Article 6, the certificate of conformity issued by the
approved laboratory which has carried out the tests must be accompa-
nied by the data obtained from the measurements performed during the
conformity tests, all the information necessary for precise identification
of the terminal equipment on which the tests were made and a precise
indication of the common conformity specification, or part thereof, used
for the tests.
Member States shall ensure that telecommunications administrations use
common conformity specifications when purchasing terminal equipment
covered by such specifications except in the following cases:
(a) where the equipment is to replace equipment connected to the
network before the adoption of common conformity specification
and is to the same technical specification as the equipment it
replaces, or where, during any transition period between two
systems, which is accepted as necessary and which is defined within
the NET, a Member State needs to add a limited number of pieces
of equipment complying with the specification of the first system. In
both cases, the Commission shall be informed when such a waiver is
invoked and kept informed of the number of pieces of equipment
involved; this information shall be given to the Committee referred
to in Article 5;
(b) where a careful consultation of the market — i.e. including the
publication of a call for declarations of interest in the Official
Journal of the European Communities — shows there is no offer at
economically acceptable conditions for such terminal equipment
complying with those common conformity specifications. In this
case, on the basis of an unavoidable need, a Member State may, for
a limited period of time, apply only a part of the characteristics set
out in the common conformity specifications. The Member State
shall inform the Commission immediately and also state what
departures from the common conformity specification it intends to
permit. The Commission shall consult the Committee referred to in
Article 5 as a matter of urgency and may request the CEPT to revise
the particular common conformity specification. In addition, the
Committee shall review the situation at least every six months
during the period when this waiver is applied.
In the event that a request for revision is not made to the CEPT then
his waiver shall cease when another Member State presents evi-
dence to the Committee that terminal equipment conforming to
that common conformity specification has been connected to its
public telecommunication networks on a normal commercial basis.

However, a Member State may have the waiver extended provided
that the Commission, on the advice of the Committee referred to in
Article 5, agrees that the technical and economic conditions are
sufficiently different in the two Member States as to warrant such an
extension.
De The Member States shall consult within the Committee referred to in
Article 5, so as to create conditions of fair competition for carrying out
the same series of conformity tests in all the approved laboratories.
Article &
Li A Member State may, after examining the common conformity specifica-
tion and the test results, suspend recognition of a certificate of conformity
issued for the purpose of type approval:
(a) if it discovers shortcomings regarding the application of the
common conformity specification;
(b) if it discovers that the common conformity specification itself fails
to meet the essential requirements which it is supposed to cover. If it
exercises this option, the Member State concerned shall immedi-
ately inform the Commission and the other Member States, stating
the reasons for its decision.
Where the decision of the Member State concerns the electrcal safety of
users of terminal equipment, the procedures set out in Article 9 of
Directive 73/23/EEC shall apply.
If the reasons given for the Member State’s decision are as described in
paragraph | (a), the Commission shall immediately consult the Member
States concerned. If no agreement is reached without four weeks, the
Commission shall seek the opinion of one of the approved laboratories
notified in accordance with Article 7 which is based outside the territory
of the Member States concerned. The Commission shall communicate
the opinion of this laboratory to all the Member States, which may
submit their comments to it within a period of one month.
After taking note of any such comments the Commission shall, if
necessary, formulate appropriate recommendations or opinions.
If in preparing its opinion a laboratory consulted unavoidably incurs
expenditure, which may if necessary include additional tests, the Com-
mission will defray that expenditure on production of documentary
evidence. If, however, further to an opinion a decision to suspend
recognition of a certificate of conformity is not maintained, the Member
State which took it shall reimburse the Commission, in accordance with
the procedures for payment then negotiated with the Member State.
If the reasons invoked in support of the Member State’s decision are as
described in paragraph | (b), the Commission shall refer the matter to the
Committee referred to in Article 5, which shall express its opinion as a
66/3017 EEC Al
matter of urgency. On the basis of that opinion the Commission shall

decide whether or not to withdraw the common specification in question
from the list published in the Official Journal of the European Commu-
nities. If it withdraws the specification, the Commission shall inform the
CEPT and may entrust it with a further brief.
5. Ifa Member State considers that terminal equipment which has already
been approved does not meet one or more of the essential requirements, it
may revoke the type approval granted and shall in that case immediately
apply the procedures set out in paragraphs | and 2.
Article 9
The Commission shall examine the detailed rules for the second stage of the
establishment of a market in telecommunications terminal equipment without
internal frontiers covering, in particular, the implementation of mutual
recognition of type approval for terminal equipment. To this end it shall submit
proposals to the Council within a period of two years following the implemen-
tation of this Directive.
Article 10
This Directive shall not prejudice the application of Directive 83/189/EEC.
Article 11
le Member States shall introduce the measures necessary to comply with
this Directive within a period of not more than one year following
adoption thereof. It shall forthwith inform the Commission thereof.
DA Member States shall ensure that the Commission is informed of the main
provisions of national law which they adopt in the field governed by this
Directive.
Article 12
This Directive is adressed to the Member States.
Official Journal No. L217/21, 05.08.86
Done at Brussels, 24 July 1986.

For the Council
The President
A. CLARK
(1) OJ No:G 36; 17-2. 1986,p. 55.

(2) OJ Noi C303) 25; Mia l9son ps2
(3) OU No W737 262301973, pr 29:
(4) OJ No L 109, 26. 4. 1983, p. 8.
COMMISSION DIRECTIVE OF 16 MAY 1988 ON COMPETITION IN THE MARKETS IN
TELECOMMUNICATIONS TERMINAL EQUIPMENT (88/301 /EEC)
(Published in the Official Journal. Only the published text is authentic:

Official Journal No. L 131, 27.5.1988, P.73)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,

and in particular Article 90 (3) thereof,
Whereas:
1. In all the Member States, telecommunications are, either wholly or partly,

a State monopoly generally granted in the form of special or exclusive rights to
one or more bodies responsible for providing and operating the network
infrastructure and related services. Those rights, however, often go beyond the
provision of network utilization services and extend to the supply of user
terminal equipment for connection to the network. The last decades have seen
considerable technical developments in networks, and the pace of development
has been especially striking in the area of terminal equipment.
2. Several Member States have, in response to technical and economic
developments, reviewed their grant of special or exclusive rights in the
telecommunications sector. The proliferation of types of terminal equipment
and the possibility of the multiple use of terminals means that users must be
allowed a free choice between the various types of equipment available if they
are to benefit fully from the technological advances made in the sector.
3. Article 30 of the Treaty prohibits quantitative restrictions on imports from
other Member States and all measures having equivalent effect. The grant of
special or exclusive rights to import and market goods to one organization can,
and often does, lead to restrictions on imports from other Member States.
4. Article 37 of the Treaty states that ‘Member States shall progressively

adjust any State monopolies of a commercial character so as to ensure that
when the transitional period has ended no discrimination regarding the
conditions. under which goods are procured and marketed exists between
nationals of Member States. The provisions of this Article shall apply to any
body through which a Member State, in law or in fact, either directly or
indirectly supervises, determines or appreciably influences imports or exports
between Member States. These provisions shall likewise apply to monopolies
delegated by the State to others.” Paragraph 2 of Article 37 prohibits Member
States from introducing any new measure contrary to the principles laid down
in Article 37 (1).
5. The special or exclusive rights relating to terminal equipment enjoyed by

national telecommunications monopolies are exercised in such a way as, in
practice, to disadvantage equipment from other Member States, notably by
12
preventing users from freely choosing the equipment that best suits their needs
in terms of price and quality, regardless of its origin. The exercise of these rights
is therefore not compatible with Article 37 in all the Member States except
Spain and Portugal, where the national monopolies are to be adjusted
progressively before the end of the transitional period provided for by the Act
of Accession.
6. The provision of installation and maintenance services is a key factor in

the purchasing or rental of terminal equipment. The retention of exclusive
rights in this field would be tantamount to retention of exclusive marketing
rights. Such rights must therefore also be abolished if the abolition of exclusive
importing and marketing rights is to have any practical effect.
7. Article 59 of the Treaty provides that ‘restrictions on freedom to provide
services within the Community shall be progressively abolished during the
transitional period in respect of nationals of Member States who are estab-
lished in a State of the Community other than that of the person for whom the
services are intended.” Maintenance of terminals is a service within the meaning
of Article 60 of the Treaty. As the transitional period has ended, the service in
question, which cannot from a commercial point of view be dissociated from
the marketing of the terminals, must be provided freely and in particular when
provided by qualified operators.
8. Article 90 (1) of the Treaty provides that ‘in the case of public undertakings
and undertakings to which Member States grant special or exclusive rights,
Member States shall neither enact nor maintain in force any measure contrary
to the rules contained in this Treaty, in particular to those rules provided for in
Article 7 and Articles 85 to 94/
9. The market in terminal equipment is still as a rule governed by a system

which allows competition in the common market to be distorted; this situation
continues to produce infringements of the competition rules laid down by the
Treaty and to affect adversely the development of trade to such an extent as
would be contrary to the interests of the Community. Stronger competition in
the terminal equipment market requires the introduction of transparent
technical specifications and typeapproval procedures which meet the essential
requirements mentioned in Council Directive 86/361/EEC [1] and allow the
free movement of terminal equipment. In turn, such transparency necessarily
entails the publication of technical specifications and type approval proce-
dures. To ensure that the latter are applied transparently, objectively and
without discrimination, the drawingup and application of such rules should
be entrusted to bodies independent of competitors in the market in question. It
is essential that the specifications and typeapproval procedures are published
simultaneously and in an orderly fashion. Simultaneous publication will also
ensure that behaviour contrary to the Treaty is avoided. Such simultaneous,
orderly publication can be achieved only by means of a legal instrument that is
88/301/EEC 14
binding on all the Member States. The most appropriate instrument to this end
is a directive.
10. The Treaty entrusts the Commission with very clear tasks and gives it
specific powers with regard to the monitoring of relations between the Member
States and their public undertakings and enterprises to which they have
delegated special or exclusive rights, in particular as regards the elimination
of quantitative restrictions and measures having equivalent effect, discrimina-
tion between nationals of Member States, and competition. The only instru-
ment, therefore, by which the Commission can efficiently carry out the tasks
and powers assigned to it, is a Directive based on Article 90 (3).
11. Telecommunications bodies or enterprises are undertakings within the

meaning of Article 90 (1) because they carry on an organized business activity
involving the production of goods or services. They are either public under-
takings or private enterprises to which the Member States have granted special
or exclusive rights for the importation, marketing, connection, bringing into
service of telecommunications terminal equipment and/or maintenance of
such equipment. The grant and maintenance of special and exclusive rights for
terminal equipment constitute measures within the meaning of that Article.
The conditions for applying the exception of Article 90 (2) are not fulfilled.
Even if the provision of a telecommunications network for the use of the
general public is a service of general economic interest entrusted by the State to
the telecommunications bodies, the abolition of their special or exclusive rights
to import and market terminal equipment would not obstruct, in law or in fact,
the performance of that service. This is all the more true given that Member
States are entitled to subject terminal equipment to typeapproval procedures to
ensure that they conform to the essential requirements.
12. Article 86 of the Treaty prohibits as incompatible with the common

market any conduct by one or more undertakings that involves an abuse of a
dominant position within the common market or a substantial part of it.
13. The telecommunications bodies hold individually or jointly a monopoly
on their national telecommunications network. The national networks are
markets. Therefore, the bodies each individually or jointly hold a dominant
position in a substantial part of the market in question within the meaning of
Article 86. The effect of the special or exclusive rights granted to such bodies by
the State to import and market terminal equipment is to:
— restrict users to renting such equipment, when it would often be cheaper for
them, at least in the long term, to purchase this equipment. This effectively
makes contracts for the use of networks subject to acceptance by the user of
additional services which have no connection with the subject of the contracts,
— limit outlets and impede technical progress since the range of equipment
offered by the telecommunications bodies is necessarily limited and will not be
the best available to meet the requirements of a significant proportion of users.
15 TYelecommunications
Such conduct is expressly prohibited by Article 86 (d) and (b), and is likely
significantly to affect trade between Member States.
At all events, such special or exclusive rights in regard to the terminal
equipment market give rise to a situation which is contrary to the objective of
Article 3 (f) of the Treaty, which provides for the institution of a system
ensuring that competition in the common market is not distorted, and requires
a fortiori that competition must not be eliminated. Member States have an
obligation under Article 5 of the Treaty to abstain from any measure which
could jeopardize the attainment of the objectives of the Treaty, including
Article 3 (f). The exclusive rights to import and market terminal equipment
must therefore be regarded as incompatible with Article 86 in conjunction with
Article 3, and the grant or maintenance of such rights by a Member State is
prohibited under Article 90 (1).
14. To enable users to have access to the terminal equipment of their choice, it
is necessary to know and make transparent the characteristics of the termina-
tion points of the network to which the terminal equipment is to be connected.
Member States must therefore ensure that the characteristics are published and
that users have access to termination points.
15. To be able to market their products, manufacturers of terminal equipment
must know what technical specifications they must satisfy. Member States
should therefore formalize and publish the specifications and typeapproval
rules, which they must notify to the Commission in draft form, in accordance
with Council Directive 83/189/EEC [2]. The specifications may be extended to
products imported from other Member States only insofar as they are
necessary to ensure conformity with the essential requirements specified in
Article 2 (17) of Directive 86/361/EEC that can legitimately be required under
Community law. Member States must, in any event, comply with Articles 30
and 36 of the Treaty, under which an importing Member State must allow
terminal equipment legally manufactured and marketed in another Member
State to be imported on to its territory, and may only subject it to such type
approval and possibly refuse approval for reasons concerning conformity with
the abovementioned essential requirements.
16. The immediate publication of these specifications and procedures cannot
be considered in view of their complexity. On the other hand, effective
competition is not possible without such publication, since potential competi-
tors of the bodies or enterprises with special or exclusive rights are unaware of
the precise specifications with which their terminal equipment must comply
and of the terms of the typeapproval procedures and hence their cost and
duration. A deadline should therefore be set for the publication of specifica-
tions and the typeapproval procedures. A period of twoandahalf years will also
enable the telecommunications bodies with special or exclusive rights to adjust
to the new market conditions and will enable economic operators, especially
88/301/EEC 16
small and mediumsized enterprises, to adapt to the new competitive environ-

ment.
17. Monitoring of typeapproval specifications and rules cannot be entrusted
to a competitor in the terminal equipment market in view of the obvious
conflict of interest. Member States should therefore ensure that the responsi-
bility for drawing up typeapproval specifications and rules is assigned to a body
independent of the operator of the network and of any other competitor in the
market for terminals.
18. The holders of special or exclusive rights in the terminal equipment in
question have been able to impose on their customers longterm contracts
preventing the introduction of free competition from having a practical effect
within a reasonable period. Users must therefore be given the right to obtain a
revision of the duration of their contracts,

Article 1
‘terminal equipment’ means equipment directly or indirectly connected to the
termination of a public telecommunications network to send, process or
receive information. A connection is indirect if equipment is placed between
the terminal and the termination of the network. In either case (direct or
indirect), the connection may be made by wire, optical fibre or electromagne-
tically.
Terminal equipment also means receiveonly satellite stations not reconnected
to the public network of a Member State,
‘undertaking’ means a public or private body, to which a Member State grants
special or exclusive rights for the importation, marketing, connection, bringing
into service of telecommunications terminal equipment and/or maintenance of
such equipment.
Article2
Member States which have granted special or exclusive rights within the
meaning of Article 1 to undertakings shall ensure that those rights are
withdrawn. They shall, not later than three months following the notification
of this Directive, inform the Commission of the measures taken or draft
legislation introduced to that end.
Article 3
Member States shall ensure that economic operators have the right to import,
market, connect, bring into service and maintain terminal equipment. How-
ever, Member States may:
- in the absence of technical specifications, refuse to allow terminal

equipment to be connected and brought into service where such equip-

ment does not, according to a reasoned opinion of the body referred to in
Article 6, satisfy the essential requirements laid down in Article 2 (17) of
Directive 86/361/EEC,
— require economic operators to possess the technical qualifications needed
to connect, bring into service and maintain terminal equipment on the
basis of objective, nondiscriminatory and publicly available criteria.
Article 4
Member States shall ensure that users have access to new public network
termination points and that the physical characteristics of these points are
published not later than 31 December 1988.
Access to public network termination points existing at 31 December 1988

shall be given within a reasonable period to any user who so requests.
Article 5
1. Member States shall, not later than the date mentioned in Article 2,
communicate to the Commission a list of all technical specifications and
typeapproval procedures which are used for terminal equipment, and
shall provide the publication references. Where they have not as yet been
published in a Member State, the latter shall ensure that they are
published not later than the dates referred to in Article 8.
2. Member States shall ensure that all other specifications and typeapproval
procedures for terminal equipment are formalized and published. Mem-
ber States shall communicate the technical specifications and type-
approval procedures in draft form to the Commission in accordance
with Directive 83/189/EEC and according to the timetable set out in
Article 8.
Article 6
Member States shall ensure that, from 1 July 1989, responsibility for drawing
up the specifications referred to in Article 5, monitoring their application and
granting typeapproval is entrusted to a body independent of public or private
undertakings offering goods and/or services in the telecommunications sector.
Article 7
Member States shall take the necessary steps to ensure that undertakings
within the meaning of Article 1 make it possible for their customers to
terminate, with maximum notice of one year, leasing or maintenance contracts
which concern terminal equipment subject to exclusive or special rights at the
time of the conclusion of the contracts. For terminal equipment requiring
typeapproval, Member States shall ensure that this possibility of termination is
afforded by the undertakings in question no later than the dates provided for in
Article 8. For terminal equipment not requiring typeapproval, Member States
shall introduce this possibility no later than the date provided for in Article 2.
88/301/EEC 18
Article 8
Member States shall inform the Commission of the draft technical specifica-
tions and typeapproval procedures referred to in Article 5 (2);
not later than 31 December 1988 in respect of equipment in category A of the
list in Annex I,
not later than 30 September 1989 in respect of equipment in category B of the
list in Annex I,
not later than 30 June 1990 in respect of other terminal equipment in category
C of the list in Annex I. Member States shall bring these specifications and
typeapproval procedures into force after expiry of the procedure provided for
by Directive 83/189/EEC.
Article 9
Member States shall provide the Commission at the end of each year with a
report allowing it to monitor compliance with the provisions of Articles 2, 3, 4,
6 and 7. An outline of the report is attached as Annex II.
Article 10
The provisions of this Directive shall be without prejudice to the provisions of
the instruments of accession of Spain and Portugal, and in particular Articles
48 and 208 of the Act of Accession.
Article 11
This Directive is addressed to the Member States.
(Published in the Official Journal. Only the published text is authentic:

Official Journal No. L 131, 27.5.1988, P.73)
Done at Brussels, 16 May 1988.
For the Commission
Peter SUTHERLAND
Member of the Commission
(1) OJ No 1217,,5..8. 1986, po21.

(2) OJ NoL 109, 28. 3. 1983, p. 8.
ANNEX I
List of terminal equipment referred to in Article 8
Additional telephone set; private automatic branch exchanges (PABXs):

Category A
Modems: Category A
Telex terminals: Category B
Datatransmission terminals: Category B
Mobile telephones: Category B
Receiveonly satellite stations not reconnected to the public network of a

Member State: Category B First telephone set: Category C
Other terminal equipment: Category C
ANNEX II
Outline of the report provided for in Article 9
Implementation of Article 2
1. Terminal equipement for which legislation is being or has been modified.

By category of terminal equipment:
date of adoption of the measure or,
date of introduction of the bill or,
date of entry into force of the measure.
2. Terminal equipment still subject to special or exclusive rights:

type of terminal equipment and rights concerned.
terminal equipment, the connection and/or commissioning of which has been
restricted,
technical qualifications required, giving reference of their publication.
references of publications in which the physical characteristics are specified,

number of existing network termination points,
number of network termination points now accessible.
independent body or bodies appointed.
measures put into force, and
number of terminated contracts.
CoUNCIL DIRECTIVE OF 28 JUNE 1990 ON THE ESTABLISHMENT OF THE
INTERNAL MARKET FOR TELECOMMUNICATIONS SERVICES THROUGH THE
IMPLEMENTATION OF OPEN NETWORK PROVISION (90/387/EEC)
Official Journal No. L 192 , 24/07/1990 P. 0001 — 0009
Incorporated by 294A0103(61) (OJ L 001 03.01.94 p. 418)
Amended by 397L0051 (OJ L 295 29.10.97 p. 23)

and in particular Article 100a thereof,
Having regard to the proposal from the Commission [1],
In cooperation with the European Parliament [2], :
Having regard to the opinion of the Economic and Social Committee [3],
Whereas Article 8a of the Treaty stipulates that the internal market shall
comprise an area without internal frontiers in which the free movement of
services is ensured, in accordance with the provisions of the Treaty;
Whereas the Commission submitted a Green Paper on the development of the

common market for telecommunications services and equipment, dated 30
June 1987, and a communication on the implementation of that Green Paper
up to 1992, dated 9 February 1988;
Whereas the Council adopted on 30 June 1988 a resolution on the development

of the common market for telecommunications services and equipment up to
1992 [4];
Whereas the full establishment of a Community-wide market in telecommuni-
cations services will be promoted by the rapid introduction of harmonized
principles and conditions for open network provision;
Whereas, since situations differ and technical and administrative constraints

exist in the Member States, this objective should be realized in stages;
Whereas the conditions of open network provision must be consistent with

certain principles and must not restrict access to networks and services except
for reasons of general public interest, hereinafter referred to as ‘essential
requirements’;
Whereas the definition and application of such principles and essential

requirements must take full account of the fact that any restrictions of the right
to provide services within and between Member States must be objectively
justified, must follow the principle of proportionality and must not be excessive
in relation to the aim pursued;
20
Whereas the conditions of open network provision must not allow for any
additional restrictions on the use of the public telecommunications network
and/or public telecommunications services except those restrictions which may
be derived from the exercise of special or exclusive rights granted by Member
States and which are compatible with Community law;
Whereas tariff principles should be clearly laid down to ensure fair and
transparent conditions for all users;
Whereas this entire Directive must be read in the light of Annex III which lays
down a work programme for the first three years;
Whereas the establishment of harmonized conditions of open network provi-

sion must be a progressive process and must be prepared with the assistance of
a committee composed of representatives of the Member States, which consults
the representatives of the telecommunications organizations, the users, the
consumers, the manufacturers and the service providers; whereas this process
must also be open to all parties concerned and therefore sufficient time must be
given for public comment;
Whereas the Community-wide definition of harmonized technical interfaces

and access conditions must be based on the definition of common technical
specifications based on international standards and specifications;
Whereas work to be undertaken in this area must take full account, inter alia,
of the framework resulting from the provisions of Council Directive 83/189/
EEC of 28 March 1983 laying down a procedure for the provision of
information in the field of technical standards and regulations [5], as last
amended by Directive 88/182/EEC [6], Council Directive 86/361/EEC of 24
July 1986 on the initial stage of the mutual recognition of type approval for
telecommunications terminal equipment [7] and Council Decision 87/95/EEC
of 22 December 1986 on standardization in the field of information technology
and telecommunications [8];
Whereas the formal adoption on 12 February 1988 of the statutes of the
European Telecommunications Standards Institute (ETSI) and of the asso-
ciated internal rules has created a new mechanism for producing European
telecommunications standards;
Whereas the Council in its resolution of 27 April 1989 on standardization in
the field of information technology and telecommunications [9] supported the
work of ETSI and invited the Commission to contribute to the coherent
development of ETSI and lend it its support;
Whereas the Community-wide definition and implementation of harmonized
network termination points establishing the physical interface between the
network infrastructure and users’ and other service providers’ equipment will
be an essential element of the overall concept of open network provision;
90/387/EEC 22
Whereas Commission Directive 88/301/EEC of 16 May 1988 on competition

in the markets in telecommunications terminal equipment [10] requires
Member States to ensure that users who so request are given access to network
termination points within a reasonable time period;
Whereas one of the principal aims of the establishment of an internal market in
telecommunications services must be the creation of conditions to promote the
development of Europe-wide services;
Whereas, in its abovementioned resolution of 30 June 1988, the Council
considered the taking fully into account of the external aspects of Community
measures on telecommunications to be a major policy goal;
Whereas the Community attaches very great importance to the continued
growth of cross-border telecommunications services, to the contribution that
telecommunications services provided by companies, firms or natural persons
established in a/Member State may make to the growth of the Community
market, and to the increased participation of Community service providers in
third country markets; whereas it will therefore be necessary, as specific
Directives are drawn up, to ensure that these objectives are taken into account
with a view to reaching a situation where the progressive realization of the
internal market for telecommunications services will, where appropriate, be
accompanied by reciprocal market opening in other countries;
Whereas this result should be achieved preferably through multilateral negotia-
tions in the framework of GATT, it being understood that bilateral discussions
between the Community and third countries may also contribute to this
process;
Whereas this Directive should not address the problems of mass media,
meaning problems linked to broadcasting and distribution of television
programmes via telecommunications means, in particular cable television
networks, which need special consideration;
Whereas neither should this Directive address the question of communication

via satellite for which, according to the abovementioned Council resolution of
30 June 1988, a common position should be worked out;
Whereas the Council, on the basis of a report which the Commission is to

submit to the European Parliament and the Council, and in accordance with
Article 100b of the Treaty, will review, during 1992, any remaining conditions
for access to telecommunications services which have not been harmonized,
the effects of these conditions on the workings of the internal market for
telecommunications services, and the extent to which this market needs to be
further opened up,

Article 1
kk This Directive concerns the harmonization of conditions for open and
efficient access to and use of public telecommunications networks and,
where applicable, public telecommunications services.
The conditions referred to in paragraph 1 are designed to facilitate the
provision of services using public telecommunications networks and/or
public telecommunications services, within and between Member States,
and in particular the provision of services by companies, firms or natural
persons established in a Member State other than that of the company,
firm or natural person for whom the services are intended.
Article 2
he: ‘telecommunications organizations’ means public or private bodies, to
which a Member State grants special or exclusive rights for the provision
of a public telecommunications network and, where applicable, public
telecommunications services.
For the requirements of this Directive, Member States shall notify the
Commission of the bodies to which they have granted special or exclusive
rights;
‘special or exclusive rights’ means the rights granted by a Member State
or a public authority to one or more public or private bodies through any
legal, regulatory or administrative instrument reserving them the right to
provide a service or undertake an activity;
‘public telecommunications network’ means the public telecommunica-
tions infrastructure which permits the conveyance of signals between
defined network termination points by wire, by microwave, by optical
means or by other electromagnetic means;
— ‘telecommunications services’ means services whose provision con-
sists wholly or partly in the transmission and routing of signals on a
telecommunications network by means of telecommunications
processes, with the exception of radio broadcasting and television;
- ‘public telecommunications services’ means telecommunications
services whose supply Member States have specifically entrusted
inter alia to one or more telecommunications organizations;
Nn ‘network termination point’ means all physical connections and their
technical access specifications which form part of the public telecommu-
nications network and are necessary for access to and efficient commu-
nication through that public network;
‘essential requirements’ means the non-economic reasons in the general
interest which may cause a Member State to restrict access to the public
telecommunications network or public telecommunications services.
These reasons are security of network operations, maintenance of net-
90/387/EEC 24
work integrity and, in justified cases, interoperability of services and data

protection.
Data protection may include protection of personal data, the confidenti-
ality of information transmitted or stored as well as the protection of
privacy;
7. ‘voice telephony’ means the commercial provision for the public or direct
transport of real-time speech via the public switches network or networks
such that any user can use equipment connected to a network termination
point to communicate with another user of equipment connected to
another termination point;
8. ‘telex service’ means the commercial provision for the public of direct
transport of telex messages in accordance with the relevant “Comite
consultatif international telégraphique et telephonique’ (CCITT) recom-
mendation via the public switched network’ or networks, whereby any
user can use equipment connected to a network termination point to
communicate with another user using another termination point;
9. ‘packet- and circuit-switched data services’ means the commercial provi-
sion for the public of direct transport of data via the public switched
network or networks such that any equipment connected to a network
termination point can communicate with equipment connected to an-
other termination point;
10. ‘open network provision conditions’ means the conditions, harmonized
according to the provisions of this Directive, which concern the open and
efficient access to public telecommunications networks and, where
applicable, public telecommunications services and the efficient use of
those networks and services.
Without prejudice to their application on a case-by-case basis, the open
network provision conditions may include harmonized conditions with
regard to:
~ technical interfaces, including the definition and implementation of
network termination points, where required,
- usage conditions, including access to frequencies where required,
_ tariff principles;
11. ‘technical specifications’, ‘standards’ and ‘terminal equipment’ are given
the same meaning for those terms as in Article 2 of Directive 86/361/
BEC.
Article 3
1. Open network provision conditions must comply with a number of basic
principles set out hereafter, namely that:
— they must be based on objective criteria,
~ they must be transparent and published in an appropriate manner,
— they must guarantee equality of access and must be non-discrimi-
natory, in accordance with Community law.
Open network provision conditions must not restrict access to public

telecommunications networks or public telecommunications services,
except for reasons based on essential requirements, within the framework
of Community law, namely:
~ security of network operations,
~ maintenance of network integrity,
- interoperability of services, in justified cases,
- protection of data, as appropriate.
In addition, the conditions generally applicable to the connection of
terminal equipment to the network shall apply.
Open network provision conditions may not allow for any additional
restrictions on the use of the public telecommunications networks and/or
public telecommunications services except the restrictions which may be
derived from, the exercise of special or exclusive rights granted by
Member States and which are compatible with Community law.
The Council, acting in accordance with Article 100a of the Treaty, may, if
necessary, modify the points set out in paragraphs | and 2.
Without prejudice to the specific Directives provided for in Article 6 and
in so far as the application of the essential requirements referred to in
paragraph 2 of this Article may cause a Member State to limit access to
one of its public telecommunications networks or services, the rules for
uniform application of the essential requirements, in particular concern-
ing the interoperability of services and the protection of data, shall be
determined, where appropriate, by the Commission, in accordance with
the procedure laid down in Article 10.
Article 4
Li Open network provision conditions shall be defined in stages under the
procedure set out hereafter.
Ds Open network provision conditions shall concern the areas selected in
accordance with the list in Annex I.
The Council, acting in accordance with Article 100a of the Treaty, may, if
necessary, modify this list.
Using the list referred to in paragraph 2, the Commission shall draw up a
work programme each year, under the procedure laid down in Article 9.
For the work programme referred to in paragraph 3, the Commission
shall:
(a) initiate detailed analysis, in consultation with the committee
referred to in Article 9, and draw up reports on the results of this
analysis;
(b) invite, by publication of a notice to that effect in the Official Journal
of the European Communities, public comment by all parties
concerned on the reports on the detailed analysis provided for in
subparagraph (a). The period for submitting such comment shall be
90/387/EEC 26
not less than three months from the date of publication of the said
notice;
(c) request, where appropriate, the European Telecommunications
Standards Institute (ETSI) to draw up European standards, taking
account of international standardization as a basis for setting up,
where required, within specified time limits, harmonized technical
interfaces and/or service features. In so doing, ETSI shall coordi-
nate, in particular, with the Joint European Standards Institution
CEN/Cenelec;
(d) draw up proposals for open network provision conditions in
accordance with Article 3 and with the open network provision
reference framework described in Annex II.
For 1990, 1991 and 1992 a work programme shall be drawn up in order
to implement the guidelines in Annex III.
Article 5
sla Reference to European standards drawn up as a basis for harmonized
technical interfaces and/or service features for open network provision
according to Article 4 (4) (c) shall be published in the Official Journal of
the European Communities as suitable for open network provision.
The standards mentioned under paragraph | shall carry with them the
presumption:
(a) that a service provider who complies with those standards fulfils the
relevant essential requirements, and
(b) that a telecommunications organization which complies with those
standards fulfils the requirement of open and efficient access.
If the implementation of European standards within the meaning of
Article 5 (2) appears inadequate to ensure the interoperability of
transfrontier services in one or more Member States, reference to
European standards may be made compulsory under the procedure laid
down in Article 10, to the extent strictly necessary to ensure such
interoperability and to improve freedom of choice for users. The
procedure provided for in this paragraph may in no way affect the
implementation of Articles 85 and 86 of the Treaty.
Where a Member State or the Commission considers that the harmo-
nized standards mentioned under paragraph | do not correspond to the
objective of open and efficient access, in particular the basic principles
and the essential requirements referred to in Article 3, the Commission or
the Member State concerned shall bring the matter before the committee
referred to in Article 9, giving the reasons therefore. The committee shall
deliver an opinion without delay.
In the light of the committee’s opinion and after consultation of the
standing committee set up by Directive 83/189/EEC, the Commission
shall inform the Member States whether or not it is necessary to with-
draw references to those standards from the Official Journal of the

European Communities.
Article 6
Following the completion of the procedures set out in Articles 4 and 5, and
acting in accordance with Article 100a of the Treaty, the Council shall adopt
specific Directives establishing open network provision conditions including a
time schedule for implementing them.
Article 7
The Council, acting in accordance with Article 100a of the Treaty, taking
Article 8c of the Treaty into consideration, shall, where required, adopt
measures for harmonizing declaration and/or licensing procedures for the
provision of services via public telecommunications networks, with a view to
establishing conditions in which there would be mutual recognition of declara-
tion and/or licensing procedures.
Article §
During 1992 the Council, on the basis of a report which the Commission shall
submit to the European Parliament and the Council, shall review progess on
harmonization and any restrictions on access to telecommunications networks
and services still remaining, the effects of those restrictions on the operation of
the internal telecommunications market, and measures which could be taken to
remove those restrictions, in conformity with Community law, taking account
of technological development and in accordance with the procedure provided
for under Article 100b of the Treaty.
Article 9
1. |The Commission shall be assisted by a committee of a advisory nature
composed of the representatives of the Member States and chaired by the
representative of the Commission.
The committee shall, in particular, consult the representatives of the
telecommunications organizations, the users, the consumers, the manu-
facturers and the service providers. It shall lay down its rules of
procedure.
2. 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.
90/387/EEC 28
Article 10
i. Notwithstanding the provisions of Article 9, the following procedure
shall apply in respect of the matters covered by Article 3 (5) and Article 5
(3).
The representative of the Commission shall submit to the committee a
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 envisaged if they are in
accordance with the opinion of the committee.
If the measures envisaged are not in accordance with the opinion of the
committee, or if no opinion is delivered, the Commission shall, without
delay, submit to the Council a proposal relating to the measures to be
taken. The Council shall act by a qualified majority.
If on the expiry of a period of three months from the date of referral to
the Council, the Council has not acted, the proposed measures shall be
adopted by the Commission.
Article 11
1; Member States shall bring into force the laws, regulations and adminis-
trative provisions necessary in order to comply with this Directive before
1 January 1991 at the latest. They shall forthwith inform the Commission
thereof.
Member States shall communicate to the Commission the texts of the
Directive.
Article 12
Official Journal No. L 192 , 24/07/1990 P. 0001 — 0009
Done at Luxembourg, 28 June 1990.

For the Council
The President
M. GEOGHEGAN-QUINN
(1) OJ No C 39, 16. 2. 1989, p. 8.

(2) OJ No C 158, 26. 6. 1989, p. 300, OJ No C 149, 18. 6. 1990.
(3) OJ No C 159, 26. 6. 1989, p. 37.
(4) OJ No C 257, 4. 10. 1988. p. 1.(5) OJ No L 109, 26. 4. 1983, p. 8.
(6) OJ No L 81, 26. 3. 1988, p. 75.
(7) OJ No L217, 5. 8. 1986, p. 21.

(8) OJ No L 36, 7. 2. 1987, p. 31.
(9) OJ No C117, 11. 5.1989, p.1.
(10) OJ No L 131, 27. 5. 1988, p. 73.
ANNEX I
Areas for which open network provision conditions may be drawn up in

accordance with Article 4 Areas shall be selected from the following list in
accordance with the procedures laid down in Article 4:
leased lines;
packet- and circuit-switched data services;
Integrated Services Digital Network (ISDN);
voice telephony service;
telex service;
mobile services, as applicable; subject to further study,
artsnew types of access to the network, such as access, under certain
Seu
conditions, to the circuits connecting subscriber premises to the public
network exchange (‘data over voice’) and access to the network’s new
intelligent functions, according to progress on definition and technologi-
cal development;
access to the broadband network, according to progress on definition and
technological development.
ANNEX II
Reference framework for drawing up proposals on open network provision

conditions in accordance with Article 4 (4) (d) Proposals on open network
provision conditions as defined in Article 2 (10) should be drawn up in
accordance with the following reference framework:
L. Common principles
In drawing up the conditions described in this Annex, due account will be
taken of the relevant rules of the Treaty.
Open network provision conditions shall be drawn up in such a way as to
facilitate the service providers’ and users’ freedom of action without
unduly limiting the telecommunications organizations’ responsibility for
the functioning of the network and the best possible condition of
communications channels.
Member States may, in accordance with Community law, take any
measure enabling the telecommunications organizations to develop the
new opportunities deriving from open network provision.
Harmonized technical interfaces and/or service features
90/387/EEC 30
In drawing up open network provision conditions the following scheme

should be taken into account for the definition of technical interfaces at
appropriate open network termination points:
- for existing services and networks, existing interfaces should be
adopted;
= for entirely new services or the improvement of existing services,
existing interfaces should also be adopted, as far as feasible. When
existing interfaces are not suitable, enhancements and/or new
interfaces will have to be specified;
_ for networks that are still to be introduced, but for which the
standardization programme has already commenced, open network
provision requirements falling within the terms of Article 3 should
be taken into account when specifying new interfaces.
Open network provision proposals must, wherever possible, be in line
» with the ongoing work in the European Conference of Postal and
Telecommunications Administrations (CEPT), CCITT, ETSI and CEN-
Cenelec.
Work undertaken in this area shall take full account of the framework
resulting from the provisions of Council Directive 83/189/EEC of 28
March 1983 laying down a procedure for the provision of information in
the field of technical standards and regulations as last amended by
Directive 88/182/EEC, Council Directive 86/361/EEC of 24 July 1986
on the initial stage of the mutual recognition of type approval for
telecommunications terminal equipment and Council Decision 87/95/
EEC of 22 December 1986 on standardization in the field of information
technology and telecommunications.
Additional features will be identified where required. They may be

classified as:
— inclusive if they are provided in association with a specific interface

and included in the standard offering,
- optional if they can be requested as an option with regard to a
specific open network provision offering.
Work shall include the drawing up of proposals for time schedules for the
introduction of interfaces and service features, taking account of the state
of development of telecommunications networks and services in the
Community.
Harmonized supply and usage conditions

Supply and usage conditions shall identify conditions of access and of
provision of services, as far as required.
They may include as applicable:
(a) supply conditions such as:

maximum provision time (delivery period),

quality of service, in particular the quality of transmission,
maintenance,
network malfunction reporting facilities;
(1) OJ No L 109, 26. 4. 1983, p. 8.

(2) OJ No L 81, 26. 3. 1988, p. 75.
(3) OJ No L 217, 5. 8. 1986, p. 21.
(4) OUNOU S62 19875 ps 3
(b) usage conditions such as:

conditions for resale of capacity,
conditions for shared use,
conditions for interconnection with public and private networks.
Usage conditions may include conditions regarding access to frequencies,
as applicable, and measures concerning protection of personal data and
confidentiality of communications, where required.
Harmonized tariff principles
Tariff principles must be consistent with the principles set out in Article 3
(1).
These principles imply, in particular, that:
tariffs must be based on objective criteria and especially in the case
of services and areas subject to special or exclusive rights must in
principle be cost-oriented, on the understanding that the fixing of
the actual tariff level will continue to be the province of national
legislation and is not the subject of open network provision
conditions. When these tariffs are determined, one of the aims
should be the definition of efficient tariff principles throughout the
Community while ensuring a general service for all,
tariffs must be transparent and must be properly published,
in order to leave users a choice between the individual service
elements and where technology so permits, tariffs must be suffi-
ciently unbundled in accordance with the competition rules of the
Treaty. In particular, additional features introduced to provide
certain specific extra services must, as a general rule, be charged
independently of the inclusive features and transportation as such,
tariffs must be non-discriminatory and guarantee equality of treat-
ment.
Any charge for access to network resources or services must comply with
the principles set out above and with the competition rules of the Treaty
and must also take into account the principle of fair sharing in the global
cost of the resources used and the need for a reasonable level of return on
investment.
90/387/EEC 32
There may be different tariffs, in particular to take account of excess

traffic during peak periods and lack of traffic during off-periods, provided
that the tariff differentials are commercially justifiable and do not conflict
with the above principles.
ANNEX III
Guidelines for implementation of the framework Directive up to 31 December

1992 In an initial phase, and without prejudice to the procedures laid down in
Article 4 (2) and (3), work to be undertaken in 1990, 1991 and 1992 concerning
Articles 4, 5 and 6 will implement the following priorities:
L adoption of specific Directives pursuant to Article 6 covering leased lines
and the voice telephony service;
2. implementation by | January 1991 of harmonized technical interfaces
and/or service features for packet-switched data services and ISDN
(Integrated Services Digital Network); reference to such interfaces and
features may be made compulsory before that date in accordance with the
procedure set out in Article 5 (3);
adoption by the Council by 1 July 1991, acting on a proposal from the
Commission, of a recommendation on the supply of technical interfaces,
conditions of usage and tariff principles applying to provision of packet-
switched data services complying with open network principles; this
recommendation would in particular call on Member States to ensure
that at least one such service was provided on their territory;
adoption by the Council by | January 1992, acting on a proposal from
the Commission, of a similar recommendation on ISDN;
examination in 1992, with a view to its adoption, on a proposal from the
Commission, of a specific Directive on packet-switched data services.
That proposal should take into account the initial results of the
implementation of the recommendation referred to in point 3;
subsequent examination of a proposal for a Directive on ISDN. That
proposal should also take into account the initial results of the imple-
mentation of the recommendation referred to in point 4.
COUNCIL RESOLUTION OF 28 JUNE 1990 ON THE STRENGTHENING OF THE
EUROPE-WIDE COOPERATION ON RADIO FREQUENCIES, IN PARTICULAR WITH
REGARD TO SERVICES WITH A PAN-EUROPEAN DIMENSION (90/C 166/02)
Official Journal C 166, 07/07/1990 P. 0004 — 0006

Having regard to the proposal by the Commission,
Whereas the Council Resolution of 30 June 1988 on the development of the

common market for telecommunications services and equipment up to 1992 [1]
has called for the promotion of the creation of Europe-wide services according
to market requirements and appropriate social needs;
Whereas certain categories of radio-communication services are increasingly
becoming an essential component of these services, and are particularly vital
for citizens on the move in the Community;
Whereas such services require increasingly intensive use of the radio frequency
spectrum and the limitation of the spectrum reserved for these services
constitutes an acute problem;
Whereas the radio frequency spectrum is a scarce resource and there are other
important demands on its use, such as use for government, defence and
broadcasting purposes, including television as mentioned in Section 111 of
Chapter 1 of the Radio Regulations annexed to the Convention of the
International Telecommunications Union (ITU);
Whereas radio frequency usage in Europe is currently in accordance with the
radio regulations of the ITU and there must be flexibility in taking account of
national situations; whereas, however, there is an indispensable requirement
for coordination at the European level, in particular in the field of the new
public mobile communications systems and that of satellite applications;
Whereas agreement on common frequency bands for radio communications
systems with pan-European characteristics is an essential basis for technical
standardization in the field of radio equipment and the abovementioned
resolution and the Council resolution of 27 April 1989 on standardization in
the field of information technology and telecommunications [2] have recog-
nized the importance of measures regarding common standards in the
telecommunications sector;
Whereas common frequency bands are required in order to permit the use of
equipment in different countries, to minimize coordination problems at
frontiers and to facilitate the large production runs for equipment necessary
to make European industry competitive on the world market;
33
Whereas the systems of frequency allocation in the Member States have

developed historically and due account must be taken of international arrange-
ments and mechanisms which have been established in the field of frequency
planning;
Whereas this concerns in particular the international regulations and proce-
dures established in this field by the ITU;
Whereas at the European level a coordinated approach to frequency allocation
for Europe-wide systems is being developed within the framework of the
European Conference of Postal and Telecommunications Administrations
(CEEL):
Whereas given the growing complexity of market, technology and standards
the determination of frequency band and spectrum allocation for services of
Europe-wide dimension requires the opinions of all interested parties;
Whereas such Europe-wide consultation is indispensable to allow establish-
ment of standards, development of equipment by European industry, and
timely service introduction by the telecommunications organizations and other
providers, particularly in the field of mobile and satellite communications;
Whereas coordination of radio frequencies must respect the principle of the
separation of regulatory and operational duties;
Whereas the allocation of frequencies must therefore remain with the autho-
rities charged with the management of the frequency spectrum, according to
this principle;
Whereas the planning and allocation of the frequency spectrum for service
providers should be subject to objective, transparent and non-discriminatory
conditions and ensure equality of treatment opportunities taking account of the
requirements of existing services, of different categories of users and of the
protection of the essential interests of the security of Member States;
Whereas the most efficient use of the frequency spectrum which is a scarce
natural resource, requires the timely opinions from service providers, industry,
users and standards bodies in researching the frequencies best suited for future
applications, in order to take full account of long-term market and industrial
applications and the requirements of other users of the radio spectrum;
Whereas, therefore, the current mechanisms set up by CEPT should be

equipped with the necessary resources to undertake a long-term analysis of
frequency requirements, taking account of market demand, standards require-
ments and development of products and the requirements of other users of the
radio spectrum;
Whereas such a framework should be be able, taking account of the opinions of

frequency experts from national authorities responsible for frequency manage-
ment, telecommunications organizations, and other service providers, industry
90/C166 02 35
and users to identify, in particular, those frequencies best suited for services
with pan-European characteristics and to forward recommendations to the
regulatory authorities, or to the Community where appropriate;
Whereas such a framework would need close cooperation and interaction with
the European Telecommunications Standards Institute (ETSI), in order to
ensure the vital link between frequency planning and standards;
Whereas the CEPT has commenced and in some instances completed work in
this area; whereas ETSI, for its part, has also started work in this area;
Whereas such a framework should also support long-term frequency planning
at the European level and making recommendations for global shifts in
frequency use, taking account of the fact that significant time may be needed
to phase out or relocate existing uses, given the substantial investment in
existing radiocommunications systems;
Whereas in such a framework Member States will be obliged to comply with
Community law, in particular with the competition rules;
Whereas an appropriate involvement of the Commission of the European
Communities in such a framework should be sought;
Whereas such a framework should facilitate the working-out of common
positions at the international level concerning frequencies, in particular with
regard to the ITU and its conferences on radio frequencies, in line with the
resolution of 30 June 1988;
Whereas such a framework should draw on the experience of the existing
coordination mechanisms of the CEPT, must be Europe-wide and be open to
the opinions of any member of the categories set out above,
CONSIDERS THE FOLLOWING POINTS AS MAJOR POLICY

GOALS IN THIS AREA:
1. strengthening European cooperation in the field of radio frequency
coordination with the objective of providing for a sufficient frequency
spectrum for new services, according to the needs of the European
market and taking account of the requirements of existing services and
of different categories of users;
2. working in particular towards the timely allocation of sufficient frequency
resources to mobile and satellite applications while taking due account of
the demands on the spectrum of other users;
3. promoting the most efficient use of the frequency spectrum by taking
timely account of service and user requirements against the background
of industrial development and the development of standards;
4. developing common European positions in relation to the use of the
frequency spectrum concerning international frequency harmonization,
in particular with regard to the ITU and its relevant administrative radio
conferences, using mechanisms set up by CEPT;
in order to facilitate the achievement of these objectives, encouraging the

further development of the framework of cooperation between frequency
experts from national authorities responsible for frequency management,
telecommunication organizations and other service providers, industry
and users, developing the existing coordination mechanisms set up by the
CEPT. Such a framework should:
be open to the opinions of any member of the categories mentioned
above,
provide a forum for common studies towards identifying the
frequency spectrum most suited for services and applications,
taking due account of market requirements, the development of
products, and the needs of other users of the radio frequency
spectrum,
on this basis, work out in particular suitable frequencies for services
with ‘pan-European characteristics and forward, on request, appro-
priate recommendations to the regulatory authorities or to the
Community, as appropriate,
cooperate and interact closely, with ETSI and with the other
standardization bodies concerned, in order to take full account of
the close link between standards development and allocation of
frequency spectrum,
undertake research into long-term requirements for the frequency
spectrum, in order to promote long-term planning of frequency use
according to market needs and also take into account the needs of
different categories of users, and forward corresponding recom-
mendations to the regulatory authorities and to the Community
where appropriate,
undertake research in preparation of common positions at the ITU
conferences on radio frequencies where required in order to facil-
itate the working-out of common positions,
have available the resources to carry out analyses of long-term
market and technology implications of frequency recommendations
at the European level, and of an appropriate organizational
structure,
NOTES WITH SATISFACTION:
6. the current reform of radio frequency planning and coordination
mechanisms undertaken by the CEPT, and in particular the decision to
create a European Radiocommunications Office, allowing for the opi-
nions of all interested parties to be taken into account and having an
appropriate organization and an appropriate Statute;
90/C 16602 37
INVITES THE COMMISSION AND THE MEMBER STATES AND

THE CEPT:
7. to support the further development of the new framework set up by the
CEPT, including the setting up of the European Radiocommunications
Office on the basis of an appropriate statute, making available all the
resources necessary to ensure the efficiency of its operation and the
rapidity of its response to demands, in the light of the obligations of the
Member States under the Community law in particular competition rules
and the general policy goals defined in point 5.
(1) OJ No C 257, 4.11.1988, p. 1.

@) OF No Gay WS 1989 <p: Ae
COMMISSION DIRECTIVE OF 28 JUNE 1990 ON COMPETITION IN THE MARKETS
FOR TELECOMMUNICATIONS SERVICES (90/388/EEC)
Official Journal No. L 192, 24/07/1990 P. 0010 — 0016

Amended by 394L0046 (OJ L 268 19.10.94 p. 15)
Amended by 395L0051 (OJ L 256 26.10.95 p. 49)
Amended by 396L0002 (OJ L 020 26.01.96 p. 59)
Amended by 396L0019 (OJ L 074 22.03.96 p. 13)

Having regard to the Treaty establishing the EurGneee Economic Community,
and in particular Article 90 (3) thereof,
Whereas:
(1) The improvement of telecommunications in the Community is an

essential condition for the harmonious development of economic activities
and a competitive market in the Community, from the point of view of both
service providers and users. The Commission has therefore adopted a
programme, set out in its Green Paper on the development of the common
market for telecommunications services and equipment and in its communica-
tion on the implementation of the Green Paper by 1992, for progressively
introducing competition into the telecommunications market. The programme
does not concern mobile telephony and paging services, and mass communica-
tion services such as radio for television. The Council, in its resolution of 30
June 1988 [1], expressed broad support for the objectives of this programme,
and in particular the progressive creation of an open Community market for
telecommunications services. The last decades have seen considerable techno-
logical advances in the telecommunications sector. These allow an increasingly
varied range of services to be provided, notably data transmission services, and
also make it technically and economically possible for competition to take
place between different service providers.
(2) In all the Member States the provision and operation of telecommunica-
tions networks and the provision of related services are generally vested in one
or more telecommunications organizations holding exclusive or special rights.
Such rights are characterized by the discretionary powers which the State
exercises in various degrees with regard to access to the market for telecommu-
nications services.
(3) The organizations entrusted with the provision and operation of the
telecommunications network are undertakings within the meaning of Article
90 (1) of the Treaty because they carry on an organized business activity,
namely the provision of telecommunications services. They are either public
38
untertakings or private enterprises to which the State has granted exclusive or

special rights.
(4) Several Member States, while ensuring the performance of public service
tasks, have already revised the system of exclusive or special rights that used to
exist in the telecommunications sector in their country. In all cases, the system
of exclusive or special rights has been maintained in respect of the provision
and operation of the network. In some Member States, it has been maintained
for all telecommunications services, while in others such rights cover only
certain services. All Member States have either themselves imposed or allowed
their telecommunications administrations to impose restrictions on the free
provision of telecommunications services.
(5) The granting of special or exclusive rights to one or more undertakings to
operate the network derives from the discretionary power of the State. The
granting by a Member State of such rights inevitably restricts the provision of
such services by other undertakings to or from other Member States.
(6) In practice, restrictions on the provision of telecommunications services
within the meaning of Article 59 to or from other Member States consist
mainly in the prohibition on connecting leased lines by means of concentrators,
multiplexers and other equipment to the switched telephone network, in
imposing access charges for the connection that are out of proportion to the
service provided, in prohibiting the routing of signals to or from third parties
by means of leased lines or applying volume sensitive tariffs without economic
justification or refusing to give service providers access to the network. The
effect of the usage restrictions and the excessive charges in relation to net cost is
to hinder the provision to or from other Member States of such telecommuni-
cations services as:
— services designed to improve telecommunications functions, e.g. conver-
sion of the protocol, code, format or speed,
— information services providing access to data bases,
~ remote data-processing services,
— message storing and forwarding services, e.g. electronic mail,
= transaction services, e.g. financial transactions, electronic commercial
data transfer, teleshopping and telereservations,
— teleaction services, e.g. telemetry and remote monitoring.
(7) Articles 55, 56 and 66 of the Treaty allow exceptions on non-economic
grounds to the freedom to provide services. The restrictions permitted are those
connected, even occasionally, with the exercise of official authority, and those
connected with public policy, public security or public health. Since these are
exceptions, they must be interpreted restrictively. None of the telecommunica-
tions services is connected with the exercise of official authority involving the
right to use undue powers compared with the ordinary law, privileges of public
90/388/EEC 40
power or a power of coercion over the public. The supply of telecommunication

services cannot in itself threaten public policy and cannot affect public health.
(8) The Court of Justice caselaw also recognizes restrictions on the freedom
to provide services if they fulfil essential requirements in the general interest
and are applied without discrimination and in proportion to the objective.
Consumer protection does not make it necessary to restrict freedom to provide
telecommunications services since this objective can also be attained through
free competition. Nor can the protection of intellectual property be invoked in
this connection. The only essential requirements derogating from Article 59
which could justify restrictions on the use of the public network are the
maintenance of the integrity of the network, security of network operations
and in justified cases, interoperability and data protection. The restrictions
imposed, however, must be adapted to the objectives pursued by these
legitimate requirements. Member States will have to make such restrictions
known to the public and notify them to the Commission to enable it to assess
their proportionality.
(9) In this context, the security of network operations means ensuring the
availability of the public network in case of emergency. The technical integrity
of the public network means ensuring its normal operation and the inter-
connection of public networks in the Community on the basis of common
technical specifications. The concept of interoperability of services means
complying with such technical specifications introduced to increase the
provision of services and the choice available to users. Data protection means
measures taken to warrant the confidentiality of communications and the
protection of personal data.
(10) Apart from the essential requirements which can be included as condi-
tions in the licensing or declaration procedures, Member States can include
conditions regarding public-service requirements which constitute objective,
non-discriminatory and transparent trade regulations regarding the conditions
of permanence, availability and quality of the service.
(11) When a Member State has entrusted a telecommunications organization

with the task of providing packet or circuit switched data services for the public
in general and when this service may be obstructed because of competition by
private providers, the Commission can allow the Member State to impose
additional conditions for the provision of such a service, with respect also to
geographical coverage. In assessing these measures, the Commission in the
context of the achievement of the fundamental objectives of the Treaty referred
to in Article 2 thereof, including that of strengthening the Community’s
economic and social cohesion as referred to in Article 130a, will also take into
account the situation of those Member States in which the network for the
provision of the packet or circuit switched services is not yet sufficiently
developed and which could justifiy the deferment for these Member States until
1 January 1996 of the date for prohibition on the simple resale of leased line
capacity.
(12) Article 59 of the Treaty requires the abolition of any other restriction on
the freedom of nationals of Member States who are established in a Commu-
nity country to provide services to persons in other Member States. The
maintenance or introduction of any exclusive or special right which does not
correspond to the abovementioned criteria is therefore a breach of Article 90 in
conjunction with Article 59.
(13) Article 86 of the Treaty prohibits as incompatible with the common

market any conduct by one or more undertakings that involves an abuse of a
dominant position within the common market or a substantial part of it.
Telecommunications organizations are also undertakings for the purposes of
this Article because they carry out economic activities, in particular the service
they provide by making telecommunications networks and services available to
users. This provision of the network constitutes a separate services market as it
is not interchangeable with other services. On each national market the
competitive environment in which the network and the telecommunications
services are provided is homogeneous enough for the Commission to be able to
evaluate the power held by the organizations providing the services on these
territories. The territories of the Member States constitute distinct geographi-
cal markets. This is essentially due to the existing difference between the rules
governing conditions of access and technical operation, relating to the
provision of the network and of such services. Furthermore, each Member
State market forms a substantial part of the common market.
(14) In each national market the telecommunications organizations hold
individually or collectively a dominant position for the creation and the
exploitation of the network because they are the only ones with networks in
each Member State covering the whole territory of those States and because
their governments granted them the exclusive right to provide this network
either alone or in conjunction with other organizations.
(15) Where a State grants special or exclusive rights to provide telecommuni-
cations services to organizations which already have a dominant position in
creating and operating the network, the effect of such rights is to strengthen the
dominant position by extending it to services.
(16) Moreover, the special or exclusive rights granted to telecommunications
organizations by the State to provide certain telecommunications services
mean such organizations:
(a) prevent or restrict access to the market for these telecommunications
services by their competitors, thus limiting consumer choice, which is
liable to restrict technological progress to the detriment of consumers;
(b) compel network users to use the services subject to exclusive rights, and
thus make the conclusion of network utilization contracts dependent on
90/388/EEC 42
acceptance of supplementary services having no connection with the

subject of such contracts.
Each of these types of conduct represents a specific abuse of a dominant

position which is likely to have an appreciable effect on trade between Member
States, as all the services in question could in principle be supplied by providers
from other Member States. The structure of competition within the common
market is substantially changed by them. At all events, the special or exclusive
rights for these services give rise to a situation which is contrary to the
objective in Article 3 (f) of the Treaty, which provides for the institution of a
system ensuring that competition in the common market is not distorted, and
requires a fortiori that competition must not be eliminated. Member States
have an obligation under Article 5 of the Treaty to abstain from any measure
which could jeopardize the attainment of the objectives of the Treaty, including
that of Article 3 (f). ;
(17) The exclusive rights to telecommunications services granted to public
undertakings or undertakings to which Member States have granted special or
exclusive rights for the provision of the network are incompatible with Article
90 (1) in conjunction with Article 86.
(18) Article 90 (2) of the Treaty allows derogation from the application of
Articles 59 and 86 of the Treaty where such application would obstruct the
performance, in law or in fact, of the particular task assigned to the
telecommunications organizations. This task consists in the provision and
exploitation of a universal network, i.e. one having general geographical
coverage, and being provided to any service provider or user upon request
within a reasonable period of time. The financial resources for the development
of the network still derive mainly from the operation of the telephone service.
Consequently, the opening-up of voice telephony to competition could threaten
the financial stability of the telecommunications organizations. The voice
telephony service, whether provided from the present telephone network or
forming part of the ISDN service, is currently also the most important means
of notifying and calling up emergency services in charge of public safety.
(19) The provision of leased lines forms an essential part of the telecommu-
nications organizations’ tasks. There is at present, in almost all Member States,
a substantial difference between charges for use of the data transmission
service on the switched network and for use of leased lines. Balancing those
tariffs without delay could jeopardize this task. Equilibrium in such charges
must be achieved gradually between now and 31 December 1992. In the
meantime it must be possible to require private operators not to offer to the
public a service consisting merely of the resale of leased line capacity, i.e.
including only such processing, switching of data, storing, or protocol conver-
sion as 1s necessary for transmission in real time. The Member States may
therefore establish a declaration system through which private operators would
undertake not to engage in simple resale.
However, no other requirement may be imposed on such operators to ensure

compliance with this measure.
(20) These restrictions do not affect the development of trade to such an
extent as would be contrary to the interests of the Community. Under these
circumstances, these restrictions are compatible with Article 90 (2) of the
Treaty. This may also be the case as regards the measures adopted by Member
States to ensure that the activities of private service providers do not obstruct
the public switched-data service.
(21) The rules of the Treaty, including those on competition, apply to telex
services; however, the use of this service is gradually declining throughout the
Community owing to the emergence of competing means of telecommunica-
tion such as telefax. The abolition of current restrictions on the use of the
switched telephone network and leased lines will allow telex messages to be
retransmitted. In view of this particular trend, an individual approach is
necessary. Consequently, this Directive should not apply to telex services.
(22) The Commission will in any event reconsider in the course of 1992 the
remaining special or exclusive rights on the provision of services taking
account of technological development and the evolution towards a digital
infrastructure.
(23) Member States may draw up fair procedures for ensuring compliance
with the essential requirements without prejudice to the harmonization of the
latter at Community level within the framework of the Council Directives on
open network provision (ONP). As regards data-switching, Member States
must be able, as part of such procedures, to require compliance with trade
regulations from the standpoint of conditions of permanence, availability and
quality of the service, and to include measures to safeguard the task of general
economic interest which they have entrusted to a telecommunications organi-
zation. The procedures must be based on specific objective criteria and be
applied without discrimination. The criteria should in particular be justified
and proportional to the general interest objective, and be duly motivated and
published. The Commission must be able to examine them in depth in the light
of the rules on free competition and freedom to provide services. In any event,
Member States that have not notified the Commission of their planned
licensing criteria and procedures within a given time may no longer impose
any restrictions on the freedom to provide data transmission services to the
public.
(24) Member States should be given more time to draw up general rules on
the conditions governing the provision of packet- or circuit-switched data
services for the public.
(25) Telecommunications services should not be subject to any restriction,
either as regards free access by users to the services, or as regards the
processing of data which may be carried out before messages are transmitted
90/388/EEC 44
through the network or after messages have been received, except where this is
warranted by an essential requirement in proportion to the objective pursued.
(26) The digitization of the network and the technological improvement of
the terminal equipment connected to it have brought about an increase in the
number of functions previously carried out within the network and which can
now be carried out by users themselves with increasingly sophisticated
terminal equipment.
It is necessary to ensure that suppliers of telecommunication services, and
notably suppliers of telephone and packet or circuit-switched data transmission
services enable operators to use these functions.
(27) Pending the establishing of Community standards with a view to an open
network provision (ONP), the technical interfaces currently in use in the
Member States should be made publicly available so that firms wishing to
enter the markets for the services in question can take the necessary steps to
adapt their services to the technical characteristics of the networks. If the
Member States have not yet established such technical interfaces, they should
do so as quickly as possible. All such draft measures should be communicated
to the Commission in accordance with Council Directive 83/189/EEC [2], as
last amended by Directive 88/182/EEC [3].
(28) Under national legislation, telecommunications organizations are gen-

erally given the function of regulating telecommunications services, particu-
larly as regards licensing, control of type-approval and mandatory interface
specifications, frequency allocation and monitoring of conditions of use. In
some cases, the legislation lays down only general principles governing the
operation of the licensed services and leaves it to the telecommunications
organizations to determine the specific operating conditions.
(29) This dual regulatory and commercial function of the telecommunica-

tions organizations has a direct impact on firms offering telecommunications
services in competition with the organizations in question.
By this bundling of activities, the organizations determine or, at the very least,
substantially influence the supply of services offered by their competitors. The
delegation to an undertaking which has a dominant position for the provision
and exploitation of the network, of the power to regulate access to the market
for telecommunication services constitutes a strengthening of that dominant
position. Because of the conflict of interests, this is likely to restrict competi-
tors’ access to the markets in telecommunications services and to limit users’
freedom of choice. Such arrangements may also limit the outlets for equipment
for handling telecommunications messages and, consequently, technological
progress in that field. This combination of activities therefore constitutes an
abuse of the dominant position of telecommunications organizations within
the meaning of Article 86. If it is the result of a State measure, the measure is
also incompatible with Article 90 (1) in conjunction with Article 86.
(30) To enable the Commission to carry out effectively the monitoring task
assigned to it by Article 90 (3), it must have available certain essential
information. That information must in particular give the Commission a clear
view of the measures of Member States, so that it can ensure that access to the
network and the various related services are provided by each telecommunica-
tions organization to all its customers on non-discriminatory tariff and other
terms. Such information should cover:
— measures taken to withdraw exclusive rights pursuant to this Directive,
— the conditions on which licences to provide telecommunications services
are granted.
The Commission must have such information to enable it to check, in

particular, that all the users of the network and services, including telecommu-
nications organizations where they are providers of services, are treated equally
and fairly.
(31) The holders of special or exclusive rights to provide telecommunications

services that will in future be open to competition have been able in the past to
impose long-term contracts on their customers. Such contracts would in
practice limit the ability of any new competitors to offer their services to such
customers, and of such customers to benefit from such services. Users must
therefore be given the right to terminate their contracts within a reasonable
length of time.
(32) Each Member State at present regulates the supply of telecommunica-

tions services according to its own concepts. Even the definition of certain
services differs from one Member State to another. Such differences cause
distortions of competition likely to make the provision of cross-frontier
telecommunications services more difficult for economic operators. This is
why the Council, in its resolution of 30 June 1988, considered that one of the
objectives of a telecommunications policy was the creation of an open
Community market for telecommunications services, in particular through
the rapid definition, in the form of Council Directives, of technical conditions,
conditions of use and principles governing charges for an open network
provision (ONP). The Commission has presented a proposal to this end to the
Council. Harmonization of the conditions of access is not however the most
appropriate means of removing the barriers to trade resulting from infringe-
ments of the Treaty. The Commission has a duty to ensure that the provisions
of the Treaty are applied effectively and comprehensively.
(33) Article 90 (3) assigns clearly-defined duties and powers to the Commis-
sion to monitor relations between Member States and their public under-
takings and undertakings to which they have granted special or exclusive
rights, particularly as regards the removal of obstacles to freedom to provide
services, discrimination between nationals of the Member States and competi-
tion. A comprehensive approach is necessary in order to end the infringements
that persist in certain Member States and to give clear guidelines to those
90/388/EEC 46
Member States that are reviewing their legislation so as to avoid further

infringements. A Directive within the meaning of Article 90 (3) of the Treaty
is therefore the most appropriate means of achieving that end.

Article 1
1. For the purposes of this Directive:
- ‘telecommunication organizations’ means public or private bodies,
and the subsidiaries they control, to which a Member State grants
special or exclusive rights for the provision of a public telecommu-
nications network and, when applicable, telecommunications ser-
vices,
- ‘special or exclusive rights’ means the rights granted by a Member
State or a public authority to one or more public or private bodies
through any legal, regulatory or administrative instrument reser-
ving them the right to provide a service or undertake an activity,
- ‘public telecommunications network’ means the public telecommu-
nications infrastructure which permits the conveyance of signals
between defined network termination points by wire, by microwave,
by optical means or by other electromagnetic means,
- ‘telecommunications services’ means services whose provision con-
sists wholly or partly in the transmission and routing of signals on
the public telecommunications network by means of telecommuni-
cations processes, with the exception of radio-broadcasting and
television,
- ‘network termination point’ means all physical connections and
their technical access specifications which form part of the public
telecommunications network and are necessary for access to and
efficient communication through that public network,
~ ‘essential requirements’ means the non-economic reasons in the
general interest which may cause a Member State to restrict access
to the public telecommunications network or public telecommuni-
cations services. These reasons are security of network operations,
maintenance of network integrity, and, in justified cases, interoper-
ability of services and data protection. Data protection may include
protection of personal data, the confidentiality of information
transmitted or stored as well as the protection of privacy,
- ‘voice telephony’ means the commercial provision for the public of
the direct transport and switching of speech in real-time between
public switched network termination points, enabling any user to
use equipment connected to such a network termination point in
order to communicate with another termination point,
- ‘telex service’ means the commercial provision for the public of
direct transmission of telex messages in accordance with the
relevant Comité consultatif international télégraphique et télépho-
nique (CCITT) recommendation between public switched network

termination points, enabling any user to use equipment connected
to such a network termination point in order to communicate with
another termination point,
- ‘packet- and circuit-switched data services’ means the commercial
provision for the public of direct transport of data between public
switched network termination points, enabling any user to use
equipment connected to such a network termination point in order
to communicate with another termination point,
- ‘simple resale of capacity’ means the commercial provision on
leased lines for the public of data transmission as a separate service,
including only such switching, processing, data storage or protocol
conversion as is necessary for transmission in real time to and from
the public switched network.
2. This Directive shall not apply to telex, mobile radiotelephony, paging and
satellite services.
Article 2
Without prejudice to Article 1 (2), Member States shall withdraw all special or
exclusive rights for the supply of telecommunications services other than voice
telephony and shall take the measures necessary to ensure that any operator 1s
entitled to supply such telecommunications services.
Member States which make the supply of such services subject to a licensing or
declaration procedure aimed at compliance with the essential requirements
shall ensure that the conditions for the grant of licences are objective, non-
discriminatory and transparent, that reasons are given for any refusal, and that
there is a procedure for appealing against any such refusal.
Without prejudice to Article 3, Member States shall inform the Commission no
later than 31 December 1990 of the measures taken to comply with this Article
and shall inform it of any existing regulations or of plans to introduce new
licensing procedures or to change existing procedures.
Article 3
As regards packet- or circuit-switched data services, Member States may, until
31 December 1992, under the authorization procedures referred to in Article 2,
prohibit economic operators from offering leased line capacity for simple resale
to the public.
Member States shall, no later than 30 June 1992, notify to the Commission at
the planning stage any licensing or declaration procedure for the provision of
packet- or circuit-switched data services for the public which are aimed at
compliance with:
- essential requirements, or
~ trade regulations relating to conditions of permanence, availability and
quality of the service, or
90/388/EEC 48
— measures to safeguard the task of general economic interest which they

have entrusted to a telecommunications organization for the provision of
switched data services, if the performance of that task is likely to be
obstructed by the activities of private service providers.
The whole of these conditions shall form a set of public-service specifications
and shall be objective, non-discriminatory and transparent.
Member States shall ensure, no later than 31 December 1992, that such
licensing or declaration procedures for the provision of such services are
published.
Before they are implemented, the Commission shall verify the compatibility of
these projects with the Treaty.
Article 4
Member States which maintain special or exclusive rights for the provision and
operation of public telecommunications networks shall take the necessary
measures to make the conditions governing access to the networks objective
and non-discriminatory and publish them.
In particular, they shall ensure that operators who so request can obtain leased
lines within a reasonable period, that there are no restrictions on their use
other than those justified in accordance with Article 2.
Member States shall inform the Commission no later than 31 December 1990
of the steps they have taken to comply with this Article.
Each time the charges for leased lines are increased, Member States shall
provide information to the Commission on the factors justifying such in-
creases.
Article 5
Without prejudice to the relevant international agreements, Member States
shall ensure that the characteristics of the technical interfaces necessary for the
use of public networks are published by 31 December 1990 at the latest.
Member States shall communicate to the Commission, in accordance with

Directive 83/189/EEC, any draft measure drawn up for this purpose.
Article 6
Member States shall, as regards the provision of telecommunications services,
and existing restrictions on the processing of signals before their transmission
via the public network or after their reception, unless the necessity of these
restrictions for compliance with public policy or essential requirements is
demonstrated.
Without prejudice to harmonized Community rules adopted by the Council on

the provision of an open network, Member States shall ensure as regards
services providers including the telecommunications organizations that there is

no discrimination either in the conditions of use or in the charges payable.
Member States shall inform the Commission of the measures taken or draft
measures introduced in order to comply with this Article by 31 December 1990
at the latest.
Article 7
Member States shall ensure that from 1 July 1991 the grant of operating
licences, the control of type approval and mandatory specifications, the
allocation of frequencies and surveillance of usage conditions are carried out
by a body independent of the telecommunications organizations.
They shall inform the Commission of the measures taken or draft measures
introduced to that end no later than 31 December 1990.
Article8
Member States shall ensure that as soon as the relevant special or exclusive
rights have been withdrawn, telecommunications organizations make it possi-
ble for customers bound to them by a contract with more than one year to run
for the supply of telecommunications services which was subject to such a right
at the time it was concluded to terminate the contract at six months’ notice.
Article 9
Member States shall communicate to the Commission the necessary informa-
tion to allow it to draw up, for a period of three years, at the end of each year,
an overall report on the application of this Directive. The Commission shall
transmit this report to the Member States, the Council, the European
Parliament and the Economic and Social Committee.
Article 10
In 1992, the Commission will carry out an overall assessment of the situation
in the telecommunications sector in relation to the aims of this Directive.
In 1994, the Commission shall assess the effects of the measures referred to in
Article 3 in order to see whether any amendments need to be made to the
provisions of that Article, particularly in the light of technological evolution
and the development of trade within the Community.
Article 11
Done at Brussels, 28 June 1990.

For the Commission
Leon BRITTAN
Vice-President
(1) OJ No C 257, 4. 10. 1988, p. 1.
(2) OJ No L 109, 26. 4. 1983, p. 8.
CG) OV Nol Sly 2653219885 p. 75:
CouNCIL DIRECTIVE OF 29 APRIL I99I ON THE APPROXIMATION OF THE LAWS
OF THE MEMBER STATES CONCERNING TELECOMMUNICATIONS TERMINAL
EQUIPMENT, INCLUDING THE MUTUAL RECOGNITION OF THEIR CONFORMITY
(91/263/EEC)
Official Journal No. L128, 23.05.1991

Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100a thereof,
In cooperation with the European Parliament [2],
Whereas Directive 86/361/EEC introduced the initial stage of the mutual
recognition of type approval for telecommunications terminal equipment and
in particular in its Article 9 envisaged a further stage for full mutual
recognition of type approval for terminal equipment [4];
Whereas Decision 87/95/EEC sets out the measures to be implemented for the
promotion of standardization in Europe and the preparation and implementa-
tion of standards in the field of information technology and telecommunica-
tions [5];
Whereas the Commission has issued a Green Paper on the development of the
common market for telecommunications services and equipment proposing to
accelerate the introduction of the full mutual recognition of type approval as
the measure vital for the development of a competitive Community-wide
terminal market;
Whereas the Council, in its resolution of 30 June 1988 on the development of

the common market for telecommunications services and equipment up to
1992 [6] considers as a major goal in the telecommunications policy the full
mutual recognition of type approval for terminal equipment on the basis of the
rapid development of common European conformity specifications;
Whereas the terminal equipment sector is a vital part of the telecommunica-
tions industry, which is one of the industrial mainstays of the economy in the
Community;
Whereas harmonizing conditions for the placing on the market of telecommu-

nications terminal equipment will create the conditions for an open and unified
market;
Whereas real, comparable access to third country markets for European

manufacturers should preferably the achieved through multilateral negotia-
50
tions within GATT, although bilateral talks between the Community and third
countries may also contribute to this process;
Whereas the Council resolution of 7 May 1985 provides for a new approach to
technical harmonization and standards [7];
Whereas the scope of the Directive must be based on a general definition of the
term ‘terminal equipment’ so as to allow the technical development of
products;
Whereas Community law in its present form provides — notwithstanding one of

the fundamental rules of the Community, namely the free movement of goods —
that obstacles to movement within the Community, resulting from disparities
in national legislation relating to the marketing of products, must be accepted
in so far as such requirements can be recognized as being necessary to satisfy
imperative requirements; whereas, therefore, the harmonization of laws in this
case must be limited only to those requirements necessary to satisfy the
essential requirements relating to terminal equipment; whereas these require-
ments must replace the relevant national requirements because they are
essential;
Whereas the essential requirements must be satisfied in order to safeguard the

general interest; whereas these requirements must be applied with discernment
to take account of the state of the art at the time of manufacture and economic
requirements;
Whereas Council Directive 73/23/EEC of 19 February 1973 on the harmoni-
zation of the laws of the Member States relating to electrical equipment
designed for use within certain voltage limits [8] and Council Directive 83/
189/EEC of 28 March 1983 laying down a procedure for the provision of
information in the field of technical standards and regulations [9], as amended
by Directive 88/182/EEC [10], are applicable, inter alia, to the fields of
telecommunications and information technology;
Whereas Council Directive 89/336/EEC of 3 May 1989 on the approximation
of the laws of Member States relating to electromagnetic compatibility is
applicable, inter alia, to the fields of telecommunications and information
technology; whereas it is, however, appropriate to delete the provisions of
Directive 89/336/EEC in so far as they refer to the definition of telecommuni-
cations terminal equipment and to the conformity assessment procedures to be
applied for such equipment;
Whereas in respect of the essential requirements and in order to help
manufacturers to prove conformity to those requirements, it is desirable to
have standards harmonized at European level to safeguard the general interest
in the design and manufacture of terminal equipment and in order to allow
checks of conformity to those requirements; whereas these standards harmo-
nized at European level are drawn up by private-law bodies and must retain
91/2603/EEC 52
their nonbinding status; whereas for this purpose the European Committee for
Standardization (CEN), the European Committee for Electrotechnical Stan-
dardization (Cenelec) and the European Telecommunications Standards In-
stitute (ETSI), are the bodies recognized as competent to adopt harmonized
standards; whereas, within the meaning of this Directive, a harmonized
standard is a technical specification (European standard or harmonization
document) adopted by one of these bodies, on the basis of a remit from the
Commission in accordance with the provision of Directive 83/189/EEC, and
in accordance with the general guidelines referred to above;
Whereas in respect of the essential requirements related to interworking with
public telecommunications networks, and in cases where it is justified, through
such networks, it is in general not possible to comply with such requirements
other than by the application of unique technical solutions; fe? such
solutions shall therefore be mandatory;
Whereas the proposals for common technical regulations are, as a general rule,
drawn up on the basis of harmonized standards, and, in order to ensure an
appropriate technical coordination on a broad European basis, of additional
consultations, in particular with the Telecommunications Regulations Applica-
tion Committee (TRAC) set up by members of the European Conference of
Postal and Telecommunications Administrations (CEPT) in a memorandum of
understanding signed in 1991;
Whereas it is essential to ensure that notified bodies are of a high standard
throughout the Community and meet minimum criteria of competence,
impartiality and financial and other independence from clients;
Whereas it is appropriate to set up a committee bringing together parties
directly concerned with the implementation of this Directive, in particular the
national bodies designated for certifying conformity, to assist the Commission
in executing the tasks entrusted to it by this Directive; whereas representatives
from the telecommunication organizations, users, consumers, manufacturers,
service providers and the trade unions should have the right to be consulted;
Whereas the Member States’ responsibility for safety, health and the other
aspects covered by the essential requirements on their territory must be
recognized in a safeguard clause providing for adequate Community protection
procedures;
Whereas the addressees of any decision taken under this Directive must be
informed of the reasons for such a decision and the means of appeal open to
them;
Whereas measures must be adopted with the aim of progressively establishing

the internal market over a period expiring on 31 December 1992; whereas the
internal market comprises an area without internal frontiers in which the free
movement of goods, persons, services and capital is ensured,

Chapter I
Scope, placing on the market and free circulation
Article 1
ie This Directive shall apply to terminal equipment.
2. For the purpose of this Directive:
- ‘public telecommunications network’ means the public telecommu-
nications infrastructure which permits the conveyance of signals
between defined network termination points by wire, by microwave,
by optical means or by other electromagnetic means,
- ‘terminal equipment’ means equipment intended to be connected to
the public telecommunications network, i.e.:
(a) to be connected directly to the termination of a public
telecommunications network;
or
(b) to interwork with a public telecommunications network being

connected directly or indirectly to the termination of a public
telecommunications network in order to send, process or
receive information.
The system of connection may be wire, radio, optical or other
electromagnetic system,
— ‘technical specification’ means a specification contained in a docu-
ment which lays down the characteristics required of a product such
as levels of quality, performance, safety or dimensions, including
the requirements applicable to the product as regards terminology,
symbols, testing and test methods, packaging, marking and label-
ling,
- ‘standard means’ a technical specification adopted by a recognized
standards body for repeated or continuous application, compliance
with which is not compulsory.
The intended purpose of the equipment, shall be declared by the

manufacturer or supplier of the equipment. However, terminal equip-
ment within the meaning of paragraph 2 which makes use of a system of
communication employing the radio frequency spectrum is presumed to
be intended for connection to the public telecommunications network.
Article 2
I. Notwithstanding Article 1, equipment which is capable of being con-
nected to the public telecommunications network, but is not intended for
such a purpose, shall be accompanied by a manufacturer’s or supplier’s
declaration, the model of which is to be found in Annex VIII and by the
operating manual. At the time of placing the equipment on the market for
the first time, a copy of such documentation shall be transmitted to the
91/263/EEC 54
notified body referred to in Article 10 (1) in the Member State where this
first placing on the market takes place. In addition, such equipment shall
be subject to the provisions of Article 11 (4).
The manufacturer or supplier shall be prepared to justify once, at the
request of any notified body referred to in Article 10 (1), the intended
purpose of such equipment on the basis of its relevant technical
characteristics, its functions and indications of the market segment it is
intended for.
Article3
im Member States shall take all appropriate measures to ensure that
terminal equipment may be placed on the market and put into service
only if it complies with the requirements laid down in this Directive when
it is properly installed and maintained and used for its intended purpose.
Member States shall also take all appropriate measures to ensure that
equipment referred to in Article 2 may be placed and allowed to remain
on the market only if it complies with the requirements laid down by this
Directive for this equipment and may not be connected to the public
telecommunications network within the meaning of Article | (2).
terminal equipment or equipment referred to in Article 2 is disconnected
from the public telecommunications network if it is not used for its
intended purpose. Member States may moreover take all appropriate
measures, according to their national laws, to prevent connection to the
public telecommunications network of terminal equipment that is not
used in conformity with its intended purpose.
Article 4
Terminal equipment shall satisfy the following essential requirements:
(a) user safety, in so far as this requirement is not covered by Directive 73/
23/ BEC:
(b) safety of employees of public telecommunications networks operators, in
so far as this requirement is not covered by Directive 73/23/EEC;
(c) electromagnetic compatibility requirements in so far as they are specific
to terminal equipment;
(d) protection of the public telecommunications network from harm;
(c) effective use of the radio frequency spectrum, where appropriate;
(f) interworking of terminal equipment with public telecommunications
network equipment for the purpose of establishing, modifying, charging
for, holding and clearing real or virtual connection;
(g) interworking of terminal equipment via the public telecommunications
network, in justified cases. The cases where terminal equipment supports:
(i) reserved service according to Community law;
or
(ii) a service which the Council has decided that there should be
Community-wide availability, are considered as justified cases and
the requirements concerning this interworking are determined in
accordance with the procedure provided for in Article 14.
In addition, after consultation of representatives of the bodies referred to in
Article 13 (3) and taking due account of the result of these consultations, the
Commission may propose that this essential requirement is recognized as being
justified for other terminal equipment in accordance with the procedure
provided for in Article 14.
Article 5
Member States shall not impede the placing on the market and the free
circulation and use on their territory of terminal equipment which complies
with the provisions of this Directive.
Article 6
1. |Member States shall presume compliance with the essential requirements
referred to in Article 4 (a) and (b) in respect of terminal equipment which
is in conformity with the national standards implementing the relevant
harmonized standards, the references of which have been published in the
Official Journal of the European Communities. Member States shall
publish the references of such national standards.
2. The Commission shall, in accordance with the procedure laid down in
Article 14, adopt:
— as a first step, the measure identifying the type of terminal
equipment for which a common technical regulation is required, as
well as the associated scope statement for that regulation, with a
view to its transmission to the relevant standardization bodies,
~ as a second step, once they have been prepared by the relevant
standardization bodies, the corresponding harmonized standards,
or parts thereof, implementing the essential requirements referred
to in Article 4 (c) to (g) which shall be transformed into common
technical regulations, compliance with which shall be mandatory
and the reference of which shall be published in the Official Journal
of the European Communities.
Article 7
Where a Member State or the Commission considers that the harmonized
standards referred to in Article 6 exceed or do not entirely meet the essential
requirements referred to in Article 4, the Commission or the Member State
concerned shall bring the matter before the Committee referred to in Article
13, hereinafter referred to as the Committee, giving the reasons therefor. The
Committee shall deliver an opinion as soon as possible.
In the light of the Committee’s opinion and after consultation of the standing
Committee set up by Directive 83/189/EEC, the Commission shall inform the
Member States whether or not it is necessary to withdraw reference to those
91/263/EEC 56
standards and any related technical regulations from the Official Journal of the
European Communities and shall take the necessary steps to correct the
shortcomings noted in the standards.
Article 8
hy Where a Member State finds that terminal equipment bearing the
markings under the provision laid down in Chapter III does not comply
with the relevant essential requirements when properly used in accor-
dance with the purpose intended by the manufacturer, it shall take all
appropriate measures to withdraw such products from the market or to
prohibit or restrict their being placed on the market.
The Member State concerned shall immediately inform the Commission
of any such measure indicating the reasons for its decision, and in
particular whether non-compliance is due to:
(a) incorrect application of the harmonized standards or common
technical regulations referred to in Article 6;
(b) shortcomings in the harmonized standards or common technical
regulations referred to in Article 6 themselves.
The Commission shall enter into consultation with the parties concerned
as soon as possible. Where, after such consultation, the Commission finds
that any measure as referred to in paragraph | is justified it shall
immediately so inform the Member State that took the action and the
other Member States. Where the decision referred to in paragraph | is
attributed to shortcomings in the harmonized standards or common
technical regulations, the Commission, after consulting the parties
concerned, shall bring the matter before the Committee within two
months if the Member State which has taken the measure intends to
maintain them, and shall initiate the procedure referred to in Article 7.
Where terminal equipment which does not comply with the relevant
essential requirements bears the CE mark the competent Member State
shall take appropriate action against whomsoever has affixed the mark
and shall inform the Commission and the other Member States thereof.
The Commission shall keep the Member State informed of the progress
and outcome of this procedure.
Chapter II
Conformity assessment
Article 9
iP According to the choice of the manufacturer or his authorized represen-
tative established within the Community, terminal equipment shall be
subject to either the EC type-examination, as described in Annex I, or to
the EC declaration of conformity, as described in Annex IV.
An EC type-examination as described in Annex I shall be accompanied
by a declaration issued according to the EC declaration of conformity to
type procedure as described in Annex II or Annex III.
D7 Telecommunications
The records and correspondence relating to the procedure referred to in

this Article shall be in an official language of the Member State where the
said procedure will be carried out, or in a language acceptable to the
notified body involved
4. Article 10 (4) of Directive 89/336/EEC is hereby deleted.
Article 10
Le Member States shall notify to the Commission the bodies established in
the Community and their identifying symbols, which they have desig-
nated for carrying out the certification, product checks, and associated
surveillance tasks pertaining to the procedures referred to in Article 9.
Member States shall apply the minimum criteria, set out in Annex V, for
the designation of such bodies. Bodies that satisfy the criteria fixed by the
relevant harmonized standards shall be presumed to satisfy the criteria
set out in Annex V.
Member States shall inform the Commission of test laboratories estab-
lished in the Community which they have designated for carrying out
tests pertaining to the procedures referred to in Article 9. Notified bodies
shall apply the criteria fixed by the appropriate parts of the relevant
harmonized standards for the designation of such laboratories.
The Commission shall publish the list of notified bodies and the list of
test laboratories together with the tasks for which they have been
designated in the Official Journal of the European Communities and
shall ensure that this list is kept up to date.
A Member State has designated a notified body or a test laboratory under
paragraph 1 or 2 shall annul the designation if the notified body or the
test laboratory no longer meets the relevant criteria for designation. It
shall immediately inform the other Member States and the Commission
accordingly and withdraw the notification. Where a Member State or the
Commission considers that a notified body or a test laboratory desig-
nated by a Member State does not meet the relevant criteria the matter
shall be brought before the Committee referred to in Article 13, which
shall give its opinion within three months; in the light of the Committee’s
opinion the Commission shall inform the Member State concerned of
any changes needed if that notified body or test laboratory is to retain its
recognized status.
In order to facilitate the determination of conformity of terminal
equipment with technical regulations and standards, the notified bodies
shall recognize documentation issued by third country relevant bodies,
when agreements between the Community and the third country con-
cerned have been concluded on the basis of a mutually satisfactory
understanding.
The notified bodies referred to in Article 10 (1), when issuing an EC type-
examination certificate as referred to in Annex I, followed by the
appropriate document referred to in Annex II or III, or a decision on
O1/263/EEC 58
quality assurance assessment as referred to in Annex IV, issue at the same

time an administrative approval for the connection of the concerned
terminal equipment to the public telecommunications network.
Chapter III
CE mark of conformity and inscriptions
Article 11
it The marking of terminal equipment complying with this Directive shall
consist of the CE mark consisting of the symbol ‘CE’, followed by the
identifying symbol of the notified body responsible and a symbol
indicating that the equipment is intended and is suitable to be connected
to the public telecommunications network. The CE mark and these two
symbols are shown in Annex VI.
The affixing of marks which are likely to be confused with the marks of
conformity specified in Annex VI shall be prohibited.
Terminal equipment shall be identified by the manufacturer by means of
type, batch and/or serial numbers and by the name of the manufacturer
and/or supplier responsible for placing it on the market.
Equipment manufacturers or suppliers who place on the market equip-
ment as referred to in Article 2 shall affix the symbol specified in Annex
VII in such a way that it follows the CE mark and visually forms an
integral part of the total marking.
Article 12
Where it is established that the marking referred to in Article 11 (1) has been
affixed to terminal equipment which:
does not conform to an approved type,
conforms to an approved type which does not meet the essential
requirements applicable to it, or, where the manufacturer has failed to
fulfil his obligations under the relevant EC declaration of conformity, the
notified body shall withdraw the EC type-examination certificate referred
to in Annex I, the EC quality system approval decision referred to in
Annex III or the EC quality system approval decision as referred to in
Annex IV, notwithstanding any decisions taken under Article 8.
Chapter IV
Committee
Article 13
ft The Commission shall be assisted by a Committee of an advisory nature
representative of the Commission. The Committee shall be called the
Approvals Committee for Terminal Equipment (ACTE).
The representative of the Commission shall submit to the Committee a
draft of the measure to be taken. The Committee shall deliver its opinion

minutes.
by the Committee. It shall inform the Committee of the manner in which
The Commission will periodically consult the representative of the
telecommunications organizations, the consumers, the manufacturers,
the service providers and trade unions and will inform the Committee
on the outcome of such consultations, with a view to taking due account
of the outcome.
Article 14
Ie Notwithstanding Article 13 (1) and (2), the following procedure shall
apply for matters covered by Articles 4 (g) and 6 (2).
Z The representative of the Commission shall submit to the Committee
established in Article 13 a draft of the measures to be taken as referred to
in Articles 4 (g) and 6 (2). 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.
accordance with the opinion of the Committee.
Committee, or if no opinion is delivered, the Commission shall, without
delay, submit to the Council a proposal relating to the measure to be
taken. The Council shall act by qualified majority. If, within three months
from the date of referral to it, the Council has not acted, the proposed
measure shall be adopted by the Commission.
Chapter V
Final and transitional provisions
Article 15
The Commission shall draw up every second year a report on the implementa-
tion of this Directive, including progress on drawingup the relevant harmo-
nized standards and on transforming theminto technical regulations, as well as
any problems that havearisen in the course of implementation. The report will
alsooutline the activities of the Committee, and assess progress in achieving an
open competitive market for terminal equipment at Community level consis-
tent with the essential requirements referred to in Article 4.
91/263/EEC 60
Article 16
if Directive 86/361/EEC is hereby repealed, with effect from 6 November
1992. References made to the repealed Directive shall be construed as
being made to this Directive.
Notwithstanding paragraph 1 and Article 10 (2), Member States may
designate as test laboratories such bodies which have been notified under
Directive 86/361/EEC, without applying the criteria of Article 10 (2) for
a period of 18 months after the effective date of repeal of Directive 86/
361/EEC, it being understood that these laboratories will continue to
observe the criteria for which they werenotified.
Notwithstanding paragraph 1, any type approval granted by Member
States in accordance with Directive 86/361 /EEC may remain valid under
the legislation of the Member States within the criteria of validity
appropriate to the original approval.
Notwithstanding paragraph 1, measures adopted under Directive 86/
361/EEC shall be submitted to the Committee under the procedure of
Article 14 for possibletransposition into common technical regulations.
Article 17
ile Member States shall take the measure necessary to comply with this
Directive not later than 6 November 1992. They shall forthwith inform
the Commission thereof. When Member States adopt these measure, 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.
Member States shall inform the Commission of the main provisions of
domestic law which they adopt in the field governed by this Directive.
Article 18
Official Journal No. L128, 23.05.1991
Done at Luxembourg, 29 April 1991.

For the Council
The President
R. GOEBBELS
(1) OJ No C 211, 17.8.1989, p. 12.

(2) OJ No C 113, 7.5.1990; and OJ No C 19, 28.1.1991, p. 88.
(3) OJ No C 329, 30.12.1989, p. 1
(4) OJ No L 217, 5.8.1986, p. 21.
(5) OLNo 36; 7.241987, ps3i.
(6) OJ No C 257, 4.10.1988, p. 1.
(7) OJ No C 136, 4.6.1985, p. 1.
(8) OF Nowe HR 26:3: 1973 5p129:
(9) OJ No L 109, 26.4.1983, p. 8.
(10) OJ No L 81, 26.3.1988, p. 75.
ANNEX I
EC type-examination
EC type-examination is that part of the procedure whereby a notified

body ascertains and attests that a specimen, representative of the
production envisaged, meets the provisions of the Directive that apply
to it.
The application for the EC type-examination shall be lodged by the
manufacturer or his authorized representative established within the
Community with a notified body of his choice.
The application shall include:
- the name and address of the manufacturer and, if the application is
lodged by the authorized representative, his name and address in
addition,
~ a written declaration that the same application has not been lodged
with any other notified body,
~ the technical documentation, as described in point 3.
The applicant shall place at the disposal of the notified body a specimen,
representative of the production envisaged and hereinafter called ‘type’
[1]. The notified body may request further specimens if needed for
carrying out the test programme.
The technical documentation shall enable the conformity of the product
with the essential requirements of theDirective to be assessed. It shall, as
far as relevant forsuch assessment, cover the design, manufacture and
operation of the product.
For example, the documentation shall contain as far as is relevant for
assessment:
— a general type-description sufficient to identify the product pre-
ferably by provision of photographs,
- design and manufacturing drawings and lists of components, sub-
assemblies, circuits, etc.,
- descriptions and explanations necessary for the understanding of
said drawings and lists and the operation of the product,
~ a list of the standards referred to in Article 6, applied in full or in
part, and descriptions of the solutions adopted to meet the essential
requirements of the Directive when the standards referred to in
Article 6 have not been applied,
_ results of examinations carried out, etc.,
= test reports,
- proposed user information or handbook.
The notified body shall:
4.1. examine the technical documentation, verify that the type has been
manufactured in conformity with it and identify the elements which
91/263/EEC 62
have been designed in accordance with the relevant provisions of

the standards referred to in Article 6 (1), as well as the components
of those standards;
4.2. perform, or have performed, the appropriate examinations and
necessary tests to check whether the solutions adopted by the
manufacturer meet the essential requirements of the Directive
which are specified in Article 4 (a) and (b);
necessary tests to check that the type meets the relevant common
technical regulations specified in Article 6 (2);
4.4. agree with the applicant on the location where the examinations and
necessary tests are to be carried out.
Where the type meets the provisions of the Directive, the notified body
shall issue an EC type-examination certificate to the applicant. The
certificate/ shall contain the name and address of the manufacturer,
conclusions of the examination, conditions for its validity and the
necessary data for identification of the approved type.
A list of the relevant parts of the technical documentation shall be
annexed to the certificate and a copy kept by the notified body.
The applicant shall inform the notified body that holds the technical
documentation concerning the EC type-examination certificate of all
modifications to the approved product which must receive additional
approval where such changes may affect the conformity with the essential
requirements or the prescribed conditions for use of the product. This
additional approval is given in the form of an addition to the original EC
type-examination certificate.
Each notified body shall communicate to the other notified bodies the
relevant information concerning the EC type-examination certificates
and additions issued and withdrawn.
The other notified bodies may request copies of the EC type-examination
certificates and/or their additions. The Annexes to the certificate shall be
kept at the disposal of the other notified bodies.
The manufacturer or his authorized representative shall keep with the
technical documentation copies of EC type-examination certificates and
their additions for a period ending at least 10 years after the last product
has been manufactured.
Where neither the manufacturer nor his authorized representative is
established within the Community, the obligation to keep the technical
documentation available shall be the responsibility of the person who
places the product on the Community market.
(1) A type may cover several versions of the product provided that the
differences between the versions do not affect the level of safety and the
other requirements concerning the performance of the product.
Telecommunications
ANNEX II
Conformity to type
Conformity to type is that part of the procedure whereby the manufac-

turer or his authorized representative established within the Community
ensures and declares that the products concerned are in conformity with
the type as described in the EC type-examination certificate and satisfy
the requirements of the Directive that applies to them. The manufacturer
shall affix the marks referred to in Article 11 (1) to each product and draw
up a written declaration of conformity to type.
The manufacturer shall take all measures necessary to ensure that the
manufacturing process assures compliance of the manufactured products
with the type as described in the EC type-examination certificate and
with the requirements of the Directive that apply to them.
The manufacturer or his authorized representative shall keep a copy of
the declaration of conformity for a period ending at least 10 years after
the last product has been manufactured.
established within the Community, the obligation to keep the declaration
of conforming to type available shall be the responsibility of the person
who places the product on the Community market.
A notified body chosen by the manufacturer shall carry out, or have
carried out, product checks at random intervals. An adequate sample of
the final products, which may be taken on site by the notified body or on
its behalf, shall be examined and appropriate tests shall be carried out to
check the conformity of products with the relevant requirements of the
Directive. In those cases where one or more of the products checked do
not conform, the notified body shall take appropriate measures.
ANNEX III
Production quality assurance
Production quality assurance is the procedure whereby the manufacturer

who satisfies the obligations of point 2 ensures and declares that the
products concerned are in conformity with the type as described in the
EC type-examination certificate and satisfy the requirements of the
Directive that apply to them. The manufacturer shall affix the marks
referred to in Article 11 (1) to each product and draw up a written
declaration of conformity to type.
The manufacturer shall operate an approved quality system for produc-
tion, final product inspection and testing as specified in point 3 and shall
be subject to monitoring as specified in point 4.
91/263/EEC 64
3. Quality system
3.15 The manufacturer shall lodge an application for assessment of his
quality system with a notified body of his choice, for the products
concerned.
~ all relevant information for the product category envisaged,
- the documentation concerning the quality system,
— if applicable, the technical documentation of the approved
type and a copy of the EC type-examination certificate.
Bie: The quality system shall ensure compliance of the products with the
type as described in the EC type-examination certificate and with
the requirements of the Directive that apply to them.
All the element, requirements and, provisions adopted by the
manufacturer shall be documented in a systematic and orderly
manner in the form of written policies, procedures and instructions.
The quality system documentation must permit a consistent inter-
pretation of the quality programmes, plan, manuals and records.
It shall contain in particular an adequate description of:
- the quality objectives and the organizational structure, re-
sponsibilities and powers of the management with regard to
product quality,
- the manufacturing, quality control and quality assurance
techniques, processes and systematic actions that will be used,
— the examinations and tests will be carried out before, during
and after manufacture, and the frequency with which they will
be carried out,
~ the quality records, such as inspection reports and test data,
calibration data, qualification reports of the personnel con-
cerned, €tc:,
- the means to monitor the achievement of the required product
quality and the effective operation of the quality system.
ones The notified body shall assess the quality system to determine
whether it satisfies the requirements referred to in point 3.2. It shall
presume conformity with these requirements in respect of quality
systems that implement the relevant harmonized standard [1].
The auditing team shall have at least one member with experience
of evaluation in the product technology concerned. The evaluation
procedure shall include an inspection visit to the manufacturer’s
premises.
The decision shall be notified to the manufacturer. The notification
shall contain the conclusions of the examination and the reasoned
assessment decision.
3.4. The manufacturer shall undertake to fulfil the obligations arising

out of the quality system as approved and to uphold it so that it
remains adequate and efficient.
The manufacturer or his authorized representative shall keep the
notified body that has approved the quality system informed of any
intended updating of the quality system.
The notified body shall evaluate the modifications proposed and
decide whether the amended quality system will still satisfy the
requirements referred to in point 3.2. or whether a re-assessment is
required.
It shall notify its decision to the manufacturer. The notification shall
contain the conclusions of the examination and the reasoned
Surveillance under the responsibility of the notified body
4.1. The purpose of surveillance is to make sure that the manufacturer
duly fulfils the obligations arising out of the approved quality
system.
4.2. The manufacturer shall allow the notified body access for inspec-
tion purpose to the locations of manufacture, inspection and
testing, and storage and shall provide it with all necessary informa-
tion, in particular:
- the quality system documentation,
— the quality records, such as inspection reports and test data,
Cemmedmcle,
4.3. The notified body shall carry out audits at reasonable intervals to
make sure that the manufacturer maintains and applies the quality
system and shall provide an audit report to the manufacturer.
4.4. Additionally, the notified body may pay unexpected visits to the
manufacturer. During such visits the notified body may carry out,
or cause to be carried out, tests to verify that the quality system is
functioning correctly, if necessary. The notified body shall provide
the manufacturer with a visit report and, if a test has taken place,
with a report.
The manufacturer shall, for a period ending at least 10 years after the last
product has been manufactured, keep at the disposal of the national
authorities:
_ the documentation referred to in the second indent of point 3.1.,
~ the updating referred to in the second paragraph of point 3.4.,
- the decisions and reports from the notified body which are referred
to in the final paragraph of points 3.4., 4.3. and 4.4.
Each notified body referred to in Article 10 (1) shall make available to the
other notified bodies referred to in that Article the relevant information
concerning the quality system approvals issued and withdrawn.
91/263/EEC 66
(1) This harmonized standard will be EN 29002, supplemented, if

necessary, to take into account the specific nature of the procedure
for which it is implemented.
ANNEX IV
Full quality assurance
Full quality assurance is the procedure whereby the manufacturer who

satisfies the obligations of point 2 ensures and declares that the products
concerned satisfy the requirements of the Directive that apply to them.
The manufacturer shall affix the marks referred to in Article 11 (1) to
each product and draw up a written declaration of conformity.
The manufacturer shall operate an approved quality system for design,
manufacture and final product inspection and testing as specified in point
3 and shall be subject to surveillance as specified in point 4.
Quality system
3.1. The manufacturer shall lodge an application for assessment of his
quality system with a notified body.
— all relevant information for the products envisaged,
- the quality system’s documentation.
3.2. The quality system shall ensure compliance of the products with the
requirements of the Directive that apply to them.
All the elements, requirements and provisions adopted by the
This quality system documentation shall ensure a common under-
standing of the quality policies and procedures such as a quality
programmes, plans, manuals and records.
— the quality objectives and the organizational structure, re-
design and product quality,
— the technical specifications, including the harmonized stan-
dards and technical regulations as well as relevant test
specifications that will be applied and, where the standards
referred to in Article 6 (1) will not be applied in full, the means
will be used to ensure that the essential requirements of the
Directive that apply to the products will be met,
~ the design control and design verification techniques, pro-
cesses and systematic actions that will be used when designing
the products pertaining to the product category covered,
~ the corresponding manufacturing, quality control and quality
assurance techniques, processes and systematic actions that

will be used,
- the examinations and tests will be carried out before, during
and after manufacture, and the frequency with which they will
be carried out; as well as the results of the tests carried out
before manufacture where appropriate,
— the means by which it is ensured that the test and examination
facilities respect the appropriate requirements for the perfor-
mance of the necessary test,
- the quality records, such as inspection reports and test data,
cerned, etc.,
~ the means to monitor the achievement of the required design
and product quality and the effective operation of the quality
system.
The notified body shall asses the quality system to determine
presume compliance with these requirements in respect of quality
systems that implement the relevant harmonized standard (1).
The notified body shall assess in particular whether the quality
control system ensures conformity of the products with the require-
ments of the Directive in the light of the relevant documentation
supplied in respect of points 3.1. and 3.2. including, where relevant,
test results supplied by the manufacturer.
The auditing team shall have at least one member experienced as an
assessor in the product technology concerned. The evaluation
procedure shall include an assessment visit to the manufacturer’s
premises.
The manufacturer or his authorized representative shall keep the
requirements referred to in point 3.2. or whether a re-assessment is
required.
91/263/EEC 68
EC surveillance under the responsibility of the notified body

system.
tion purposes to the locations of design, manufacture, inspection
and testing, and storage and shall provide it with all necessary
information, in particular:
- the quality records as foreseen by the design part of the
quality system, such as results of analyses, calculations, tests,
etc:
- the quality records as foreseen by the manufacturing part of
the quality system, such as inspection reports and test data,
Cennedcte.
manufacturer. At the time of such visits, the notified body may
carry out tests or have them carried out in order to check the proper
functioning of the quality system where necessary; it shall provide
the manufacturer with a visit report and, if a test has been carried
out, with a test report.
The manufacturer shall, for a period ending at least 10 years after the last
authorities:
— the documentation referred to in the second indent of point 3.1.,
— the updating referred to in the second paragraph of point 3.4.,
- the decisions and reports from the notified body which are referred
to in the final paragraph of points 3.4., 4.3. and 4.4.
Each notified body referred to in Article 10(1) shall make available to the
concerning quality system approvals including references to the pro-
duct(s) concerned, issued and withdrawn.
(1) This harmonized standard shall be EN 29001, supplemented, if
necessary, to take into account the specific nature of the products for
which it is implemented.
ANNEX V
Minimum criteria to be taken into account by Member States when
designating notified bodies in accordance with Article 10 (1)
The notified body, its director and the staff responsible for carrying out
the tasks for which the notified body has been designated shall not be a
designer, manufacturer, supplier or installer of terminal equipment, or a
network operator or a service provider, nor the authorised representative
of any of such parties. They shall not become directly involved in the
design, construction, marketing or maintenance of terminal equipment,
nor represent the parties engaged in these activities. This does not
preclude the possibility of exchanges of technical information between
the manufacturer and the notified body.
The notified body and its staff must carry out the tasks for which the
notified body has been designated with the highest degree of professional
integrity and technical competence and must be free from all pressures
and inducements, particularly financial, which might influence their
judgement or the results of any inspection, especially from persons or
groups of persons with an interest in such results.
The notified body must have at its disposal the necessary staff and
facilities to enable it to perform properly the administrative and technical
work associated with the tasks for which it has been designated.
The staff responsible for inspections must have: -sound technical and
professional training, -satisfactory knowledge of the requirements of the
tests or inspections that are carried out and adequate experience of such
tests or inspections, -the ability to draw up the certificates, records and
reports required to authenticate the performance of the inspections.
The impartiality of inspection staff must be guaranteed. Their remunera-
tion must not depend on the number of tests or inspections carried out
nor on the results of such inspections.
The notified body must take out liability insurance unless its liability is
assumed by the State in accordance with national law, or the Member
State itself is directly responsible.
The staff of the notified body is bound to observe professional secrecy
with regard to all information gained in carrying out its tasks (except vis-
a-vis the competent administrative authorities of the State in which its
activities are carried out) under this Directive or any provision of
national law giving effect thereto.
91/263/EEC YO
ANNEX VI
Marking for terminal equipment referred to in Article 11 (1)
Symbol of the notified body
ANNEX VII
Marking for equipment referred to in Article 11 (4)
ANNEX VIII
Model of a declaration referred to in Article 2 (1)
The manufacturer/supplier [1] ... Declares that [2] ... is not intended to be
connected to a public telecommunications network. The connection of such
equipment to a public telecommunications network in the Community Mem-
ber State will be in violation of the national law implementing Directive 91/
263/EEC on the approximation of the laws of the Member States concerning
telecommunication terminal equipment, including the mutual recognition of
their conformity.
DATE, PLACE AND SIGNATURE

(1) Name and address.
(2) Equipment identification.
differences between the versions do not affect the level of safety and the
other requirements concerning the performance of the product.
GUIDELINES ON THE APPLICATION OF EEC COMPETITON RULES IN THE
TELECOMMUNICATIONS SECTOR (91/C 233/02)
Official Journal No. C 233, 6/09/1991
PREFACE
These guidelines aim at clarifying the application of Community competition
rules to the market participants in the telecommunications sector. They must
be viewed in the context of the special conditions of the telecommunications
sector, and the overall Community telecommunications policy will be taken
into account in their application. In particular, account will have to be taken of
the actions the Commission will be in a position to propose for the
telecommunications industry as a whole, actions deriving from the assessment
of the state of play and issues at stake for this industry, as has already been the
case for the European electronics and information technology industry in the
communication of the Commission of 3 April 1991 [1].
A major political aim, as emphasized by the Commission, the Council, and the
European Parliament, must be the development of efficient Europe-wide
networks and services, at the lowest cost and of the highest quality, to provide
the European user in the single market of 1992 with a basic infrastructure for
efficient operation.
The Commission has made it clear in the past that in this context it is
considered that liberalization and harmonization in the sector must go hand
in hand.
Given the competition context in the telecommunications sector, the telecom-
munications operators should be allowed, and encouraged, to establish the
necessary cooperation mechanisms, in order to create — or ensure — Commu-
nity-wide full interconnectivity between public networks, and where required
between services to enable European users to benefit from a wider range of
better and cheaper telecommunications services.
This can and has to be done in compliance with, and respect of, EEC
competition rules in order to avoid the diseconomies which otherwise could
result. For the same reasons, operators and other firms that may be in a
dominant market position should be made aware of the prohibition of abuse of
such positions.
The guidelines should be read in the light of this objective. They set out to
clarify, inter alia, which forms of cooperation amount to undesirable collusion,
and in this sense they list what is not acceptable. They should therefore be seen
as one aspect of an overall Community policy towards telecommunications,
and notably of policies and actions to encourage and stimulate those forms of
cooperation which promote the development and availability of advanced
communications for Europe.
The full application of competition rules forms a major part of the Commu-
nity’s overall approach to telecommunications. These guidelines should help
Th
market participants to shape their strategies and arrangements for Europe-

wide networks and services from the outset in a manner which allows them to
be fully in line with these rules. In the event of significant changes in the
conditions which prevailed when the guidelines were drawn up, the Commis-
sion may find it appropriate to adapt the guidelines to the evolution of the
situation in the telecommunications sector.
I. SUMMARY
1. The Commission of the European Communities in its Green Paper on the

development of the common market for telecommunications services and
equipment (COM(87)290) dated 30 June 1987 proposed a number of Commu-
nity positions. Amongst these, positions (H) and (I) are as follows:
‘(H) strict continuous review of operational (commercial) activities of
telecommunications administrations according to Articles 85, 86 and 90
of the EEC Treaty. This applies in particular to practices of cross-
subsidization of activities in the competitive services sector and of
activities in manufacturing;
(J) strict continuous review of all private providers in the newly opened
sectors according to Articles 85 and 86, in order to avoid the abuse of
dominant positions;’.
2. These positions were restated in the Commission’s document of 9 February
1988 ‘Implementing the Green Paper on the development of the common
market for telecommunications services and equipment/state of discussions
and proposals by the Commission’ (COM(88)48). Among the areas where the
development of concrete policy actions is now possible, the Commission
indicated the following:
‘Ensuring fair conditions of competition:
Ensuring an open competitive market makes continuous review of the tele-

communications sector necessary.
The Commission intends to issue guidelines regarding the application of

competition rules to the telecommunications sector and on the way that the
review should be carried out.
This is the objective of this communication.
The telecommunications sector in many cases requires cooperation agree-
ments, inter alia, between telecommunications organizations (TOs) in order to
ensure network and services interconnectivity, one-stop shopping and one-stop
billing which are necessary to provide for Europe-wide services and to offer
optimum service to users. These objectives can be achieved, inter alia, by TOs
cooperating — for example, in those areas where exclusive or special rights for
provision may continue in accordance with Community law, including compe-
tition law, as well as in areas where optimum service will require certain
DV/G238V02° 73
features of cooperation. On the other hand the overriding objective to develop

the conditions for the market to provide European users with a greater variety
of telecommunications services, of better quality and at lower cost requires the
introduction and safeguarding of a strong competitive structure. Competition
plays a central role for the Community, especially in view of the completion of
the single market for 1992. This role has already been emphasized in the Green
Paper.
The single market will represent a new dimension for telecoms operators and
users. Competition will give them the opportunity to make full use of
technological development and to accelerate it, and encouraging them to
restructure and reach the necessary economies of scale to become competitive
not only on the Community market, but worldwide.
With this in mind, these guidelines recall the main principles which the
Commission, according to its mandate under the Treaty’s competition rules,
has applied and will apply in the sector without prejudging the outcome of any
specific case which will have to be considered on the facts.
The objective is, inter alia, to contribute to more certainty of condititions for
investment in the sector and the development of Europe-wide services.
The mechanisms for creating certainty for individual cases (apart from
complaints and ex-officio investigations) are provided for by the notification
and negative clearance procedures provided under Regulation No 17, which
give a formal procedure for clearing cooperation agreements in this area
whenever a formal clearance is requested. This is set out in further detail in
this communication.
Il. INTRODUCTION
3. The fundamental technological development worldwide in the telecommu-

nications sector [2] has caused considerable changes in the competition
conditions. The traditional monopolistic administrations cannot alone take up
the challenge of the technological revolution. New economic forces have
appeared on the telecoms scene which are capable of offering users the
numerous enhanced services generated by the new technologies. This has given
rise to and stimulated a wide deregulation process propagated in the Commu-
nity with various degrees of intensity.
This move is progressively changing the face of the European market structure.
New private suppliers have penetrated the market with more and more
transnational value-added services and equipment. The telecommunications
administrations, although keeping a central role as public services providers,
have acquired a business-like way of thinking. They have started competing
dynamically with private operators in services and equipment. Wide restructur-
ing, through mergers and joint ventures, is taking place in order to compete
more effectively on the deregulated market through economies of scale and

rationalization. All these events have a multiplier effect on technological
progress.
4. In the light of this, the central role of competition for the Community
appears clear, especially in view of the completion of the single market for
1992. This role has already been emphasized in the Green Paper.
5. In the application of competition rules the Commission endeavours to
avoid the adopting of State measures or undertakings erecting or maintaining
artificial barriers incompatible with the single market. But it also favours all
forms of cooperation which foster innovation and economic progress, as
contemplated by competition law. Pursuing effective competition in telecoms
is not a matter of political choice. The choice of a free market and a
competition-oriented economy was already envisaged in the EEC Treaty, and
the competition rules of the Treaty are directly applicable within the Commu-
nity. The abovementioned fundamental changes make necessary the full
application of competition law.
6. There is a need for more certainty as to the application of competition
rules. The telecommunication administrations together with keeping their
duties of public interest, are now confronted with the application of these rules
practically without transition from a long tradition of legal protection. Their
scope and actual implications are often not easily perceivable. As the technol-
ogy is fast-moving and huge investments are necessary, in order to benefit from
the new possibilities on the market-place, all the operators, public or private,
have to take quick decisions, taking into account the competition regulatory
framework.
7. This need for more certainty regarding the application of competition rules
is already met by assessments made in several individual cases. However,
assessments of individual cases so far have enabled a response to only some of
the numerous competition questions which arise in telecommunications.
Future cases will further develop the Commission’s practice in this sector.
Purpose of these guidelines
8. These guidelines are intended to advise public telecommunications opera-
tors, other telecommunications service and equipment suppliers and users, the
legal profession and the interested members of the public about the general
legal and economic principles which have been and are being followed by the
Commission in the application of competition rules to undertakings in the
telecommunications sector, based on experience gained in individual cases in
compliance with the rulings of the Court of Justice of the European Commu-
nities.
9. The Commission will apply these principles also to future individual cases
in a flexible way, and taking the particular context of each case into account.
These guidelines do not cover all the general principles governing the
DIE 23g702 Wd
application of competition rules, but only those which are of specific relevance
to telecommunication issues. The general principles of competition rules not
specifically connected with telecommunications but entirely applicable to these
can be found, inter alia, in the regulatory acts, the Court judgments and the
Commission decisions dealing with the individual cases, the Commission’s
yearly reports on competition policy, press releases and other public informa-
tion originating from the Commission.
10. These guidelines do not create enforceable rights. Moreover, they do not
prejudice the application of EEC competition rules by the Court of Justice of
the European Communities and by national authorities (as these rules may be
directly applied in each Member State, by the national authorities, adminis-
trative or judicial).
11. A change in the economic and legal situation will not automatically bring
about a simultaneous amendment to the guidelines. The Commission, however,
reserves the possibility to make such an amendment when it considers that
these guidelines no longer satisfy their purpose, because of fundamental and/or
repeated changes in legal precedents, methods of applying competition rules,
and the regulatory, economic and technical context.
12. These guidelines essentially concern the direct application of competition
rules to undertakings, i.e. Articles 85 and 86 of the EEC Treaty. They do not
concern those applicable to the Member States, in particular Articles 5 and 90
(1) and (3). Principles ruling the application of Article 90 in telecommunica-
tions are expressed in Commission Directives adopted under Article 90 (3) for
the implementation of the Green Paper [3].
Relationship between competition rules applicable to undertakings and those
applicable to Member States
13. The Court of Justice of the European Communities [4] has ruled that
while it is true that Articles 85 and 86 of the Treaty concern the conduct of
undertakings and not the laws or regulations of the Member States, by virtue of
Article 5 (2) of the EEC Treaty, Member States must not adopt or maintain in
force any measure which could deprive those provisions of their effectiveness.
The Court has stated that such would be the case, in particular, if a Member
State were to require or favour prohibited cartels or reinforce the effects thereof
or to encourage abuses by dominant undertakings.
If those measures are adopted or maintained in force vis-a-vis public under-
takings or undertakings to which a Member State grants special or exclusive
rights, Article 90 might also apply.
14. When the conduct of a public undertaking or an undertaking to which a
Member State grants special or exclusive rights arises entirely as a result of the
exercise of the undertaking’s autonomous behaviour, it can only be caught by
Articles 85 and 86.
When this behaviour is imposed by a mandatory State measure (regulative or

administrative), leaving no discretionary choice to the undertakings concerned,
Article 90 may apply to the State involved in association with Articles 85 and
86. In this case Articles 85 and 86 apply to the undertakings’ behaviour taking
into account the constraints to which the undertakings are submitted by the
mandatory State measure.
Ultimately, when the behaviour arises from the free choice of the undertakings
involved, but the State has taken a measure which encourages the behaviour or
strengthens its effects, Articles 85 and/or 86 apply to the undertakings’
behaviour and Article 90 may apply to the State measure. This could be the
case, inter alia, when the State has approved and/or legally endorsed the result
of the undertakings’ behaviour (for instance tariffs).
These guidelines and the Article 90 Directives complement each other to a
certain extent in that they cover the principles governing the application of the
competition rules: Articles 85 and 86 on the one hand, Article 90 on the other.
Application of competition rules and other Community law, including open

network provision (ONP) rules
15. Articles 85 and 86 and Regulations implementing those Articles in
application of Article 87 of the EEC Treaty constitute law in force and
enforceable throughout the Community. Conflicts should not arise with other
Community rules because Community law forms a coherent regulatory frame-
work. Other Community rules, and in particular those specifically governing
the telecommunications sector, cannot be considered as provisions implement-
ing Articles 85 and 86 in this sector. However it is obvious that Community
acts adopted in the telecommunications sector are to be interpreted in a way
consistent with competition rules, so to ensure the best possible implementa-
tion of all aspects of the Community telecommunications policy.
16. This applies, inter alia, to the relationship between competition rules
applicable to undertakings and the ONP rules. According to the Council
Resolution of 30 June 1988 on the development of the common market for
telecommunications services and equipment up to 1992 [5], ONP comprises the
‘rapid definition, by Council Directives, of technical conditions, usage condi-
tions, and tariff principles for open network provision, starting with harmo-
nized conditions for the use of leased lines’. The details of the ONP procedures
have been fixed by Directive 90/387/EEC on the establishment of the internal
market for telecommunications services through the implementation of open
network provision, adopted by Council on 28 June 1990 under Article 100a of
the EEC Treaty [6].
17. ONP has a fundamental role in providing European-wide access to

Community-wide interconnected public networks. When ONP harmonization
is implemented, a network user will be offered harmonized access conditions
throughout the EEC, whichever country they address. Harmonized access will
DP C233/02 7]
be ensured in compliance with the competition rules as mentioned above, as

the ONP rules specifically provide.
ONP rules cannot be considered as competition rules which apply to States

and/or to undertakings’ behaviour. ONP and competition rules therefore
constitute two different but coherent sets of rules. Hence, the competition rules
have full application, even when all ONP rules have been adopted.
18. Competition rules are and will be applied in a coherent manner with
Community trade rules in force. However, competition rules apply in a non-
discriminatory manner to EEC undertakings and to non-EEC ones which have
access to the EEC market.
III. COMMON PRINCIPLES OF APPLICATION OF

ARTICLES 85 AND 86
Equal application of Articles 85 and 86

19. Articles 85 and 86 apply directly and throughout the Community to all
undertakings, whether public or private, on equal terms and to the same extent,
apart from the exception provided in Article 90 (2) [7].
The Commission and national administrative and judicial authorities are
competent to apply these rules under the conditions set out in Council
Regulation No 17 [8].
20. Therefore, Articles 85 and 86 apply both to private enterprises and public
telecommunications operators embracing telecommunications administrations
and recognized private operating agencies, hereinafter called ‘telecommunica-
tions organizations’ (TOs).
TOs are undertakings within the meaning of Articles 85 and 86 to the extent
that they exert an economic activity, for the manufacturing and/or sale of
telecommunications equipment and/or for the provision of telecommunica-
tions services, regardless of other facts such as, for example, whether their
nature is economic or not and whether they are legally distinct entities or form
part of the State organization [9]. Associations of TOs are associations of
undertakings within the meaning of Article 85, even though TOs participate as
undertakings in organizations in which governmental authorities are also
represented.
Articles 85 and 86 apply also to undertakings located outside the EEC when
restrictive agreements are implemented or intended to be implemented or
abuses are committed by those undertakings within the common market to
the extent that trade between Member States is affected [10].
Competition restrictions justified under Article 90 (2) or by essential

requirements
21. The exception provided in Article 90 (2) may apply both to State
measures and to practices by undertakings. The Services Directive 90/388/
EEC, in particular in Article 3, makes provision for a Member State to impose
specified restrictions in the licences which it can grant for the provision of
certain telecommunications services. These restrictions may be imposed under
Article 90 (2) or in order to ensure the compliance with State essential
requirements specified in the Directive.
22. As far as Article 90 (2) is concerned, the benefit of the exception provided
by this provision may still be invoked for a TO’s behaviour when it brings about
competition restrictions which its Member State did not impose in application
of the Services Directive. However, the fact should be taken into account that
in this case the State whose function is to protect the public and the general
economic interest, did not deem it necessary to impose the said restrictions.
This makes particularly hard the burden of proving that the Article 90 (2)
exception still applies to an undertakings’s behaviour involving these restric-
tions.
23. The Commission infers from the case law of the Court of Justice [11] that
it has exclusive competence, under the control of the Court, to decide that the
exception of Article 90 (2) applies. The national authorities including judicial
authorities can assess that this exception does not apply, when they find that
the competition rules clearly do not obstruct the performance of the task of
general economic interest assigned to undertakings. When those authorities
cannot make a clear assessment in this sense they should suspend their decision
in order to enable the Commission to find that the conditions for the
application of that provision are fulfilled.
24. As to measures aiming at the compliance with ‘essential requirements’

within the meaning of the Services Directive, under Article 1 of the latter [12],
they can only be taken by Member States and not by undertakings.
The relevant market
25. In order to assess the effects of an agreement on competition for the
purposes of Article 85 and whether there is a dominant position on the market
for the purposes of Article 86, it is necessary to define the relevant market(s),
product or service market(s) and geographic market(s), within the domain of
telecommunications. In a context of fast-moving technology the relevant
market definition is dynamic and variable.
(a) The product market
26. A product market comprises the totality of the products which, with
respect to their characteristics, are particularly suitable for satisfying constant
needs and are only to a limited extent interchangeable with other products in
terms of price, usage and consumer preference. An examination limited to the
OIE 233/02 FO
objective characteristics only of the relevant products cannot be sufficient: the

competitive conditions and the structure of supply and demand on the market
must also be taken into consideration [13].
The Commission can precisely define these markets only within the framework of
individual cases.
27. For the guidelines’ purpose it can only be indicated that distinct service
markets could exist at least for terrestrial network provision, voice commu-
nication, data communication and satellites. With regard to the equipment
market, the following areas could all be taken into account for the purposes of
market definition: public switches, private switches, transmission systems and
more particularly, in the field of terminals, telephone sets, modems, telex
terminals, data transmission terminals and mobile telephones. The above
indications are without prejudice to the definition of further narrower distinct
markets. As to other services — such as value-added ones — as well as terminal
and network equipment, it cannot be specified here whether there is a market
for each of them or for an aggregate of them, or for both, depending upon the
interchangeability existing in different geographic markets. This is mainly
determined by the supply and the requirements in those markets.
28. Since the various national public networks compete for the installation of
the telecommunication hubs of large users, market definition may accordingly
vary. Indeed, large telecommunications users, whether or not they are service
providers, locate their premises depending, inter alia, upon the features of the
telecommunications services supplied by each TO. Therefore, they compare
national public networks and other services provided by the TOs in terms of
characteristics and prices.
29. As to satellite provision, the question is whether or not it is substantially
interchangeable with terrestrial network provision:
(a) communication by satellite can be of various kinds: fixed service (point to
point communication), multipoint (point to multipoint and multipoint to
multipoint), one-way or two-way;
(b) satellites’ main characteristics are: coverage of a wide geographic area
not limited by national borders, insensitivity of costs to distance,
flexibility and ease of networks deployment, in particular in the very
small aperture terminals (VSAT) systems;
(c) satellites’ uses can be broken down into the following categories: public
switched voice and data transmission, business value-added services and
broadcasting;
(d) a satellite provision presents a broad interchangeability with the terres-
trial transmission link for the basic voice and data transmission on long
distance. Conversely, because of its characteristics it is not substantially
interchangeable but rather complementary to terrestrial transmission
links for several specific voice and data transmission uses. These uses
are: services to peripheral or lessdeveloped regions, links between non-
contiguous countries, reconfiguration of capacity and provision of

routing for traffic restoration. Moreover, satellites are not currently
substantially interchangeable for direct broadcasting and multipoint
private networks for value-added business services. Therefore, for all
those uses satellites should constitute distinct product markets. Within
satellites, there may be distinct markets.
30. In mobile communications distinct services seem to exist such as cellular
telephone, paging, telepoint, cordless voice and cordless data communication.
Technical development permits providing each of these systems with more and
more enhanced features. A consequence of this is that the differences between
all these systems are progressively blurring and their interchangeability
increasing. Therefore, it cannot be excluded that in future for certain uses
several of those systems be embraced by a single product market. By the same
token, it is likely that, for certain uses, mobile systems will be comprised in a
single market with certain services offered on the public switched network.
(b) The geographic market

31. A geographic market is an area:
- where undertakings enter into competition with each other, and
~ where the objective conditions of competition applying to the product or
service in question are similar for all traders [14].
32. Without prejudice to the definition of the geographic market in individual
cases, each national territory within the EEC seems still to be a distinct
geographic market as regards those relevant services or products, where:
= the customer’s needs cannot be satisfied by using a non-domestic service,
— there are different regulatory conditions of access to services, in parti-
cular special or exclusive rights which are apt to isolate national
territories,
- as to equipment and network, there are no Community-common stan-
dards, whether mandatory or voluntary, whose absence could also isolate
the national markets. The absence of voluntary Community-wide stan-
dards shows different national customers’ requirements.
However, it is expected that the geographic market will progressively extend to
the EEC territory at the pace of the progressive realization of a single EEC
market.
33. It has also to be ascertained whether each national market or a part

thereof is a substantial part of the common market. This is the case where the
services of the product involved represent a substantial percentage of volume
within the EEC. This applies to all services and products involved.
34. As to satellite uplinks, for cross-border communication by satellite the

uplink could be provided from any of several countries. In this case, the
917G. 233/02 781
geographic market is wider than the national territory and may cover the whole
EEC.
As to space segment capacity, the extension of the geographic market will
depend on the power of the satellite and its ability to compete with other
satellites for transmission to a given area, in other words on its range. This can
be assessed only case by case.
35. As to services in general as well as terminal and network equipment, the

Commission assesses the market power of the undertakings concerned and the
result for EEC competition of the undertakings’ conduct, taking into account
their interrelated activities and interaction between the EEC and world
markets. This is even more necessary to the extent that the EEC market is
progressively being opened. This could have a considerable effect on the
structure of the markets in the EEC, on the overall competitivity of the
undertakings operating in those markets, and in the long run, on their capacity
to remain independent operators.
IV. APPLICATION OF ARTICLE 85
36. The Commission recalls that a major policy target of the Council
Resolution of 30 June 1988 on the development of the common market for
telecommunications services and equipment up to 1992 was that of:
Oe stimulating European cooperation at all levels, as far as compatible with

Community competition rules, and particularly in the field of research and
development, in order to secure a strong European presence on the telecom-
munications markets and to ensure the full participation of all Member States’.
In many cases Europe-wide services can be achieved by TOs’ cooperation — for
example, by ensuring interconnectivity and interoperability
(i) in those areas where exclusive or special rights for provision may
continue in accordance with Community law and in particular with the
Services Directive 90/388/EEC; and
(ii) in areas where optimum service will require certain features of coopera-
tion, such as so-called ‘one-stop shopping’ arrangements, i.e. the possibi-
lity of acquiring Europe-wide services at a single sales point.
The Council is giving guidance, by Directives, Decisions, recommendations
and resolutions on those areas where Europe-wide services are most urgently
needed: such as by recommendation 86/659/EEC on the coordinated intro-
duction of the integrated services digital network (ISDN) in the European
Community [15] and by recommendation 87/371/EEC on the coordinated
introduction of public pan-European cellular digital land-based mobile com-
munications in the Community [16].
The Commission welcomes and fully supports the necessity of cooperation

particularly in order to promote the development of trans-European services
and strengthen the competitivity of the EEC industry throughout the Commu-
nity and in the world markets. However, this cooperation can only attain that
objective if it complies with Community competition rules. Regulation No 17
provides well-defined clearing procedures for such cooperation agreements.
The procedures foreseen by Regulation No 17 are:
(i) the application for negative clearance, by which the Commission certifies
that the agreements are not caught by Article 85, because they do not
restrict competition and/or do not affect trade between Member States;
and
(ii) the notification of agreements caught by Article 85 in order to obtain an
exemption under Article 85 (3). Although if a particular agreement is
caught by Article 85, an exemption can be granted by the Commission
under Article 85 (3), this is only so when the agreement brings about
economic benefits — assessed on the basis of the criteria in the said
paragraph 3 — which outweigh its restrictions on competition. In any
event competition may not be eliminated for a substantial part of the
products in question. Notification is not an obligation; but if, for reasons
of legal certainty, the parties decide to request an exemption pursuant to
Article 4 of Regulation No 17 the agreements may not be exempted until
they have been notified to the Commission.
37. Cooperation agreements may be covered by one of the Commission block
exemption Regulations or Notices [17]. In the first case the agreement is
automatically exempted under Article 85 (3). In the latter case, in the
Commission’s view, the agreement does not appreciably restrict competition
and trade between Member States and therefore does not justify a Commission
action. In either case, the agreement does not need to be notified; but it may be
notified in case of doubt. If the Commission receives a multitude of notifica-
tions of similar cooperation agreements in the telecommunications sector, it
may consider whether a specific block exemption regulation for such agree-
ments would be appropriate.
38. The categories of agreements [18] which seem to be typical in telecommu-

nications and may be caught by Article 85 are listed below. This list provides
examples only and is, therefore, not exhaustive. The Commission is thereby
indicating possible competition restrictions which could be caught by Article
85 and cases where there may be the possibility of an exemption.
39. These agreements may affect trade between Member States for the
following reasons:
(i) | services other than services reserved to TOs, equipment and spatial
segment facilities are traded throughout the EEC; agreements on these
services and equipment are therefore likely to affect trade. Although at
present cross-frontier trade is limited, there is potentially no reason to
DE 233/02 83
suppose that suppliers of such facilities will in future confine themselves

to their national market;
(11) as to reserved network services, one can consider that they also are traded
throughout the Community. These services could be provided by an
operator located in one Member State to customers located in other
Member States, which decide to move their telecommunications hub into
the first one because it is economically or qualitatively advantageous.
Moreover, agreements on these matters are likely to affect EEC trade at
least to the extent they influence the conditions under which the other
services and equipment are supplied throughout the EEC.
40. Finally, to the extent that the TOs hold dominant positions in facilities,
services and equipment markets, their behaviour leading to — and including the
conclusion of — the agreements in question could also give rise to a violation of
Article 86, if agreements have or are likely to have as their effect hindering the
maintenance of the degree of competition still existing in the market or the
growth of that competition, or causing the TOs to reap trading benefits which
they would not have reaped if there had been normal and sufficiently effective
competition.
A. Horizontal agreements concerning the provision of terrestrial facilities and
reserved services
41. Agreements concerning terrestrial facilities (public switched network or
leased circuits) or services (e.g. voice telephony for the general public) can
currently only be concluded between TOs because of this legal regime
providing for exclusive or special rights. The fact that the Services Directive
recognizes the possibility for a Member State to reserve this provision to
certain operators does not exempt those operators from complying with the
competition rules in providing these facilities or services. These agreements
may restrict competition within a Member State only where such exclusive
rights are granted to more than one provider.
42. These agreements may restrict the competition between TOs for retaining
or attracting large telecommunications users for their telecommunications
centres. Such ‘hub competition’ is substantially based upon favourable rates
and other conditions, as well as the quality of the services. Member States are
not allowed to prevent such competition since the Directive allows only the
granting of exclusive and special rights by each Member State in its own
territory.
43. Finally, these agreements may restrict competition in non-reserved
services from third party undertakings, which are supported by the facilities
in question, for example if they impose discriminatory or inequitable trading
conditions on certain users.
44. (aa) Price agreements: all TOs’ agreements on prices, discounting or
collection charges for international services, are apt to restrict the hub
competition to an appreciable extent. Coordination on or prohibition of

discounting could cause particularly serious restrictions. In situations of public
knowledge such as exists in respect of the tariff level, discounting could remain
the only possibility of effective price competition.
45. Inseveral cases the Court of Justice and the Commission have considered
price agreements among the most serious infringements of Article 85 [19].
While harmonization of tariff structures may be a major element for the
provision of Community-wide services, this goal should be pursued as far as
compatible with Community competition rules and should include definition of
efficient pricing principles throughout the Community. Price competition is a
crucial, if not the principal, element of customer choice and is apt to stimulate
technical progress. Without prejudice to any application for individual exemp-
tion that may be made, the justification of any ‘price agreement in terms of
Article 85 (3) would be the subject of very rigorous examination by the
Commission.
46. Conversely, where the agreements concern only the setting up of common
tariff structures or principles, the Commission may consider whether this
would not constitute one of the economic benefits under Article 85 (3) which
outweigh the competition restriction. Indeed, this could provide the necessary
transparency on tariff calculations and facilitate users’ decisions about traffic
flow or the location of headquarters or premises. Such agreements could also
contribute to achieving one of the Green Paper’s economic objectives — more
cost-orientated tariffs.
In this connection, following the intervention of the Commission, the CEPT
has decided to abolish recommendation PGT/10 on the general principles for
the lease of international telecommunications circuits and the establishment of
private international networks. This recommendation recommended, inter alia,
the imposition of a 30% surcharge or an access charge where third-party traffic
was carried on an international telecommunications leased circuit, or if such a
circuit was interconnected to the public telecommunications network. It also
recommended the application of uniform tariff coefficients in order to
determine the relative price level of international telecommunications leased
circuits. Thanks to the CEPT’s cooperation with the Commission leading to the
abolition of the recommendation, competition between telecoms operators for
the supply of international leased circuits is re-established, to the benefit of
users, especially suppliers of non-reserved services. The Commission had found
that the recommendation amounted to a price agreement between under-
takings under Article 85 of the Treaty which substantially restricted competi-
tion within the European Community [20].
47. (ab) Agreements on other conditions for the provision of facilities
These agreements may limit hub competition between the partners. Moreover,
they may limit the access of users to the network, and thus restrict third
DI G233/02 BS
undertakings’ competition as to non-reserved services. This applies especially

to the use of leased circuits. The abolished CEPT recommendation PGT/10 on
tariffs had also recommended restrictions on conditions of sale which the
Commission objected to. These restrictions were mainly:
= making the use of leased circuits between the customer and third parties
subject to the condition that the communication concern exclusively the
activity for which the circuit has been granted,
- a ban on subleasing,
— authorization of private networks only for customers tied to each other
by economic links and which carry out the same activity,
-- prior consultation between the TOs for any approval of a private network
and of any modification of the use of the network, and for any
interconnection of private networks.
For the purpose of an exemption under Article 85 (3), the granting of special
conditions for a particular facility in order to promote its development could be
taken into account among other elements. This could foster technologies which
reduce the costs of services and contribute to increasing competitiveness of
European industry structures. Naturally, the other Article 85 (3) requirements
should also be met.
48. (ac) Agreements on the choice of telecommunication routes.

These may have the following restrictive effects:
(i) tothe extent that they coordinate the TOs’ choice of the routes to be set up
in international services, they may limit competition between TOs as
suppliers to users’ communications hubs, in terms of investments and
production, with a possible effect on tariffs. It should be determined
whether this restriction of their business autonomy is sufficiently appreci-
able to be caught by Article 85. In any event, an argument for an
exemption under Article 85 (3) could be more easily sustained if common
routes designation were necessary to enable interconnections and, there-
fore, the use of a Europe-wide network;
(ii) to the extent that they reserve the choice of routes already set up to the
TOs, and this choice concerns one determined facility, they could limit
the use of other facilities and thus services provision possibly to the
detriment of technological progress. By contrast, the choice of routes
does not seem restrictive in principle to the extent that it constitutes a
technical requirement.
49. (ad) Agreements on the imposition of technical and quality standards on
the services provided on the public network
Standardization brings substantial economic benefits which can be relevant
under Article 85 (3). It facilitates inter alia the provision of pan-European
telecommunications services. As set out in the framework of the Community’s
approach to standardization, products and services complying with standards
may be used Community-wide. In the context of this approach, European

standards institutions have developed in this field (ETSI and CEN-Cenelec).
National markets in the EC would be opened up and form a Community
market. Service and equipment markets would be enlarged, hence favouring
economies of scale. Cheaper products and services are thus available to users.
Standardization may also offer an alternative to specifications controlled by
undertakings dominant in the network architecture and in non-reserved
services. Standardization agreements may, therefore, lessen the risk of abuses
by these undertakings which could block the access to the markets for non-
reserved services and for equipment. However, certain standardization agree-
ments can have restrictive effects on competition: hindering innovation,
freezing a particular stage of technical development, blocking the network
access of some users/service providers. This restriction could be appreciable,
for example when deciding to what extent intelligence will in future be located
in the network or continue to be permitted in customers’ equipment. The
imposition of specifications other than those provided for by Community law
could have restrictive effects on competition. Agreements having these effects
are, therefore, caught by Article 85.
The balance between economic benefits and competition restrictions 1s com-
plex. In principle, an exemption could be granted if an agreement brings more
openness and facilitates access to the market, and these benefits outweigh the
restrictions caused by it.
50. Standards jointly developed and/or published in accordance with the
ONP procedures carry with them the presumption that the cooperating TOs
which comply with those standards fulfil the requirement of open and efficient
access (see the ONP Directive mentioned in paragraph 16). This presumption
can be rebutted, inter alia, if the agreement contains restrictions which are not
foreseen by Community law and are not indispensable for the standardization
sought.
51. One important Article 85 (3) requirement is that users must also be
allowed a fair share of the resulting benefit. This is more likely to happen when
users are directly involved in the standardization process in order to contribute
to deciding what products or services will meet their needs. Also, the
involvement of manufacturers or service providers other than TOs seems a
positive element for Article 85 (3) purposes. However, this involvement must
be open and widely representative in order to avoid competition restrictions to
the detriment of excluded manufacturers or service providers. Licensing other
manufacturers may be deemed necessary, for the purpose of granting an
exemption to these agreements under Article 85 (3).
52. (ae) Agreements foreseeing special treatment for TOs’ terminal equip-
ment or other companies’ equipment for the interconnection or interoperation
of terminal equipment with reserved services and facilities
91/C:233702 87
53. (af) Agreements on the exchange of information
A general exchange of information could indeed be necessary for the good

functioning of international telecommunications services, and for cooperation
aimed at ensuring interconnectivity or one-stop shopping and billing. It should
not be extended to competition-sensitive information, such as certain tariff
information which constitutes business secrets, discounting, customers and
commercial strategy, including that concerning new products. The exchange of
this information would affect the autonomy of each TO’s commercial policy
and it is not necessary to attain the said objectives.
B. Agreements concerning the provision of non-reserved services and terminal

equipment
54. Unlike facilities markets, where only the TOs are the providers, in the
services markets the actual or potential competitors are numerous and include,
besides the TOs, international private companies, computer companies, pub-
lishers and others. Agreements on services and terminal equipment could
therefore be concluded between TOs, between TOs and private companies,
and between private companies.
55. The liberalizing process has led mostly to strategic agreements between (1)
TOs, and (11) TOs and other companies. These agreements usually take the
form of joint ventures.
56. (ba) Agreements between TOs

The scope of these agreements, in general, is the provision by each partner of a
value-added service including the management of the service. Those agree-
ments are mostly based on the ‘one-stop shopping’ principle, i.e. each partner
offers to the customer the entire package of services which he needs. These
managed services are called managed data network services (MDNS). An
MDNS essentially consists of a broad package of services including facilities,
value-added services and management. The agreements may also concern such
basic services as satellite uplink.
57. These agreements could restrict competition in the MDNS market and
also in the markets for a service or a group of services included in the MDNS:
(i) between the participating TOs themselves; and
(ii) |vis-a-vis other actual or potential third-party providers.
58. (i) Restrictions of competition between Tos

Cooperation between TOs could limit the number of potential individual
MDNS offered by each participating TO.
The agreements may affect competition at least in certain aspects which are
contemplated as specific examples of prohibited practices under Article 85 (1)
(a) to (c), in the event that:
- they fix or recommend, or at least lead (through the exchange of price

information) to coordination of prices charged by each participant to
customers,
- they provide for joint specification of MDNS products, quotas, joint
delivery, specification of customers’ systems; all this would amount to
controlling production, markets, technical development and investments,
= they contemplate joint purchase of MDNS hardware and/or software,
which would amount to sharing markets or sources of supply.
59. (ii) Restrictive effects on third party undertakings

Third parties’ market entry could be precluded or hampered if the participating
TOs:
— refuse to provide facilities to third party suppliers of services,
— apply usage restrictions only to third parties and not to themselves (e.g. a
private provider is precluded from placing multiple customers on a leased
line facility to obtain lower unit costs),
~ favour their MDNS offerings over those of private suppliers with respect
to access, availability, quality and price of leased circuits, maintenance
and other services,
- apply especially low rates to their MDNS offerings, cross-subsidizing
them with higher rates for monopoly services.
Examples of this could be the restrictions imposed by the TOs on private
network operators as to the qualifications of the users, the nature of the
messages to be exchanged over the network or the use of international private
leased circuits.
60. Finally, as the participating TOs hold, individually or collectively, a

dominant position for the creation and the exploitation of the network in each
national market, any restrictive behaviour described in paragraph 59 could
amount to an abuse of a dominant position under Article 86 (see V below).
61. On the other hand, agreements between TOs may bring economic benefits
which could be taken into account for the possible granting of an exemption
under Article 85 (3). Inter alia, the possible benefits could be as follows:
= a European-wide service and ‘one-stop shopping’ could favour business in
Europe. Large multinational undertakings are provided with a European
communication service using only a single point of contact,
- the cooperation could lead to a certain amount of European-wide
standardization even before further EEC legislation on this matter is
adopted,
- the cooperation could bring a cost reduction and consequently cheaper
offerings to the advantage of consumers,
= a general improvement of public infrastructure could arise from a joint
service provision.
91/G233/02 +89
62. Only by notification of the cases in question, in accordance with the

appropriate procedures under Regulation No 17, will the Commission be able,
where requested, to ascertain, on the merits, whether these benefits outweigh
the competition restrictions. But in any event, restrictions on access for third
parties seem likely to be considered as not indispensable and to lead to the
elimination of competition for a substantial part of the products and services
concerned within the meaning of Article 85 (3), thus excluding the possibility of
an exemption. Moreover, if an MDNS agreement strengthens appreciably a
dominant position which a participating TO holds in the market for a service
included in the MDNS, this is also likely to lead to a rejection of the exemption.
63. The Commission has outlined the conditions for exempting such forms of
cooperation in a case concerning a proposed joint venture between 22 TOs for
the provision of a Europe-wide MDNS, later abandoned for commercial
reasons [21], The Commission considered that the MDNS project presented
the risks of restriction of competition between the operators themselves and
private service suppliers but it accepted that the project also offered economic
benefits to telecommunications users such as access to Europe-wide services
through a single operator. Such cooperation could also have accelerated
European standardization, reduced costs and increased the quality of the
services. The Commission had informed the participants that approval of the
project would have to be subject to guarantees designed to prevent undue
restriction of competition in the telecommunications services markets, such as
discrimination against private services suppliers and cross-subsidization. Such
guarantees would be essential conditions for the granting of an exemption
under the competition rules to cooperation agreements involving TOs. The
requirement for an appropriate guarantee of non-discrimination and non-
cross-subsidization will be specified in individual cases according to the
examples of discrimination indicated in Section V below concerning the
application of Article 86.
64. (bb) Agreements between TOs and other service providers
Cooperation between TOs and other operators is increasing in telecommunica-
tions services. It frequently takes the form of a joint venture. The Commission
recognizes that it may have beneficial effects. However, this cooperation may
also adversely affect competition and the opening up of services markets.
Beneficial and harmful effects must therefore be carefully weighed.
65. Such agreements may restrict competition for the provision of telecom-
munications services:
(i) between the partners; and
(ii) from third parties.
66. (1) Competition between the partners may be restricted when these are
actual or potential competitors for the relevant telecommunications service.
This is generally the case, even when only the other partners and not the TOs
are already providing the service. Indeed, TOs may have the required financial
capacity, technical and commercial skills to enter the market for non-reserved
services and could reasonably bear the technical and financial risk of doing it.
This is also generally the case as far as private operators are concerned, when
they do not yet provide the service in the geographical market covered by the
cooperation, but do provide this service elsewhere. They may therefore be
potential competitors in this geographic market.
67. (II) The cooperation may restrict competition from third parties because:
- there is an appreciable risk that the participant TO, i.e. the dominant
network provider, will give more favourable network access to its
cooperation partners than to other service providers in competition with
the partners,
— potential competitors may refrain from entering the market because of
this objective risk or, in any event, because of the presence on the market-
place of a cooperation involving the monopolist for the network provi-
sion. This is especially the case when market entry barriers are high: the
market structure allows only few suppliers and the size and the market
power of the partners are considerable.
68. On the other hand, the cooperation may bring economic benefits which
outweigh its harmful effect and therefore justify the granting of an exemption
under Article 85 (3). The economic benefits can consist, inter alia, of the
rationalization of the production and distribution of telecommunication
services, in improvements in existing services or development of new services,
or transfer of technology which improves the efficiency and the competitiveness
of the European industrial structures.
69. In the absence of such economic benefits a complementarity between
partners, i.e. between the provision of a reserved activity and that of a service
under competition, is not a benefit as such. Considering it as a benefit would be
equal to justifying an involvement through restrictive agreements of TOs in any
non-reserved service provision. This would be to hinder a competitive structure
in this market.
In certain cases, the cooperation could consolidate or extend the dominant

position of the TOs concerned to a non-reserved services market, in violation
of Article 86.
70. The imposition or the proposal of cooperation with the service provider
as a condition for the provision of the network may be deemed abusive (see
paragraph 98 (vi)).
71. (bc) Agreements between service providers other than Tos
The Commission will apply the same principles indicated in (ba) and (bb)
above also to agreements between private service providers, inter alia, agree-
ments providing quotas, price fixing, market and/or customer allocation. In
DIiC233/02-. Os
principle, they are unlikely to qualify for an exemption. The Commission will
be particularly vigilant in order to avoid cooperation on services leading to a
strengthening of dominant positions of the partners or restricting competition
from third parties. There is a danger of this occurring for example when an
undertaking is dominant with regard to the network architecture and its
proprietary standard is adopted to support the service contemplated by the
cooperation. This architecture enabling interconnection between computer
systems of the partners could attract some partners to the dominant partner.
The dominant position for the network architecture will be strengthened and
Article 86 may apply.
72. In any exemption of agreements between TOs and other services and/or
equipment providers, or between these providers, the Commission will require
from the partners appropriate guarantees of non-cross-subsidization and non-
discrimination. The risk of cross-subsidization and discrimination is higher
when the TOs or the other partners provide both services and equipment,
whether within or outside the Community.
C. Agreements on research and development (R&D)

73. As in other high technology based sectors, R&D in telecommunications
is essential for keeping pace with technological progress and being competitive
on the market-place to the benefit of users. R&D requires more and more
important financial, technical and human resources which only few under-
takings can generate individually. Cooperation is therefore crucial for attaining
the above objectives.
74. The Commission has adopted a Regulation for the block exemption
under Article 85 (3) of R&D agreements in all sectors, including telecommu-
nications [22].
75. Agreements which are not covered by this Regulation (or the other
Commission block exemption Regulations) could still obtain an individual
exemption from the Commission if Article 85 (3) requirements are met
individually. However, not in all cases do the economic benefits of an R&D
agreement outweigh its competition restrictions. In telecommunications, one
major asset, enabling access to new markets, is the launch of new products or
services. Competition is based not only on price, but also on technology. R&D
agreements could constitute the means for powerful undertakings with high
market shares to avoid or limit competition from more innovative rivals. The
risk of excessive restrictions of competition increases when the cooperation is
extended from R&D to manufacturing and even more to distribution.
76. The importance which the Commission attaches to R&D and innovation
is demonstrated by the fact that it has launched several programmes for this
purpose. The joint companies’ activities which may result from these pro-
grammes are not automatically cleared or exempted as such in all aspects from
the application of the competition rules. However, most ofthose joint activities
may be covered by the Commission’s block exemption Regulations. If not, the

joint activities in question may be exempted, where required, in accordance
with the appropriate criteria and procedures.
77. In the Commission’s experience joint distribution linked to joint R&D
which is not covered by the Regulation on R&D does not play the crucial role
in the exploitation of the results of R&D. Nevertheless, in individual cases,
provided that a competitive environment is maintained, the Commission is
prepared to consider full-range cooperation even between large firms. This
should lead to improving the structure of European industry and thus enable it
to meet strong competition in the world market place.
V. APPLICATION OF ARTICLE 86
78. Article 86 applies when:

(i) the undertaking concerned holds an individual or a joint dominant
position;
(ii) it commits an abuse of that dominant position; and
(ii1) the abuse may affect trade between Member States.
Dominant position
79. In each national market the TOs hold individually or collectively a
dominant position for the creation and the exploitation of the network, since
they are protected by exclusive or special rights granted by the State. Moreover,
the TOs hold a dominant position for some telecommunications services, in so
far as they hold exclusive or special rights with respect to those services [23].
80. The TOs may also hold dominant positions on the markets for certain
equipment or services, even though they no longer hold any exclusive rights on
those markets. After the elimination of these rights, they may have kept very
important market shares in this sector. When the market share in itself does not
suffice to give the TOs a dominant position, it could do it in combination with
the other factors such as the monopoly for the network or other related services
and a powerful and wide distribution network. As to the equipment, for
example terminal equipment, even if the TOs are not involved in the equipment
manufacturing or in the services provision, they may hold a dominant position
in the market as distributors.
81. Also, firms other than TOs may hold individual or collective dominant
positions in markets where there are no exclusive rights. This may be the case
especially for certain non-reserved services because of either the market shares
alone of those undertakings, or because of a combination of several factors.
Among these factors, in addition to the market shares, two of particular
importance are the technological advance and the holding of the information
concerning access protocols or interfaces necessary to ensure interoperability
9114 €233702 493
of software and hardware. When this information is covered by intellectual

property rights this is a further factor of dominance.
82. Finally, the TOs hold, individually or collectively, dominant positions in
the demand for some telecommunication equipment, works or software
services. Being dominant for the network and other services provisions they
may account for a purchaser’s share high enough to give them dominance as to
the demand, i.e. making suppliers dependent on them. Dependence could exist
when the supplier cannot sell to other customers a substantial part of its
production or change a production. In certain national markets, for example
in large switching equipment, big purchasers such as the TOs face big suppliers.
In this situation, it should be weighed up case by case whether the supplier or
the customer position will prevail on the other to such an extent as to be
considered dominant under Article 86.
With the liberalization of services and the expansion of new forces on the
services markets, dominant positions of undertakings other than the TOs may
arise for the purchasing of equipment.
Abuse
83. Commission’s activity may concern mainly the following broad areas of
abuses:
A. TOs’ abuses: in particular, they may take advantage of their monopoly or
at least dominant position to acquire a foothold or to extend their power
in non-reserved neighbouring markets, to the detriment of competitors
and customers.
B. Abuses by undertaking other than TOs: these may take advantage of the
fundamental information they hold, whether or not covered by intellec-
tual property rights, with the object and/or effect of restricting competi-
tion.
C. Abuses of a dominant purchasing position: for the time being this
concerns mainly the TOs, especially to the extent that they hold a
dominant position for reserved activities in the national market. How-
ever, it may also increasingly concern other undertakings which have
entered the market.
A. TOs’ Abuses
84. The Commission has recognized in the Green Paper the central role of the
TOs, which justifies the maintenance of certain monopolies to enable them to
perform their public task. This public task consists in the provision and
exploitation of a universal network or, where appropriate, universal service,
i.e. one having general coverage and available to all users (including service
providers and the TOs themselves) upon request on reasonable and non-
discriminatory conditions.
This fundamental obligation could justify the benefit of the exception provided
in Article 90 (2) under certain circumstances, as laid down in the Services
Directive.
85. In most cases, however, the competition rules, far from obstructing the
fulfilment of this obligation, contribute to ensuring it. In particular, Article 86
can apply to behaviour of dominant undertakings resulting in a refusal to
supply, discrimination, restrictive tying clauses, unfair prices or other inequi-
table conditions.
If one of these types of behaviour occurs in the provision of one of the
monopoly services, the fundamental obligation indicated above is not per-
formed. This could be the case when a TO tries to take advantage of its
monopoly for certain services (for instance: network provision) in order to
limit the competition they have to face in respect of non-reserved services,
which in turn are supported by those monopoly services.
It is not necessary for the purpose of the application of Article 86 that
competition be restricted as to a service which is supported by the monopoly
provision in question. It would suffice that the behaviour results in an
appreciable restriction of competition in whatever way. This means that an
abuse may occur when the company affected by the behaviour is not a service
provider but an end user who could himself be disadvantaged in competition in
the course of his own business.
86. The Court of Justice has set out this fundamental principle of competition
in telecommunications in one of its judgments [24]. An abuse within the
meaning of Article 86 is committed where, without any objective necessity, an
undertaking holding a dominant position on a particular market reserves to
itself or to an undertaking belonging to the same group an ancillary activity
which might be carried out by another undertaking as part of its activities on a
neighbouring but separate market, with the possibility of eliminating all
competition from such undertaking.
The Commission believes that this principle applies, not only when a dominant
undertaking monopolizes other markets, but also when by anti-competitive
means it extends its activity to other markets.
Hampering the provision of non-reserved services could limit production,

markets and above all the technical progress which is a key factor of
telecommunications. The Commission has already shown these adverse effects
of usage restrictions on monopoly provision in its decision in the ‘British
Telecom’ case [25]. In this Decision it was found that the restrictions imposed
by British Telecom on telex and telephone networks usage, namely on the
transmission of international messages on behalf of third parties:
(i) limited the activity of economic operators to the detriment of technolo-
gical progress;
DUS T3IS/02. 95
(ii) discriminated against these operators, thereby placing them at a compe-

titive disadvantage vis-a-vis TOs not bound by these restrictions; and
(ii1) made the conclusion of the contracts for the supply of telex circuits
subject to acceptance by the other parties of supplementary obligations
which had no connection with such contracts. These were considered
abuses of a dominant position identified respectively in Article 86 (b), (c)
and (d).
This could be done:
(a) as above, by refusing or restricting the usage of the service provided

under monopoly so as to limit the provision of non-reserved services by
third parties; or
(b) by predatory behaviour, as a result of cross-subsidization.
87. The separation of the TOs’ regulatory power from their business activity
is a crucial matter in the context of the application of Article 86. This
separation is provided in the Article 90 Directives on terminals and on services
mentioned in Note 2 above.
(a) Usage restrictions
88. Usage restrictions on provisions of reserved services are likely to
correspond to the specific examples of abuses indicated in Article 86. In
particular:
- they may limit the provision of telecommunications services in free
competition, the investments and the technical progress, to the prejudice
of telecommunications consumers (Article 86 (b)),
- to the extent that these usage restrictions are not applied to all users,
including the TOs themselves as users, they may result in discrimination
against certain users, placing them at a competitive disadvantage (Article
86 (c)),
— they may make the usage of the reserved services subject to the
acceptance of obligations which have no connection with this usage
(Article 86 (d)).
89. The usage restrictions in question mainly concern public networks (public
switched telephone network (PSTN) or public switched data networks
(PSDN)) and especially leased circuits. They may also concern other provisions
such as satellite uplink, and mobile communication networks. The most
frequent types of behaviour are as follows:
(i) Prohibition imposed by TOs on third parties:
(a) to connect private leased circuits by means of concentrator, multi-
plexer or other equipment to the public switched network; and/or
(b) to use private leased circuits for providing services, to the extent
that these services are not reserved, but under competition.
90. To the extent that the user is granted a licence by State regulatory
authorities under national law in compliance with EEC law, these prohibitions
limit the user’s freedom of access to the leased circuits, the provision of which is
a public service. Moreover, it discriminates between users, depending upon the
usage (Article 86 (c)). This is one of the most serious restrictions and could
substantially hinder the development of international telecommunications
services (Article 86 (b)).
91. When the usage restriction limits the provision of non-reserved service in
competition with that provided by the TO itself the abuse is even more serious
and the principles of the abovementioned ‘Telemarketing’ judgment (Note 23
supra) apply.
92. In individual cases, the Commission will assess whether the service
provided on the leased circuit is reserved or not, on the basis of the Community
regulatory acts interpreted in the technical and economic context of each case.
Even though a service could be considered reserved according to the law, the
fact that a TO actually prohibits the usage of the leased circuit only to some
users and not to others could constitute a discrimination under Article 86 (c).
93. The Commission has taken action in respect of the Belgian Regie des
telegraphes et télephones after receiving a complaint concerning an alleged
abuse of dominant position from a private supplier of value-added telecommu-
nications services relating to the conditions under which telecommunications
circuits were being leased. Following discussions with the Commission, the
RTT authorized the private supplier concerned to use the leased telecommuni-
cations circuits subject to no restrictions other than that they should not be
used for the simple transport of data.
Moreover, pending the possible adoption of new rules in Belgium, and without
prejudice to any such rules, the RTT undertook that all its existing and
potential clients for leased telecommunications circuits to which third parties
may have access shall be governed by the same conditions as those which were
agreed with the private sector supplier mentioned above [26].
(ii) Refusal by TOs to provide reserved services (in particular the network
and leased circuits) to third parties
94. Refusal to supply has been considered an abuse by the Commission and
the Court of Justice [27]. This behaviour would make it impossible or at least
appreciably difficult for third parties to provide non-reserved services. This, in
turn, would lead to a limitation of services and of technical development
(Article 86 (b)) and, if applied only to some users, result in discrimination
(Article 86 (c)).
(iii) Imposition of extra charges or other special conditions for certain usages
of reserved services
DIE 233702 ~ 97
95. An example would be the imposition of access charges to leased circuits

when they are connected to the public switched network or other special prices
and charges for service provision to third parties. Such access charges may
discriminate between users of the same service (leased circuits provision)
depending upon the usage and result in imposing unfair trading conditions.
This will limit the usage of leased circuits and finally non-reserved service
provision. Conversely, it does not constitute an abuse provided that it is shown,
in each specific case, that the access charges correspond to costs which are
entailed directly for the TOs for the access in question. In this case, access
charges can be imposed only on an equal basis to all users, including TOs
themselves.
96. Apart from these possible additional costs which should be covered by an
extra charge, the interconnection of a leased circuit to the public switched
network is already remunerated by the price related to the use of this network.
Certainly, a leased circuit can represent a subjective value for a user depending
on the profitability of the enhanced service to be provided on that leased
circuit. However, this cannot be a criterion on which a dominant undertaking,
and above all a public service provider, can base the price of this public service.
97. The Commission appreciates that the substantial difference between
leased circuits and the public switched network causes a problem of obtaining
the necessary revenues to cover the costs of the switched network. However,
the remedy chosen must not be contrary to law, i.e. the EEC Treaty, as
discriminatory pricing between customers would be.
(iv) Discriminatory price or quality of the service provided

98. This behaviour may relate, inter alia, to tariffs or to restrictions or delays
in connection to the public switched network or leased circuits provision, in
installation, maintenance and repair, in effecting interconnection of systems or
in providing information concerning network planning, signalling protocols,
technical standards and all other information necessary for an appropriate
interconnection and interoperation with the reserved service and which may
affect the interworking of competitive services or terminal equipment offerings.
(v) Tying the provision of the reserved service to the supply by the TOs or
others of terminal equipment to be interconnected or interoperated, in
particular through imposition, pressure, offer of special prices or other
trading conditions for the reserved service linked to the equipment.
(vi) Tying the provision of the reserved service to the agreement of the user to
enter into cooperation with the reserved service provider himself as to the
non-reserved service to be carried on the network
(vii) Reserving to itself for the purpose of non-reserved service provision or to
other service providers information obtained in the exercise of a reserved
service in particular information concerning users of a reserved services
providers more favourable conditions for the supply of this information
This latter information could be important for the provision of services under
competition to the extent that it permits the targeting of customers of those
services and the definition of business strategy. The behaviour indicated above
could result in a discrimination against undertakings to which the use of this
information is denied in violation of Article 86 (c). The information in question
can only be disclosed with the agreement of the users concerned and in
accordance with relevant data protection legislation (see the proposal for a
Council Directive concerning the protection of personal data and privacy in
the context of public digital telecommunications networks, in particular the
integrated services digital network (ISDN) and public digital mobile networks)
[28].
(viii) Imposition of unneeded reserved services by supplying reserved and/or
non-reserved services when the former reserved services are reasonably
separable from the others
99. The practices under (v) (vi) (vii) and (vill) result in applying conditions
which have no connection with the reserved service, contravening Article 86
(d).
100. Most of these practices were in fact identified in the Services Directive as
restrictions on the provision of services within the meaning of Article 59 and
Article 86 of the Treaty brought about by State measures. They are therefore
covered by the broader concept of ‘restrictions’ which under Article 6 of the
Directive have to be removed by Member States.
101. The Commission believes that the Directives on terminals and on

services also clarify some principles of application of Articles 85 and 86 in the
sector.
The Services Directive does not apply to important sectors such as mobile
communications and satellites; however, competition rules apply fully to these
sectors. Moreover, as to the services covered by the Directive it will depend
very much on the degree of precision of the licences given by the regulatory
body whether the TOs still have a discretionary margin for imposing conditions
which should be scrutinized under competition rules. Not all the conditions can
be regulated in licences: consequently, there could be room for discretionary
action. The application of competition rules to companies will therefore
depend very much on a case-by-case examination of the licences. Nothing
more than a class licence can be required for terminals.
(b) Cross-subsidization
102. Cross-subsidization means that an undertaking allocates all or part of
the costs of its activity in one product or geographic market to its activity in
another product or geographic market. Under certain circumstances, cross-
subsidization in telecommunications could distort competition, i.e. lead to
beating other competitors with offers which are made possible not by efficiency
and performance but by artificial means such as subsidies. Avoiding cross-
DIA G233/02 899
subsidization leading to unfair competition is crucial for the development of

service provision and equipment supply.
103. Cross-subsidization does not lead to predatory pricing and does not
restrict competition when it is the costs of reserved activities which are
subsidized by the revenue generated by other reserved activities since there is
no competition possible as to these activities. This form of subsidization is even
necessary, as it enables the TOs holders of exclusive rights to perform their
obligation to provide a public service universally and on the same conditions to
everybody. For instance, telephone provision in unprofitable rural areas is
subsidized through revenues from telephone provision in profitable urban areas
or long-distance calls. The same could be said of subsidizing the provision of
reserved services through revenues generated by activities under competition.
The application of the general principle of cost-orientation should be the
ultimate goal, in order, inter alia, to ensure that prices are not inequitable as
between users.
104. Subsidizing activities under competition, whether concerning services or
equipment, by allocating their costs to monopoly activities, however, is likely to
distort competition in violation of Article 86. It could amount to an abuse by
an undertaking holding a dominant position within the Community. Moreover,
users of activities under monopoly have to bear unrelated costs for the
provision of these activities. Cross-subsidization can also exist between
monopoly provision and equipment manufacturing and sale. Cross-subsidiza-
tion can be carried out through:
— funding the operation of the activities in question with capital remuner-
ated substantially below the market rate;
~ providing for those activities premises, equipment, experts and/or
services with a remuneration substantially lower than the market price.
105. As to funding through monopoly revenues or making available mono-

poly material and intellectual means for the starting up of new activities under
competition, this constitutes an investment whose costs should be allocated to
the new activity. Offering the new product or service should normally include a
reasonable remuneration of such investment in the long run. If it does not, the
Commission will assess the case on the basis of the remuneration plans of the
undertaking concerned and of the economic context.
106. Transparency in the TOs’ accounting should enable the Commission to

ascertain whether there is cross-subsidization in the cases in which this
question arises. The ONP Directive provides in this respect for the definition
of harmonized tariff principles which should lessen the number of these cases.
This transparency can be provided by an accounting system which ensures the
fully proportionate distribution of all costs between reserved and non-reserved
activities. Proper allocation of costs is more easily ensured in cases of
structural separation, i.e. creating distinct entities for running each of these two
categories of activities.
An appropriate accounting system approach should permit the identification
and allocation of all costs between the activities which they support. In this
system all products and services should bear proportionally all the relevant
costs, including costs of research and development, facilities and overheads. It
should enable the production of recorded figures which can be verified by
accountants.
107. As indicated above (paragraph 59), in cases of cooperation agreements

involving TOs a guarantee of no cross-subsidization is one of the conditions
required by the Commission for exemption under Article 85 (3). In order to
monitor properly compliance with that guarantee, the Commission now
envisages requesting the parties to ensure an appropriate accounting system
as described above, the accounts being regularly submitted to the Commission.
Where the accounting method is chosen, the Commission will reserve the
possibility of submitting the accounts to independent audit, especially if any
doubt arises as to the capability of the system to ensure the necessary
transparency or to detect any cross-subsidization. If the guarantee cannot be
properly monitored, the Commission may withdraw the exemption.
108. In all other cases, the Commission does not envisage requiring such
transparency of the TOs. However, if in a specific case there are substantial
elements converging in indicating the existence of an abusive cross-subsidiza-
tion and/or predatory pricing, the Commission could establish a presumption
of such cross-subsidization and predatory pricing. An appropriate separate
accounting system could be important in order to counter this presumption.
109. Cross-subsidization of a reserved activity by a non-reserved one does not

in principle restrict competition. However, the application of the exception
provided in Article 90 (2) to this non-reserved activity could not as a rule be
justified by the fact that the financial viability of the TO in question rests on the
non-reserved activity. Its financial viability and the performance of its task of
general economic interest can only be ensured by the State where appropriate
by the granting of an exclusive or special right and by imposing restrictions on
activities competing with the reserved ones.
110. Also cross-subsidization by a public or private operator outside the EEC

may be deemed abusive in terms of Article 86 if that operator holds a dominant
position for equipment or non-reserved services within the EEC. The existence
of this dominant position, which allows the holder to behave to an appreciable
extent independently of its competitors and customers and ultimately of
consumers, will be assessed in the light of all elements in the EEC and outside.
B. Abuses by undertakings other than the Tos

111. Further to the liberalization of services, undertakings other than the
TOs may increasingly extend their power to acquire dominant positions in
91/C 233/02 101
non-reserved markets. They may already hold such a position in some services
markets which had not been reserved. When they take advantage of their
dominant position to restrict competition and to extend their power, Article
86 may also apply to them. The abuses in which they might indulge are broadly
similar to most of those previously described in relation to the TOs.
112. Infringements of Article 86 may be committed by the abusive exercise of
industrial property rights in relation with standards, which are of crucial
importance for telecommunications. Standards may be either the results of
international standardization, or de facto standards and the property of
undertakings.
113. Producers of equipment or suppliers of services are dependent on

proprietary standards to ensure the interconnectivity of their computer
resources. An undertaking which owns a dominant network architecture may
abuse its dominant position by refusing to provide the necessary information
for the interconnection of other architecture resources to its architecture
products. Other possible abuses — similar to those indicated as to the TOs —
are, inter alia, delays in providing the information, discrimination in the quality
of the information, discriminatory pricing or other trading conditions, and
making the information provision subject to the acceptance by the producer,
supplier or user of unfair trading conditions.
114. On 1 August 1984, the Commission accepted a unilateral undertaking
from IBM to provide other manufacturers with the technical interface
information needed to permit competitive products to be used with IBM’s then
most powerful range of computers, the System/370. The Commission there-
upon suspended the proceedings under Article 86 which it had initiated against
IBM in December 1980. The IBM Undertaking [29] also contains a commit-
ment relating to SNA formats and protocols.
115. The question how to reconcile copyrights on standards with the
competition requirements is particularly difficult. In any event, copyright
cannot be used unduly to restrict competition.
C. Abuses of dominant purchasing position

116. Article 86 also applies to behaviour of undertakings holding a dominant
purchasing position. The examples of abuses indicated in that Article may
therefore also concern that behaviour.
117. The Council Directive 90/531/EEC based on Articles 57 (2), 66, 100a
and 113 of the EEC Treaty on the procurement procedures of entities operating
in inter alia the telecommunications sector regulates essentially [30]:
(i) procurement procedures in order to ensure on a reciprocal basis non-
discrimination on the basis of nationality; and
(ii) for products or services for use in reserved markets, not in competitive
markets. That Directive, which is addressed to States, does not exclude
the application of Article 86 to the purchasing of products within the
scope of the Directive. The Commission will decide case by case how to
ensure that these different sets of rules are applied in a coherent manner.
118. Furthermore, both in reserved and competitive markets, practices other
than those covered by the Directive may be established in violation of Article
86. One example is taking advantage of a dominant purchasing position for
imposing excessively favourable prices or other trading conditions, in compar-
ison with other purchasers and suppliers (Article 86 (a)). This could result in
discrimination under Article 86 (c). Also obtaining, whether or not through
imposition, an exclusive distributorship for the purchased product by the
dominant purchaser may constitute an abusive extension of its economic
power to other markets (see ‘Telemarketing’ Court judgment (Note 23 supra)).
119. Another abusive practice could be that of making the purchase subject
to licensing by the supplier of standards for the product to be purchased or for
other products, to the purchaser itself, or to other suppliers (Article 86 (d)).
120. Moreover, even in competitive markets, discriminatory procedures on
the basis of nationality may exist, because national pressures and traditional
links of a non-economic nature do not always disappear quickly after the
liberalization of the markets. In this case, a systematic exclusion or consider-
ably unfavourable treatment of a supplier, without economic necessity, could
be examined under Article 86, especially (b) (limitation of outlets) and (c)
(discrimination). In assessing the case, the Commission will substantially
examine whether the same criteria for awarding the contract have been
followed by the dominant undertaking for all suppliers. The Commission will
normally take into account criteria similar to those indicated in Article 27 (1)
of the Directive [31]. The purchases in question being outside the scope of the
Directive, the Commission will not require that transparent purchasing
procedures be pursued.
D. Effect on trade between Member States

121. The same principle outlined regarding Article 85 applies here. Moreover,
in certain circumstances, such as the case of the elimination of a competitor by
an undertaking holding a dominant position, although trade between Member
States is not directly affected, for the purposes of Article 86 it is sufficient to
show that there will be repercussions on the competitive structure of the
common market.
VI. APPLICATION OF ARTICLES 85 AND 86 IN THE FIELD OF

SATELLITES
122. The development of this sector is addressed globally by the Commission

in the ‘Green Paper on a common approach in the field of satellite commu-
nications in the European Community’ of 20 November 1990 (Doc. COM(90)
490 final). Due to the increasing importance of satellites and the particular
uncertainty among undertakings as to the application of competition rules to
91/€ 233/02 103
individual cases in this sector, it is appropriate to address the sector in a

distinct section in these guidelines.
123. State regulations on satellites are not covered by the Commission

Directives under Article 90 of the EEC Treaty respectively on terminals and
services mentioned above except in the Directive on terminals which con-
templates receive-only satellite stations not connected to a public network. The
Commission’s position on the regulatory framework compatible with the
Treaty competition rules is stated in the Commission Green Paper on satellites
mentioned above.
124. In any event the Treaty competition rules fully apply to the satellites
domain, inter alia, Articles 85 and 86 to undertakings. Below is indicated how
the principles set out above, in particular in Sections IV and V, apply to
satellites.
125. Agreements between European TOs in particular within international
conventions may play an important role in providing European satellites
systems and a harmonious development of satellite services throughout the
Community. These benefits are taken into consideration under competition
rules, provided that the agreements do not contain restrictions which are not
indispensable for the attainment of these objectives.
126. Agreements between TOs concerning the operation of satellite systems

in the broadest sense may be caught by Article 85. As to space segment
capacity, the TOs are each other’s competitors, whether actual or potential. In
pooling together totally or partially their supplies of space segment capacity
they may restrict competition between themselves. Moreover, they are likely to
restrict competition vis-a-vis third parties to the extent that their agreements
contain provisions with this object or effect: for instance provisions limiting
their supplies in quality and/or quantity, or restricting their business autonomy
by imposing directly or indirectly a coordination between these third parties
and the parties to the agreements. It should be examined whether such
agreements could qualify for an exemption under Article 85 (3) provided that
they are notified. However, restrictions on third parties’ ability to compete are
likely to preclude such an exemption. It should also be examined whether such
agreements strengthen any individual or collective dominant position of the
parties, which also would exclude the granting of an exemption. This could be
the case in particular if the agreement provides that the parties are exclusive
distributors of the space segment capacity provided by the agreement.
127. Such agreements between TOs could also restrict competition as to the
uplink with respect to which TOs are competitors. In certain cases the
customer for satellite communication has the choice between providers in
several countries, and his choice will be substantially determined by the quality,
price and other sales conditions of each provider. This choice will be even
ampler since uplink is being progressively liberalized and to the extent that the
application of EEC rules to State legislations will open up the uplink markets.
Community-wide agreements providing directly or indirectly for coordination
as to the parties’ uplink provision are therefore caught by Article 85.
128. Agreements between TOs and private operators on space segment
capacity may be also caught by Article 85, as that provision applies, inter alia,
to cooperation, and in particular joint venture agreements. These agreements
could be exempted if they bring specific benefits such as technology transfer,
improvement of the quality of the service or enabling better marketing,
especially for a new capacity, outweighing the restrictions. In any event,
imposing on customers the bundled uplink and space segment capacity
provision is likely to exclude an exemption since it limits competition in uplink
provision to the detriment of the customer’s choice, and in the current market
situation will almost certainly strengthen the TOs’ dominant position in
violation of Article 86. An exemption is unlikely to be granted also when the
agreement has the effect of reducing substantially the supply in an oligopolistic
market, and even more clearly when an effect of the agreement is to prevent the
only potential competitor of a dominant provider in a given market from
offering its services independently. This could amount to a violation of Article
86. Direct or indirect imposition of any kind of agreement by a TO, for instance
by making the uplink subject to the conclusion of an agreement with a third
party, would constitute an infringement of Article 86.
VII. RESTRUCTURING IN TELECOMMUNICATIONS

129. Deregulation, the objective of a single market for 1992 and the
fundamental changes in the telecommunications technology have caused wide
strategic restructuring in Europe and throughout the world as well. They have
mostly taken the form of mergers and joint ventures.
(a) Mergers
130. In assessing telecom mergers in the framework of Council Regulation
(EEC) No 4064/89 on the control of concentrations between undertakings [32]
the Commission will take into account, inter alia, the following elements.
131. Restructuring moves are in general beneficial to the European tele-

communications industry. They may enable the companies to rationalize and
to reach the critical mass necessary to obtain the economies of scale needed to
make the important investments in research and development. These are
necessary to develop new technologies and to remain competitive in the world
market.
However, in certain cases they may also lead to the anti-competitive creation or
strengthening of dominant positions.
132. The economic benefits resulting from critical mass must be demon-
strated. The concentration operation could result in a mere aggregation of
market shares, unaccompanied by restructuring measures or plans. This
DIV EC2ZIS/02 LOS
operation may create or strengthen Community or national dominant posi-

tions in a way which impedes competition.
133. When concentration operations have this sole effect, they can hardly be
justified by the objective of increasing the competitivity of Community
industry in the world market. This objective, strongly pursued by the Commis-
sion, rather requires competition in EEC domestic markets in order that the
EEC undertakings acquire the competitive structure and attitude needed to
operate in the world market.
134. In assessing concentration cases in telecommunications, the Commis-

sion will be particularly vigilant to avoid the strengthening of dominant
positions through integration. If dominant service providers are allowed to
integrate into the equipment market by way of mergers, access to this market
by other equipment suppliers may be seriously hindered. A dominant service
provider is likely to give preferential treatment to its own equipment subsidiary.
Moreover, the possibility of disclosure by the service provider to its subsidiary

of sensitive information obtained from competing equipment manufacturers
can put the latter at a competitive disadvantage.
The Commission will examine case by case whether vertical integration has
such effects or rather is likely to reinforce the competitive structure in the
Community.
135. The Commission has enforced principles on restructuring in a case
concerning the GEC and Siemens joint bid for Plessey [33].
136. Article 85 (1) applies to the acquisition by an undertaking of a minority

shareholding in a competitor where, inter alia, the arrangements involve the
creation of a structure of cooperation between the investor and the other
undertakings, which will influence these undertakings’ competitive conduct
(34).
(b) Joint ventures
137. A joint venture can be of a cooperative or a concentrative nature. It is of
a cooperative nature when it has as its object or effect the coordination of the
competitive behaviour of undertakings which remain independent. The princi-
ples governing cooperative joint ventures are to be set out in Commission
guidelines to that effect. Concentrative joint ventures fall under Regulation
(EEC) No 4064/89 [35].
138. In some of the latest joint venture cases the Commission granted an
exemption under Article 85 (3) on grounds which are particularly relevant to
telecommunications. Precisely in a decision concerning telecommunications,
the ‘Optical Fibres’ case [36], the Commission considered that the joint venture
enabled European companies to produce a high technology product, promoted
technical progress, and facilitated technology transfer. Therefore, the joint
venture permits European companies to withstand competition from non-
Community producers, especially in the USA and Japan, in an area of fast-

moving technology characterized by international markets. The Commission
confirmed this approach in the ‘Canon-Olivetti’ case [37].
VII. IMPACT OF THE INTERNATIONAL CONVENTIONS ON

THE APPLICATION OF EEC COMPETITION RULES TO
TELECOMMUNICATIONS
139. International conventions (such as the Convention of International
Telecommunication Union (ITU) or Conventions on Satellites) play a funda-
mental role in ensuring worldwide cooperation for the provision of interna-
tional services. However, application of such international conventions on
telecommunications by EEC Member States must not affect compliance with
the EEC law, in particular with competition rules.
140. Article 234 of the EEC Treaty regulates this matter [38]. The relevant
obligations provided in the various conventions or related Acts do not pre-date
the entry into force of the Treaty. As to the ITU and World Administrative
Telegraph and Telephone Conference (WATTC), whenever a revision or a new
adoption of the ITU Convention or of the WATTC Regulations occurs, the
ITU or WATTC members recover their freedom of action. The Satellites
Conventions were adopted much later.
Moreover, as to all conventions, the application of EEC rules does not seem to
affect the fulfilment of obligations of Member States vis-a-vis third countries.
Article 234 does not protect obligations between EEC Member States entered
into in international treaties. The purpose of Article 234 is to protect the right
of third countries only and it is not intended to crystallize the acquired
international treaty rights of Member States to the detriment of the EEC
Treaty’s objectives or of the Community interest. Finally, even if Article 234
(1) did apply, the Member States concerned would nevertheless be obliged to
take all appropriate steps to eliminate incompatibility between their obliga-
tions vis-a-vis third countries and the EEC rules. This applies in particular
where Member States acting collectively have the statutory possibility to
modify the international convention in question as required, e.g. in the case of
the Eutelsat Convention.
141. As to the WATTC Regulations, the relevant provisions of the Regula-
tions in force from 9 December 1988 are flexible enough to give the parties the
choice whether or not to implement them or how to implement them.
In any event, EEC Member States, by signing the Regulations, have made a
joint declaration that they will apply them in accordance with their obligations
under the EEC Treaty.
142. As to the International Telegraph and Telephone Consultative Commit-

tee (CCITT) recommendations, competition rules apply to them.
DE C233//02 AN)
143. Members of the CCITT are, pursuant to Article 11 (2) of the Interna-
tional Telecommunications Convention, ‘administrations’ of the Members of
the ITU and recognized private operating agencies ((RPOAs’) which so request
with the approval of the ITU members which have recognized them. Unlike the
members of the ITU or the Administrative Conferences which are States, the
members of the CCITT are telecommunications administrations and RPOAs.
Telecommunications administrations are defined in Annex 2 to the Interna-
tional Telecommunications Conventions as ‘tout service ou département
gouvernemental responsable des mesures a prendre pour exécuter les obliga-
tions de la Convention Internationale des telecommunications et des régle-
ments’ [any government service or department responsible for the measures to
be taken to fulfil the obligations laid down in the International Convention on
Telecommunications and Regulations]. The CCITT meetings are in fact
attended by TOs. Article 11 (2) of the International Telecommunications
Convention clearly provides that telecommunications administrations and
RPOAs are members of the CCITT by themselves. The fact that, because of
the ongoing process of separation of the regulatory functions from the business
activity, some national authorities participate in the CCITT is not in contra-
diction with the nature of undertakings of other members. Moreover, even if
the CCITT membership became governmental as a result of the separation of
regulatory and operational activities of the telecommunications administra-
tions, Article 90 in association with Article 85 could still apply either against
the State measures implementing the CCITT recommendations and the
recommendations themselves on the basis of Article 90 (1), or if there is no
such national implementing measure, directly against the telecommunications
organizations which followed the recommendation [39].
144. In the Commission’s view, the CCITT recommendations are adopted,

inter alia, by undertakings. Such CCITT recommendations, although they are
not legally binding, are agreements between undertakings or decisions by an
association of undertakings. In any event, according to the case law of the
Commission and the European Court of Justice [40] a statutory body entrusted
with certain public functions and including some members appointed by the
government of a Member State may be an ‘association of undertakings’ if it
represents the trading interests of other members and takes decisions or makes
agreements in pursuance of those interests.
The Commission draws attention to the fact that the application of certain
provisions in the context of international conventions could result in infringe-
ments of the EEC competition rules:
— As to the WATTC Regulations, this is the case for the respective
provisions for mutual agreement between TOs on the supply of interna-
tional telecommunications services (Article 1 (5)), reserving the choice of
telecommunications routes to the TOs (Article 3 (3) (3)), recommending
practices equivalent to price agreements (Articles 6 (6) (1) (2)), and
limiting the possibility of special arrangements to activities meeting needs

within and/or between the territories of the Members concerned (Article
9) and only where existing arrangements cannot satisfactorily meet the
relevant telecommunications needs (Opinion PL A).
CCITT recommendations D1 and D2 as they stand at the date of the
adoption of these guidelines could amount to a collective horizontal
agreement on prices and other supply conditions of international leased
lines to the extent that they lead to a coordination of sales policies
between TOs and therefore limit competition between them. This was
indicated by the Commission in a CCITT meeting on 23 May 1990. The
Commission reserves the right to examine the compatibility of other
recommendations with Article 85.
The agreements between TOs concluded in the context of the Conven-
tions on Satellites are likely to limit competition contrary to Article 85
and/or 86 on the grounds set out in paragraphs 126 to 128 above.
(1) The European electronics and information technology industry: state of play, issues at stake
and proposals for action, SEC(91) 565, 3 April 1991.
(2) Telecommunications embraces any transmission, emission or reception of signs, signals,
writing, images and sounds or intelligence of any nature by wire, radio, optical and other
electromagnetic systems (Article 2 of WATTC Regulation of 9 December 1988).
(3) Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in
telecommunications terminal equipment (OJ No L 131, 27. 5. 1988, p. 73).
Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for
telecommunications services (OJ No L 192, 24. 7. 1990, p. 10).
(4) Judgment of 10. 1. 1985 in Case 229/83, Leclerc/gasoline [1985] ECR 17; Judgment of 11. 7.
1985 in Case 299/83, Leclerc/books [1985] ECR 2517; Judgment of 30. 4. 1986 in Cases from
209 to 213/84, Ministere public v. Asjes [1986] ECR 1425; Judgment of 1. 10. 1987 in Case
311/85, Vereniging van Vlaamse Reisbureaus v. Sociale Dienst van de Plaatselijke en
Gewestelijke Overheidsdiensten [1987] ECR 3801.
(5) OJ No C 257, 4. 10. 1988, p. 1.
(6) OJ No L 192, 24. 7. 1990. p. 1.
(7) Article 90 (2) states: ‘Undertakings entrusted with the operation of services of general
economic interest or having the character of a revenue-producing monopoly shall be subject
to the rules contained in this Treaty, in particular to the rules on competition, in so far as the
application of such rules does not obstruct the performance, in law or in fact, of the particular
tasks assigned to them. The development of trade must not be affected to such an extent as
would be contrary to the interests of the Community’.
(8) OJ No 13, 21. 2. 1962, p. 204/62 (Special Edition 1959-62, p. 87).
(9) See Judgment of the Court 16. 6. 1987 in Case 118/85, Commission v. Italy — Transparency of
Financial Relations between Member States and Public Undertakings [1987] ECR 2599.
(10) See Judgment of the Court of 27. 9. 1988 in Joined Cases 89, 104, 114, 116, 117, 125, 126, 127,
129/85, Alstrém & others v. Commission (“‘Woodpulp’), [1988] ECR 5193.
(11) Case 10/71, Mueller-Hein [1971] ECR 723; Judgment of 11. 4. 1989 in Case 66/86, Ahmed
Saeed [1989] ECR 803.
(12) ‘.. . the non-economic reasons in the general interest which may cause a Member State to
restrict access to the public telecommunications network or public telecommunications
services.’
(13) Case 322/81, Michelin v. Commission, 9 November 1983 [1983] ECR 3529, Ground 37.
DIC 253/02, 109
(14) Judgment of 14. 2. 1978 in Case 27/76, United Brands v. Commission [1978] ECR 207,
Ground 44. In the telecommunications sector: Judgment of 5. 10. 1988 in Case 247/86,
Alsatel-Novasam [1988] ECR 5987
(15) OJ No L 382, 31. 12. 1986, p. 36.
(16) OJ No L 196, 17. 7. 1987, p. 81.
(17) Reported in ‘Competition Law in the European Communities’ Volume I (situation at 31. 12.
1989) published by the Commission.
(18) For simplification’s sake this term stands also for ‘decisions by associations’ and ‘concerted
practices’ within the meaning of Article 85.
(19) PVC, Commission Decision 89/190/EEC, OJ No L 74, 17. 3. 1989, p. 1; Case 123/85, BNIC
v. Clair [1985] ECR 391; Case 8/72, Cementhandelaren v. Commission (1972) ECR 977;
Polypropylene, Commission Decision 86/398/EEC (OJ No L 230/1, 18. 8. 1986, p. 1) on
appeal Case179/86.
(20) See Commission press release IP(90) 188 of 6 March 1990.
(21) Commission press release IP(89) 948 of 14. 12. 1989.
(22) Regulation (EEC) No 418/85, OJ No L 53, 22. 2. 1985, p. 5.
(23) Commission Decision 82/861/EEC in the ‘British Telecommunications’ case, point 26, OJ No
L 360, 21. 12. 1982, p. 36, confirmed in the Judgment of 20. 3. 1985 in Case 41/83, Italian
Republic v. Commission [1985] ECR 873, generally known as ‘British Telecom’.
(24) Case 311/84, Centre belge d’etudes de marché Telemarketing (CBEM) SA y. Compagnie
luxembourgoise de telédiffusion SA and Information Publicité Benelux SA, 3 October 1985
[1985] ECR 3261, Grounds 26 and 27.
(25) See Note @2):
(26) Commission Press release IP(90) 67 of 29. 1. 1990
(27) Cases 6 and 7/73 Commercial Solvents v. Commission [1974] ECR 223; United Brands v.
Commission (Note 13, above).
(28) Commission document COM(90) 314 of 13. 9. 1990.
(29) Reproduced in full in EC Bulletin 10-1984 (point 3.4.1). As to its continued application, see
Commission press release No IP(88) 814 of 15 December 1988.
(30) OJ No L 297, 29. 10. 1990, p. 1.
GB) (See Note 26) Article 27 (1) (a) and (b). The criteria on which the contracting entities shall
base the award of the contracts shall be: (a) the most economically advantageous tender
involving various criteria such as delivery date, period for completion, running costs, cost-
effectiveness, quality, aesthetic and functional characteristics, technical merit, after-sales
services and technical assistance, commitments with regard to spare parts, security of supplies
and price; or (b) the lowest price only.
(32) OJ No L 395, 30. 12. 1989, p. 1; Corrigendum OJ No L 257, 21. 9. 1990, p. 13.
(33) Commission Decision rejecting Plessey’s complaint against the GEC-Siemens bid (Case IV/
33.018 GEC-Siemens/Plessey), OJ No C 239, 25. 9. 1990, p. 2.
(34) British American Tobacco Company Ltd and RJ Reynolds Industries Inc. v. Commission
(Joined Cases 142 and 156/84) of 17. 11. 1987 (1987) ECR 4487.
(35) OJ No C 203, 14. 8. 1990, p. 10.
(36) Decision 86/405/EEC, OJ No L 236, 22. 8. 86, p. 30.
(37) Decision 88/88/EEC, OJ No L 52, 26. 2. 1988, p. 51.
(38) ‘The rights and obligations arising from agreements concluded before the entry into force of
this Treaty between one or more Member States on the one hand and one or more third
countries on the other, shall not be affected by the provisions of this Treaty. To the extent that
such agreements are not compatible with this Treaty, the Member State or States concerned
shall take all appropriate steps to eliminate the incompatibilities established. Member States
shall, where necessary, assist each other to this end and shall, where appropriate, adopt a
common attitude. ... p)
(39) See Commission Decision 87/3/EEC ENI/Montedison, OJ No LS, 7. 1. 1987, p. 13.
(40) See Pabst & Richarz/BNIA, OJ No L 231, 21. 8. 1976, p. 24, AROW/BNIC, OJ No L 379, 31.
12. 1982, p. 1, and Case 123/83 BNIC vy. Clair (1985) ECR 391.
COUNCIL DIRECTIVE OF 5 JUNE 1992 ON THE APPLICATION OF OPEN NETWORK
PROVISION (ONP) TO LEASED LINES (92/44/EEC)
Amended by 397L0051 (OJ L 295 29.10.97 p.23)

Amended by 398D0080 (OJ L 014 20.01.98 p.27)

(1) Whereas Council Directive 90/387/EEC of 28 June 1990 on the establish-
ment of the internal market for telecommunications services through the
implementation of open network provision [4], provides that the Council shall
adopt specific open network provision conditions for leased lines;
(2) Whereas in this Directive the concept of leased lines covers the offer of
transparent transmission capacity between network termination points as a
separate service and does not include on-demand switching or offers which
form part of a switched service offered to the public;
(3) Whereas, in accordance with Commission Directive 90/388/EEC of 28
June 1990 on competition in the markets for telecommunications services [5],
Member States which maintain special or exclusive rights for the provision and
operation of public telecommunications networks shall take the necessary
measures to make the conditions governing access to and use of the network
objective and non-discriminatory and publish them; whereas it is necessary to
harmonize which specifications should be published and under which form, in
order to facilitate the provision of competitive services using leased lines,
within Member States and between Member States, and in particular the
provision of services by companies, firms or natural persons established in a
Member State other than that of the company, firm or natural person for whom
the services are intended;
(4) Whereas, in application of the principle of non-discrimination, leased

lines shall be offered and provided on request without discrimination to all
users;
(5) Whereas the principle of non-discrimination as laid down in the Treaty
applies to, inter alia, availability of technical access, tariffs, quality of service,
provision time (delivery period), fair distribution of capacity in case of scarcity,
repair time, availability of network information and customer proprietary
information, subject to relevant regulatory provisions on data protection;
110
111 Yelecommunications
(6) Whereas a number of technical restrictions have been applied, in

particular for the interconnection of leased lines among each other or for the
interconnection of leased lines and public telecommunications networks;
whereas such restrictions, which impede the use of leased lines for the
provision of competitive services, are not justified, as they can be replaced by
less restrictive regulatory measures;
(7) Whereas, in accordance with Community law, access to and use of leased
lines may only be restricted in application of essential requirements as defined
in this Directive and to safeguard exclusive or special rights; whereas those
restrictions must be objectively justified, must follow the principle of propor-
tionality and must not be excessive in relation to the aim pursued; whereas it is
necessary to specify the application of these essential requirements in respect of
leased lines;
(8) Whereas, in accordance with Directive 90/388/EEC which does not

apply to telex, mobile radiotelephony, paging and satellite services, Member
States shall withdraw all special or exclusive rights for the supply of tele-
communications services other than voice telephony; whereas this is the
commercial provision for the public of the direct transport and switching of
speech in real-time between public switched network termination points,
enabling any user to use equipment connected to such a network termination
point in order to communicate with another termination point;
(9) Whereas Member States may, until the dates provided in Directive 90/
388/EEC prohibit, as regards packet- or circuit-switched data services,
economic operators from offering leased line capacity for simple resale to the
public; whereas there should be no other restriction on the use of leased lines,
in particular in respect of the transmission of signals which are not originated
by the user who subscribed to the leased line offering, the transmission of
signals which are not finally destined for the user who subscribed to the leased
line offering, or the transmission of signals which are neither originated by nor
finally destined for the user who subscribed to the leased line offering;
(10) Whereas, in accordance with Directive 90/387/EEC, the Community-

wide definition of harmonized technical interfaces and access conditions must
be based on the definition of common technical specifications based on
international standards and specifications;
(11) Whereas, in accordance with Directive 90/388/EEC, Member States
which maintain special or exclusive rights for the provision and operation of
public telecommunications networks shall ensure that those who so request can
obtain leased lines within a reasonable period;
(12) Whereas, in order to make leased lines available to a sufficient extent to

users for their own use, for shared use or for the provision of services to third
parties, it is necessary that Member States ensure that a harmonized set of
leased lines with defined network termination points is made available in all
92/44/EEC 112
Member States both for communications within a Member State and between
Member States; whereas it is therefore necessary to determine which type of
leased lines should be included in the harmonized set and within which time
limit if they are not yet available; whereas given the dynamic technological
development in this sector, it is necessary to establish a procedure for adjusting
or enlarging such a set;
(13) Whereas other leased lines, in addition to the harmonized minimum set,
will also be provided subject to market demand and the state of public
telecommunications network; whereas the other provisions of this Directive
apply to these leased lines; whereas however it should be ensured that the
provision of these other leased lines does not impede the provision of the
minimum set of leased lines;
(14) Whereas in conformity with the principle of separation of regulatory and
operational functions and in application of the principle of subsidiarity, the
national regulatory authority of each Member State will play an important role
for the implementation of this Directive;
(15) Whereas common ordering procedures, as well as one-stop ordering and

one-stop billing are needed in order to encourage the use of leased lines
throughout the Community; whereas any cooperation of the telecommunica-
tions organizations in that respect is subject to compliance with Community
competition law; whereas, in particular, such procedures should respect the
principle of cost orientation and should not result in any price fixing or market
sharing;
(16) Whereas the implementation of one-stop ordering and one-stop billing

procedures by telecommunications organizations must not prevent offers by
service providers other than telecommunications organizations;
(17) Whereas, in accordance with Directive 90/387/EEC, tariffs for leased
lines must be based on the following principles; they must be based on objective
criteria and must follow the principle of cost-orientation, taking into account a
reasonable time needed for rebalancing; they must be transparent and properly
published; they must be sufficiently unbundled in accordance with the competi-
tion rules of the Treaty and they must be non-discriminatory and guarantee
equality of treatment; whereas tariffs for leased lines provided by one or more
telecommunications organization must be based on the same principles;
whereas a favourable prejudice is given to a tariff based on a flat-rate periodic
rental, except where other types of tariffs are justified by cost;
(18) Whereas any charge for access to and use of leased lines must comply
with the principles set out above and with the competition rules of the Treaty
and must also take into account the principle of fair sharing in the global cost
of the resources used and the need for a reasonable level of return on
investment which is required for the further development of the telecommuni-
cations infrastructure;
(19) Whereas, in order to ensure the application of the tariff principles set out
in the previous two recitals, telecommunications organizations shall use an
appropriate transparent cost accounting system which can be verified by
accounting experts ensuring the production of recorded figures; whereas such
requirement can be fulfilled for example by the implementation of the principle
of fully distributed costing;
(20) Whereas to enable the Commission to monitor effectively the application

of this Directive, it is necessary that Member States notify to the Commission
which national regulatory authority will be responsible for its implementation
and provide the relevant information requested by the Commission;
(21) Whereas the Committee referred to in Articles 9 and 10 of Directive 90/

387/EEC should play an important role for the application of this Directive;
(22) Whereas disagreements between users and telecommunications organi-
zations on the provision of leased lines will normally be solved between these
parties involved; whereas it must be possible for parties to refer their case to a
national regulatory authority and the Commission in cases where this is
considered necessary; whereas this does not prejudice normal application of
the procedures laid down in Articles 169 and 170 and the competition rules of
the Treaty;
(23) Whereas a specific procedure must be established in order to examine
whether, in justified cases, the time limit set out in this Directive for the
provision of a minimum set of leased lines and for the implementation of an
appropriate cost accounting system may be extended;
(24) Whereas this Directive does not apply to leased lines one network
termination point of which is located outside the Community,

Article 1
Scope
This Directive concerns the harmonization of conditions for open and efficient
access to and use of the leased lines provided to users on public telecommuni-
cations networks, and the availability throughout the Community of a
minimum set of leased lines with harmonized technical characteristics.
Article 2
Definitions
1. The definitions given in Directive 90/387/EEC shall apply, where
relevant, to this Directive.
2. In addition, for the purposes of this Directive,
- leased lines means the telecommunications facilities provided in the
context of the establishment, development and operation of the
public telecommunications network, which provide for transparent
92/44/EEC 114
transmission capacity between network termination points and

which do not include on-demand switching (switching functions
with the user can control as part of the leased line provision),
- ONP Committee means the Committee referred to in Articles 9 and
10 of Directive 90/387/EEC,
— users means end users and service providers, including telecommu-
nications organizations where the latter are engaged in providing
services which are or may be provided also by others,
- national regulatory authority means the body or bodies in each
Member State, legally distinct and functionally independent of the
telecommunications organizations, entrusted by that Member State
inter alia with the regulatory functions addressed in this Directive,
- simple resale of capacity means the commercial provision on leased
lines for the public of data transmission as a separate service,
including only such switching, processing, data storage or protocol
conversion as is necessary for transmission in real time to and from
the public switched network,
— -common ordering procedure means an ordering procedure for the
procurement of intra-Community leased lines which ensures that
there is commonality across the telecommunications organizations
in the information that has to be suplied by the user and the
telecommunications organizations, and in the format in which the
information is presented,
- one-stop-ordering is a system whereby all transactions involving a
user, required for the procurement of intra-Community leased lines,
supplied by more than one telecommunications organization to a
single user, can be completed at one location between the user and a
single telecommunications organization,
— one-stop-billing is a system whereby the billing and payment
transaction for intra-Community leased lines supplied by more
than one telecommunications organization to a single user can be
completed at one location between the user and a single telecom-
munications organization.
Article 3
Availability of information
ie Member States shall ensure that information in respect of leased lines,
offerings on technical characteristics, tariffs, supply and usage condi-
tions, licensing and declaration requirements, and the conditions for the
attachment of terminal equipment is published in accordance with the
presentation given in Annex I. Changes in existing offerings shall be
published as soon as possible and, unless the national regulatory
authority agrees otherwise, no later than two months before the imple-
mentation.
The information referred to in paragraph | shall be published in an
115 VTelecommunications
appropriate manner so as to provide easy access for users to that

information. Reference shall be made in the national Official Journal of
the Member State concerned to the publication of this information.
Member States shall notify to the Commission before 1 January 1993,
and thereafter in case of any change, the manner in which the informa-
tion is made available. The Commission will regularly publish reference
to such notifications.
3. | Member States shall ensure that information concerning new types of
leased line offerings will be published as soon as possible, and no later
than two months before the implementation of the offering.
Article 4
Information on supply conditions
The supply conditions to be published pursuant to Article 3 shall include at
least:
— information concerning the ordering procedure
~ the typical delivery period, which is the period, counted from the date
when the user has made a firm request for a leased line, in which 80 % of
all leased lines of the same type have been put through to the customers.
This period will be established on the basis of the actual delivery periods
of leased lines during a recent time interval of reasonable duration. The
calculation must not include cases where late delivery periods were
requested by users. For new types of leased lines a target delivery period
shall be published instead of the typical delivery period,
- the contractual period, which includes the period which is in general
foreseen for the contract and the minimum contractual period which the
user is obliged to accept,
_ the typical repair time, which 1s the period, counted from the time when a
failure message has been given to the responsible unit within the
telecommunications organization up to the moment in which 80% of all
leased lines of the same type have been re-established and in appropriate
cases notified back in operation to the users. For new types ofleased lines
a target repair time period shall be published instead of the typical repair
time. Where different classes of quality of repair are offered for the same
type of leased lines, the different typical repair times shall be published,
~ any refund procedure.
Article 5
Conditions for the termination of offerings
Member States shall ensure that existing offerings continue for a reasonable
period of time, and that termination of an offering can be done only after
consultation with users affected. Without prejudice to other rights of appeal
provided for by national laws, Member States shall ensure that users can bring
the case before the national regulatory authority where the users do not agree
92/44/EEC 116
with the termination date as envisaged by the telecommunications organiza-

tion.
Article 6
Access conditions, usage conditions and essential requirements
1. Without prejudice to Articles 2 and 3 of Directive 90/388/EEC, Member
States shall ensure that when access to and usage of leased lines 1s
restricted, these restrictions are aimed only at ensuring compliance with
the essential requirements, compatible with Community law, and are
imposed by the national regulatory authorities through regulatory means.
No technical restrictions shall be introduced or maintained for the
intercommunication of leased lines and public telecommunications net-
works.
2. | Where access to and use of leased lines are restricted on the basis of
essential requirements, Member States shall ensure that the relevant
national provisions identify which of the essential requirements listed in
paragraph 3 are the basis of such restrictions.
3. The essential requirements specified in Article 3 (2) of Directive 90/387/
EEC shall apply to leased lines in the following manner:
(a) Security of network operations
A telecommunication organization may take the following measures in order
to safeguard the security of network operations during the period when an
emergency situation prevails:
— the interruption of the service,
~ the limitation of service features,
- the denial of access to the service.
An emergency situation in this context means an exceptional case of force

majeure, such as extreme weather, flood, lightning or fire, industrial action or
lockouts, war, military operations, or civil disorder.
In an emergency situation the telecommunications organization shall make

every endeavour to ensure that service is maintained to all users. The Member
States shall ensure that the telecommunications organization immediately
notifies to the users and to the national regulatory authority the beginning
and the end of the emergency as well as the nature and extent of temporary
service restrictions;
(b) Maintenance of network integrity

The user has the right to be provided with a fully transparent service, in
conformity with the specifications of the network termination point, which he
can use in an unstructured manner as he wants, e.g. where no channel
allocations are forbidden or prescribed. There shall be no ¢estrictions on the
use of leased lines on the ground of the maintenance of network integrity, as
long as the access conditions related to terminal equipment are fulfilled;
(c) Interoperability of services

Without prejudice to the application of Article 3 (5) and Article 5 (3) of
Directive 90/387/EEC, the use of a leased line shall not be restricted on the
grounds of the interoperability of services, when the access conditions related
to terminal equipment are fulfilled;
(d) Protection of data
In respect of data protection, Member States may restrict the use of leased lines
only to the extent necessary to ensure compliance with relevant regulatory
provisions on the protection of data including protection of personal data, the
confidentiality of information transmitted or stored, as well as the protection of
privacy compatible with Community law.
4. Access conditions related to terminal equipment
Access conditions related to terminal equipment are considered to be
fulfilled when the terminal equipment complies with the approval condi-
tions set out for its connection to the network termination point of the
type of leased line concerned, in accordance with Directive 91/263/EEC
[6].
In the case where a user’s terminal equipment does not comply or no
longer complies with these conditions, the provision of the leased line
may be interrupted until the terminal is disconnected from the network
termination point.
Member States shall ensure that the telecommunications organization
immediately informs the user about the interruption, giving the reasons
for the interruption. As soon as the user has ensured that the non-
complying terminal equipment is disconnected from the network termi-
nation point, the provision of the leased line shall be restored.
Article 7
Provision of a minimum set of leased lines in accordance with harmonized
technical characteristics
1. Member States shall ensure that the respective telecommunications
organizations separately or jointly provide a minimum set of leased lines
in accordance with Annex II, in order to guarantee a harmonized offering
throughout the Community.
2. | Where leased lines which implement the standards listed in Annex II are
not yet available, Member States shall take the necessary measures to
ensure that these types of leased lines will be implemented by the date
resulting from the application of Article 15.
3. The modifications necessary to adapt Annex II to new technical develop-
ments and to changes in market demand, including the possible deletion
of certain types of leased lines from the Annex, shall be adopted by the
Commission under the procedure provided for in Article 10 of Directive
90/387/EEC, taking into account the state of development of national
networks.
92/44/EEC 118
4. The provision of other leased lines beyond the minimum set of leased
lines which must be provided by Member States shall not impede the
provision of this minimum set of leased lines.
Article 8
Control by the national regulatory authority
te Member States shall ensure that the national regulatory authority lays
down the procedures whereby it decides, on a case-by-case basis and in
the shortest time period, to allow or not telecommunications organiza-
tions to take measures such as the refusal to provide a leased line, the
interruption of the provision of leased lines or the reduction of the
availability of leased line features for reasons of alleged failure to comply
with the usage conditions by users of leased lines. These procedures may
also foresee the possibility for the national regulatory authority to
authorize, a priori, specified measures in the case of defined infringe-
ments of usage conditions.
Member States shall ensure that these procedures provide for a transpar-
ent decision-making process in which due respect is given to the rights of
the parties. The decision shall be taken after having given the opportunity
to both parties to state their case. The decision shall be motivated and
notified to the parties within one week of its adoption: it shall not be
enforced before its notification.
This provision shall not prejudice the right of the parties concerned to
apply to the courts.
The national regulatory authority shall ensure that telecommunications
organizations adhere to the principle of non-discrimination when they
make use of the public telecommunications network for providing
services which are or may be provided also by other service providers.
When telecommunications organizations use leased lines for the provi-
sion of services not covered by special and/or exclusive rights, the same
type of leased lines must be provided to other users on request and under
equal conditions.
Where, in response to a particular request, a telecommunications
organization considers it unreasonable to provide a leased line under its
published tariffs and supply conditions, it must seek the agreement of the
national regulatory authority to vary those conditions in that case.
Article 9
Common ordering and billing procedures
in Member States shall encourage the establishment, by 31 December 1992
at the latest, in conformity with the procedural and substantive rules of
competition of the Treaty and in consultation with users, of:
— a common ordering procedure for leased lines throughout the
Community,
- a one-stop-ordering procedure for leased lines, to be applied where
requested by the user,
_ one-stop-billing procedure for leased lines, to be applied where

requested by the user. The procedure shall foresee that all price
elements resulting from the national leased lines and the respective
parts of international leased lines provided by the telecommunica-
tions organizations involved are identified separately in the bill for
the user.
2. Member States shall report to the Commission one year after this
Directive is brought into effect on the results achieved with respect to
the procedures provided for in paragraph 1. These results shall be
examined by the ONP Committee.
Article 10
Tariffing principles and cost accounting
1. Member States shall ensure that tariffs for leased lines follow the basic
principles of cost orientation and transparency in accordance with the
following rules:
(a) tariffs for leased lines shall be independent of the type of application
which the users of the leased lines implement;
(b) tariffs for leased lines shall normally contain the following ele-
ments:
- an initial connection charge,
- a periodic rental charge, 1.e. a flat-rate element.
When other tariff elements are applied, these must be transparent and based on
objective criteria;
(c) tariffs for leased lines apply to the facilities provided between
network termination points at which the user has access to the
leased lines.
For leased lines provided by more than one telecommunications organi-
zation, half-circuit tariffs, i.e. from one network termination point to a
hypothetical mid-circuit point, can be applied.
2. Member States shall ensure that their telecommunications organizations
formulate and put in practice, by 31 December 1993 at the latest, a cost
accounting system suitable for the implementation of paragraph 1.
Without prejudice to the last subparagraph, the system referred to in the
first subparagraph shall include the following elements:
(a) the costs of leased lines shall in particular include the direct costs
incurred by the telecommunications organizations for setting up,
operating and maintaining leased lines, and for marketing and
billing of leased lines;
(b) common costs, that is costs which can neither be directly assigned
to leased lines nor to other activities, are allocated as follows:
(i) | whenever possible, common cost categories shall be allocated
based upon direct analysis of the origin of the costs them-
selves;
92/44/EEC 120
(ii) when direct analysis is not possible, common cost categories

shall be allocated based upon an indirect linkage to another
cost category or group of cost categories for which a direct
assignment or allocation is possible. The indirect linkage shall
be based on comparable cost structures;
(iii) when neither direct nor indirect measures of cost allocation
can be found, the cost category shall be allocated based upon
a general allocator computed by using the ratio of all expenses
directly assigned or allocated to, on the one hand, services
which are provided under special or exclusive rights and, on
the other hand, to other services.
After 31 December 1993, other cost accounting systems may be applied
only if they are suitable for the implementation of paragraph 1 and have
as such been approved by the national regulatory authority for applica-
tion by the telecommunications organization, subject to the Commission
being informed prior to their application.
The national regulatory authority shall keep available, with an adequate
level of detail, information on the cost accounting systems applied by the
telecommunications organizations pursuant to paragraph 2. It shall
submit this information to the Commission on request.
Article 11
Notification and reporting
Ls Member States shall notify before 1 January 1993 to the Commission
their national regulatory authority as defined in Article 2, fourth indent.
Z The national regulatory authority shall make available statistical reports
showing the performance in relation to the supply conditions, in
particular with respect to delivery time and repair time, published in
accordance with Article 3 at least for each calendar year. The reports
shall be sent to the Commission no later than five months after the end of
the annual reporting period.
The national regulatory authority shall keep available and submit to the
Commission on request the data on cases where the access to or use of
leased lines has been restricted, in particular because of alleged infringe-
ments of special or exclusive rights or the prohibition of simple resale of
capacity, as well as details of the measures taken, including their
motivation.
Article 12
Conciliation procedure Without prejudice to:
(a) any action that the Commission or any Member State might take
pursuant to the Treaty, and in particular Articles 169 or 170 thereof;
(b) the rights of the person invoking the procedure in paragraphs | to 5 of
this Article of the telecommunications organizations concerned or any
other person under applicable national law, except in so far as they enter
into an agreement for the resolution of issues between them;
the following conciliation procedure shall be available to the user:

b: Any user complaining that he has been or may be injured by the
infringement of the provisions of this Directive, particularly regarding
intra-Community leased lines, shall have the right to appeal to the
national regulatory authority or authorities.
Where agreement cannot be reached at a national level, the aggrieved
party may invoke the procedure provided for in paragraphs 3 and 4, by
way of a written notification to the national regulatory authority and the
Commission.
Where the national regulatory authority or the Commission finds that
there is a case for further examination, following a notification based on
paragraph 2, it can refer it to the Chairman of the ONP Committee.
In the case referred to in paragraph 3, the Chairman of the ONP
Committee shall initiate the procedure described below if he is satisfied
that all reasonable steps have been taken at a national level:
(a) the Chairman of the ONP Committee shall convene as soon as
possible a working group including at least two members of the
ONP Committee and one representative of the national regulatory
authorities concerned and the Chairman of the ONP Committee or
another official of the Commission appointed by him. The working
group shall normally meet within 10 days of the meeting being
convened. The Chairman may decide, upon proposal of any of the
members of the working group, to invite a maximum of two other
persons as experts to advise it.
(b) the working group shall give the party invoking this procedure, the
national regulatory authorities of the Member States, and the
telecommunications organizations involved the opportunity to
present their opinions in oral or written form;
(c) the working group shall endeavour to reach agreement between the
parties involved. The Chairman shall inform the ONP Committee
of the results of this procedure.
The party invoking the procedure referred to in this Article shall bear its
own costs of participating in this procedure.
Article 13
Deferment of certain obligations
ibs When a Member State is not able to or can foresee that it will not be able
to fulfil the requirements of Article 7 (1) or (2) or Article 10 (1) or (2), it
shall notify the Commission of the reasons.
Deferment of the obligations under Article 7 (1) or (2) can be accepted
only in cases where the Member State concerned can prove that the
actual state of development of its public telecommunications network or
the conditions of demand are such that the obligations under Article 7
would impose an excessive burden on the telecommunications organiza-
tion in that Member State.
92/44/EEC 122
3. | Deferment of the obligations under Article 10 (1) or (2) can be accepted

only in cases where the Member State concerned can prove that the
fulfilment of the requirements would impose an excessive burden on the
telecommunications organization in that Member State.
4. |The Member State shall inform the Commission of the date by which the
requirements can be met and of the measures envisaged in order to meet
this deadline.
5. When the Commission receives a notification in accordance with para-
graph 1, it shall inform the Member State whether it deems that the
particular situation of the Member State concerned justifies, on the basis
of criteria set out in paragraphs 2 and 3, a deferment for this Member
State of the application of Article 7 (1) or (2) of Article 10 (1) or (2) and
until which date such deferment is justified.
6. No deferment can be granted in application of paragraph 2 where the
non-compliance with Article 7 results from activities of telecommunica-
tions organizations of the Member State concerned in competitive areas
within the meaning of Community law.
Article 14
The Commission shall examine and report to the European Parliament and to
the Council on the functioning of this Directive, on the first occasion not later
than three years after this Directive is brought into effect. The report shall be
based inter alia on the information provided by the Member States to the
Commission and to the ONP Committee. Where necessary, further measures
can be proposed in the report for the full implementation of the aims of the
Directive.
Article 15
1. Member States shall take the measures necessary to comply with this
Directive before 5 June 1993. They shall forthwith inform the Commis-
sion 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.
2. | Member States shall inform the Commission of the main provisions of
national law which they adopt in the field governed by this Directive.
Article 16
This Directive is addressed to the Member States. Done at Luxembourg, 5 June
1992:
For the Council
The President
Joaquim FERREIRA DO AMARAL
(1) OJ No C58, 7. 3. 1991, p. 10.

(2) OJ No C 305, 25. 11. 1991, p. 61 and Decision of 13 May 1992 (not yet published in the
Official Journal).
(3) OJ No C 269, 14. 10. 1991, p. 30.
(4) OJ NoL 192, 24. 7. 1990, p. 1.
(5) OJ No L 192, 24. 7. 1990, p. 10.
(6) Council Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of the
Member States concerning telecommunications terminal equipment, including the mutual
recognition of their conformity (OJ No L 128, 23. 5. 1991, p. 1).
ANNEX I
Presentation of the information to be provided in respect of leased lines in
accordance with Article 3 (1)
The information referred to in Article 3 (1) of this Directive shall follow the
presentation given below:
A. Technical characteristics
The technical characteristics include the physical and electrical characteristics
as well as the detailed technical and performance specifications which apply at
the network termination point, without prejudice to Council Directive 83/189/
EEC of 28 March 1983 laying down a procedure for the provision of
information in the field of technical standards and regulations (1). Clear
reference shall be made to the standards implemented.
Be Tariffs
The tariffs include the initial connection charges, the periodic rental charges,
and other charges. Where tariffs are differentiated, e.g. for reasons of different
levels of quality of service or the number of leased lines provided to a user (bulk
provision), this must be indicated.
C. Supply conditions
The supply conditions include at least the elements defined in Article 4 (1).
D._ Licensing requirements

The information on licensing requirements, licensing procedures and/or
licensing conditions provides a complete overview of all factors which have an
impact on the usage conditions set out for leased lines. It shall include the
following information, where applicable:
1. a clear description of the service categories for which the licensing
procedures have to be followed and for which the licensing conditions
have to be met by the user of the leased line or by his customers;
2}. information on the character of the licensing conditions, in particular
whether such licence is of a general nature which does not require
individual registration and/or authorization, or whether the licensing
conditions require registration and/or authorization on an individual
basis;
92/44/EEC 124
3. aclear indication of the validity in time of the licence, including a review

date, where applicable;
4. the conditions resulting from the application of the essential require-
ments in conformity with Article 6;
5. other obligations which the Member States may impose on the users of
leased lines in accordance with Directive 90/388/EEC as regards packet-
or circuit-switched data services, requiring the adherence to conditions of
permanence, availability, or quality of service;
6. aclear reference to conditions aiming at the enforcement of the prohibi-
tion to provide services for which exclusive and/or special rights have
been maintained by the Member State concerned in conformity with
Community law;
7. alist referring to all documents containing licensing conditions which the
Member State imposes on the users of leased lines when these are using
leased lines for the provision of services to others.
E. Conditions for the attachment of terminal equipment
The information on the attachment conditions includes a complete overview of
the requirements which terminal equipment to be attached to the relevant
leased line has to fulfil in accordance with Directive 91/263 /EEC.
(1) OJ No L 109, 26. 4. 1983, p. 8. Directive last amended by Commission Decision 90/230/EEC
(OJ No L 128, 18. 5. 1990, p. 15).
ANNEX II
Definition of a minimum set of leased lines with harmonized technical
characteristics, in accordance with Article 7, to be provided as soon as
possible and not later than the date on which this Directive is brought
into effect
Leased line type Technical characteristics [1] Interface specifications Perfor-

mance specifications Ordinary quality voice bandwidth 2 or 4 wire analogue
CCITT M. 1040 Special quality voice bandwidth 2 or 4 wire analogue CCITT
M. 1020/M. 1025 64 kbit/s digital CCITT G. 703 [2] Relevant CCITT G. 800
series recommendations 2 048 kbit/s digital
unstructured CCITT G. 703 Relevant CCITT G. 800 series recommendations
2 048 kbit/s digital
structured CCITT G. 703 and G. 704
(excluding section 5) [3] Relevant CCITT G. 800 series recommendations

In-service monitoring [4]
(1) The CCITT recommendations referenced refer to the 1988 version. ETSI
has been requested to carry out further work on standards for leased
lines.
(2) The majority of applications are converging towards the G. 703 specifica-
tion. For an interim period, leased lines may be provided using other
interfaces, based on X.21 or X.21 (a), instead of G. 703.
(3) With cyclic redundancy checking in accordance with CCITT G. 706.
(4) In-service monitoring can facilitate improved maintenance by the tele-
communications organization.
For the types of leased lines listed above, the specifications referred to also
define the network termination points (NTPs), in accordance with the defini-
tion given in Article 2 of Directive 90/387/EEC.
CoUNCIL RESOLUTION OF 19 NOVEMBER 1992 ON THE IMPLEMENTATION IN
THE COMMUNITY OF THE EUROPEAN RADIOCOMMUNICATIONS COMMITTEE
DECISIONS (92/C 318/01)
THE COUNCIL OF THE EUROPEAN COMMUNITIES

Whereas the Council resolution of 28 June 1990 [1] calls for the strengthening
of European cooperation in the field of radio frequency coordination with the
objective of providing sufficient frequency spectrum for new services, accord-
ing to market demand and taking account of the requirements of existing
services and of different categories of users; whereas that resolution saw the
development of the existing Conference of Postal and Telecommunications
Administrations (CEPT) coordination mechanisms as a major policy goal, and
noted with satisfaction in that context the creation of the European Radio-
communications Office (ERO);
Whereas the CEPT European Radiocommunications Committee (ERC) con-

sists of representatives of the radio regulatory authorities in all CEPT Member
countries, responsible for the allocation and assignment of radio frequencies
within their respective countries;
Whereas the ERC is developing working methods to allow wide consultation

with telecommunication organizations and other service providers, industry
and users, and cooperation and interaction with the European Telecommunica-
tions Standards Institute (ETSI) and the Commission of the European
Communities;
Whereas the Commission participates in the work of the ERC with the special
status of Counsellor;
Whereas the ERC is establishing the ERO as a centre for expertise to develop
proposals especially for long-term plans for the use of the radio frequency
spectrum in Europe;
Whereas the ERC has introduced a mechanism for the adoption of ERC
decisions on significant harmonization measures in the field of radiocommuni-
cations;
Whereas the Commission has submitted to the Council proposals for directives
on common frequency bands to be designated for the coordinated introduction
of the Terrestrial Flight Telecommunications System (TFTS) and Road
Transport Telematics (RTT) systems, in the Community;
Whereas the ERC has adopted decisions on the provision of suitable frequency
bands for the introduction in Europe of TFTS and RTT systems;
Whereas these systems are important trans-European telecommunications
developments;
126
Whereas the commitment of all Member States to the implementation of the

ERC decisions on TFTS and RTT systems will ensure the provision of the
necessary frequencies for these systems,
RESOLVES:
1. that in future, Member States should actively participate in the develop-
ment of ERC decisions aimed at supporting the provision of significant
Europe-wide radio services, taking account of the obligations of Member
States under Community law, in particular the competition rules, and the
general policy goals defined in the Council Resolution of 28 June 1990;
2. that Member States should commit themselves to implementing the ERC
decisions on frequency bands to be designated for the coordinated
introduction of TFTS and RTT systems, according to the procedure
adopted by the ERC.
INVITES THE COMMISSION:

to give full consideration in future to the mechanism of ERC decisions as the
primary method of ensuring the provision of the necessary frequencies for new
Europe-wide radio services.
(1) Council Resolution of 28 June 1990 on the strengthening of the European-wide cooperation
on radio frequencies, in particular with regard to services with a pan-European dimension (OJ
No C 166, 7. 7. 1990, p. 4).
COUNCIL RESOLUTION OF 29 JUNE 1995 ON THE FURTHER DEVELOPMENT OF
MOBILE AND PERSONAL COMMUNICATIONS IN THE EUROPEAN UNION
(95/C 188/02)
THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,
Whereas, as a result of the 1992 review of the telecommunications sector, the
Council, in its resolution 93/C 213/01 of 22 July 1993 [1], called on the
Commission to publish a Green Paper on mobile and personal communica-
tions, which the Commission adopted on 27 April 1994;
Whereas the Commission consulted widely on this basis and has submitted a
communication to the European Parliament and Council on the outcome of the
consultation on the Green Paper on mobile and personal communications,
1. WELCOMES the broad consultation carried out by the Commission on
the main principles and objectives of the Green Paper on Mobile and
Personal Communications and NOTES the consensus resulting from it,
as well as those areas where a full consensus was not achieved.
2. SUPPORTS the drawing up of a regulatory framework which should
foster the development of the mobile and personal communications
sector in conformity with the overall reform of the telecommunications
sector.
3. CONSIDERS AS PRIORITY OBJECTIVES for the development of the
mobile and personal communications sector to ensure within the Union:
(a) generalized competition for the provision of mobile and personal
communications and granting of licences according to objective,
transparent, proportional and non-discriminatory criteria;
(b) that the number of mobile and personal communications licences
granted may be limited only on the grounds of essential require-
ments, such as the efficient use of the frequency spectrum;
(c) fair competition in the mobile and personal communications
market, in particular through compliance with the ban on anti-
competitive cross-subsidizing;
(d) within the framework of the general reform of telecommunications
and taking account of the need to promote fair competition, the
appropriate combination of mobile and fixed communications
services;
(e) the removal of regulatory obstacles to the possibility of concluding in
a non-discriminatory way marketing contracts for mobile and perso-
nal communications services with this activity governed by a Code of
Conduct in order to ensure the protection of consumer interests;
(f) that Member States should authorize, as soon as possible, operators
to interconnect directly mobile with fixed communications net-
128
works or mobile networks with each other;

(g) the deployment by Member States of their best efforts to put in
place at the earliest opportunity a scheme for the free establishment
and use of infrastructure by mobile and personal communications
services operators in the pursuit of the activities for which they are
licensed;
(h) in the framework of the activities of the European Radiocommuni-
cations Committee (ERC) and in accordance with Council resolu-
tion 90/C 166/04 of 28 June 1990 (2), a better-balanced allocation
of the frequency spectrum between its various uses;
on the basis of the ERC’s decision-making machinery, the timely
making available of adequate frequency bands in order to support
the priority development and introduction of mobile and personal
communications technologies and systems complying with Eur-
opean standards;
(j) prior to 1 June 1996, the specification of a harmonized licensing
approach for satellite-based mobile and personal communications,
after investigation by the European Committee for Telecommunica-
tions Regulatory Affairs (ECTRA).
4. NOTES THE NEED FOR ADDITIONAL ACTION in the following

areas:
(a) establishing clear schedules for standardization, numbering and

frequencies for mobile and personal communications;
(b) establishing the conditions necessary to achieve mutual recognition
of conformity for all radiocommunications terminals;
(c) examining in detail a range of areas linked to the public interest,
namely:
- the possible effects of radio frequency emission on public
health and personal safety,
- he employment growth opportunities and the training require-
ments this development might generate,
- issues relating to consumer protection,- the aesthetic and
environmental problems which may be created by the installa-
tion of antennae,
(d) Continuing support for evolution towards the Universal Mobile
Telecommunications System (UMTS), as the principal contribution
towards future personal communications.
> EMPHASIZES the importance of comparable and effective access to
third-country markets and of full recourse to international standards
where possible, with regard to mobile and personal communications
technologies, equipment and services.
6. NOTES the Commission’s intention of supporting the creation of a
European Mobile and Personal Communications Services Forum.
95/C 188/02 130
7. NOTES the proposals put forward by the Commission in its communica-

tion.
8. INVITES the Commission to propose to the European Parliament and
the Council measures which will contribute to the achievement of the
priority objectives and principal additional action referred to above.
9. REQUESTS THE COMMISSION TO REPORT TO THE EUROPEAN
PARLIAMENT AND THE COUNCIL on the progress made with
regard to the implementation and effects of the measures referred to in
this resolution by | January 1997.
(RONG C VisnGnsaloosmpme le
(2) OJ No C 166, 7. 7. 1990, p. 4.
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 13
DECEMBER 1995 ON THE APPLICATION OF OPEN NETWORK PROVISION (ONP)
TO VOICE TELEPHONY (95/62/EC)
Official Journal L 321/6, 30/12/95
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE

EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in
particular Article 100a thereof,
Acting in accordance with the procedure laid down in Article 189b of the
Treaty [3],

ment of the internal market for telecommunications services throughout the
implementation of open network provision [4] provides inter alia for the
adoption of a specific Directive establishing open network provision conditions
for the voice telephony service;
(2) Whereas in accordance with Directive 90/387/EEC, open network
provision (ONP) applies to public telecommunications networks and, where
applicable, public telecommunications services; whereas therefore the applica-
tion of ONP to the voice telephony service must also include the application of
ONP to the network over which the voice telephony service is provided;
(3) Whereas ONP conditions for access to and use of the fixed public
telephone networks and services must apply to all the network technologies
currently in use in Member States, including analogue telephone networks,
digital networks and the integrated services digital network (ISDN);
(4) Whereas this Directive does not apply to mobile telephony services;
whereas it does apply to the use of fixed public telephone networks by
operators of public mobile telephony services, in particular with respect to the
interconnection of mobile telephone networks with the fixed public telephone
network in a single Member State, in order to achieve comprehensive
Community-wide services; whereas this Directive does not apply to direct
interconnection between operators of public mobile telephony services;
(5) Whereas this Directive does not apply to services or facilities provided at
network termination points located outside the Community;
(6) Whereas Commission Directive 90/388/EEC of 28 June 1990 on compe-

tition in the markets for telecommunications services [5] requires Member
States to abolish exclusive rights for the supply of telecommunications services
131
other than voice telephony; whereas Directive 90/388/EEC does not apply to
telex, mobile radiotelephony and paging services;
(7) Whereas some Member States have abolished exclusive rights for the
provision of voice telephony and the public telecommunications network;
whereas those Member States should ensure that all users can subscribe to
harmonized telephony services in accordance with this Directive; whereas the
provisions of this Directive should not hinder entry to markets for voice
telephony or the provision of the public telecommunications network;
(8) Whereas the voice telephony service has become important for social and
economic reasons, and everyone in the Community should have the right to
subscribe to this service; whereas in application of the principle of non-
discrimination, voice telephony service must be offered and provided on
request without discrimination to all users; whereas the principle of non-
discrimination applies to, inter alia, availability of technical access, tariffs,
quality of service delivery period, fair distribution of capacity in the event of
scarcity, repair time, availability of network information and customers’
information, subject to relevant legislation concerning the protection of
personal data and privacy;
(9) Whereas in accordance with Directive 90/388/EEC, Member States

which maintain exclusive rights for the provision and operation of public
telecommunications networks must take the necessary measures to make the
conditions governing access to and use of the network objective and non-
discriminatory and to publish them; whereas it is necessary to harmonize which
specifications should be published and in what form, in order to facilitate the
provision of telecommunications services within and between Member States,
and in particular the provision of services by companies, firms or natural
persons established in a Member State other than that of the company, firm or
natural person for which or for whom the services are intended;
(10) Whereas in conformity with the principle of separation of regulatory and

operational functions, national regulatory authorities have been created in the
Member States; whereas in application of the principle of subsidiary, the
national regulatory authority of each Member State should play an important
role in the implementation of this Directive, particularly in matters relating to
the publication of targets and performance statistics, dates for the implementa-
tion of new facilities, adequate consultation with users/consumers and user/
consumer organizations, the control of numbering plans, the supervision of
conditions of use, and the resolution of disputes and in ensuring that users are
given fair treatment throughout the Community; whereas they should have the
necessary means to carry out these tasks fully;
(11) Whereas quality of service as perceived by users is an essential aspect of
the service provided, and quality-of-service parameters and achieved perfor-
mance levels should be published for the benefit of users; whereas harmonized
DS/62LEC (35
quality-of-service parameters and common measurement methods are required

in order to assess Community-wide convergence of quality of service; whereas
different categories of user require different levels of quality of service, for
which different tariffs may be appropriate;
(12) Whereas users of the fixed public telephone networks should have at
least similar rights when dealing with telecommunications organizations as
they have with the providers of other goods and services, and telecommunica-
tions organizations should not have any undue legal protection when dealing
with users of the fixed public telephone network;
(13) Whereas agreement between the parties involved can constitute a

contract; whereas, in order to avoid unfair contractual clauses, it is necessary
that national regulatory authorities have the right to require modifications of
conditions imposed by telecommunications organizations on users in their
contracts; whereas Member States may decide whether their national regula-
tory authority shall check these contractual conditions either before their use
by telecommunications organizations, or at any time at the user’s request;
(14) Whereas Council Directive 93/13/EEC of 5 April 1993 on unfair terms
in consumer contracts [6] already provides general protection for consumers
with regard to contractual terms; whereas nevertheless for the purpose of this
Directive it is necessary to complete this general protection by adding more
specific rules which should apply to all users;
(15) Whereas in addition to the basic voice telephony service made available
to users it is desirable to ensure that, subject to technical feasibility and
economic viability, a harmonized minimum set of advanced voice telephony
facilities is offered to users for communications both within and between
Member States;
(16) Whereas an agreement on a modus vivendi between the European
Parliament, the Council and the Commission concerning the implementating
measures for acts adopted in accordance with the procedure laid down in
Article 189b of the EC Treaty was reached on 20 December 1994;
(17) Whereas the provision of other voice telephony facilities, provided in

response to market demand in addition to the harmonized minimum set of
voice telephony facilities described herein, should not impede the provision of
the basic voice telephony facilities and should not lead to unreasonable
increases in the prices for basic voice telephony service;
(18) Whereas harmonized conditions for the voice telephony service should
allow Member States flexibility to determine the timescales for implementa-
tion, given the different situations with regard to technical development of the
network and market demand;
(19) Whereas the Commision has issued Guidelines on the application of
Community competition rules in the telecommunications sector [7] in order
inter alia to clarify the application of Community competition law when

telecommunications organizations cooperate in order to implement Commu-
nity-wide interconnectivity between public networks and services;
(20) Whereas, in order to provide efficient and effective telecommunications
services, and to offer new applications, telecommunications service providers
and other users may, in accordance with the principles of Community law,
request access to the fixed public telephone network at points other than the
network termination points offered to the majority of telephone users; whereas
such requests must be reasonable in terms of technical feasibility and economic
viability; whereas procedures must be introduced to provide a balance between
the requirements of users and the justified concerns of telecommunications
organizations; whereas it is essential that in making full and efficient use of the
fixed public telephone network via such special network access, the integrity of
the public network is maintained;
(21) Whereas in accordance with the definition in Directive 90/387/EEC, the
network termination point may be located on the premises of a telecommunica-
tions organizations; whereas installation of equipment owned by service
providers on the premises of a telecommunications organization is not
specifically called for in this Directive;
(22) Whereas it is necessary for adequate safeguards to be implemented by

national regulatory authorities in order to ensure that telecommunications
organizations do not discriminate against service providers with whom they
are in competition, including, in particular, safeguards to ensure fair access to
network interfaces; whereas the tariffs which apply to telecommunications
organizations when using the fixed public telephone network for the provision
of telecommunications services should be the same as the tariffs which apply to
other users;
(23) Whereas users should benefit from economies of scope and scale which
may result from new intelligent network architectures; whereas the develop-
ment of the Community market in telecommunications services calls for the
widest availability of facilities such as those defined in this Directive; whereas
the principle of non-discrimination should be applied in a manner that does
not hinder the development of advanced telecommunications services;
(24) Whereas telecommunications organizations should be encouraged to
establish the necessary cooperation mechanisms in order to ensure full
Community-wide interconnectivity between public networks, in particular for
the voice telephony service; whereas national regulatory authorities should
facilitate such cooperation; whereas such interconnection should be subject to
regulatory supervision in order to safeguard the interests of users throughout
the Community and ensure compliance with Community law, where appro-
priate in compliance with the existing international regulatory framework
within the scope of the International Telecommunications Union (ITU);
9S/627HEC V35
whereas therefore national regulatory authorities should have the right of

access to full information about network interconnection agreements where
required; whereas the Commission may request from Member States details of
special network access agreements and interconnection agreements in so far as
Community law so provides;
(25) Whereas interconnection of public telephone networks is essential for

the provision of Community-wide voice telephony services; whereas it is the
responsibility of national regulatory authorities to ensure that the conditions
governing interconnection with the fixed public telephone networks, including
interconnection by telecommunications organizations from other Member
States and operators of public mobile telephony services, are objective and
non-discriminatory in accordance with Directive 90/387/EEC;
(26) Whereas where the fixed public telephone network in a Member State is
operated by more than one telecommunications organizations, appropriate
supervision of interconnection arrangements by national regulatory authorities
is necessary in order to guarantee Community-wide provision of the voice
telephony service; whereas such interconnection arrangements should take due
account of the principles laid down in this Directive;
(27) Whereas the principle of non-discrimination in relation to interconnec-
tion primarily aims at preventing abuse of a dominant position by telecommu-
nications organizations;
(28) Whereas in accordance with Directive 90/387/EEC common, efficient

tariff principles, based on objective criteria and cost orientation, should be
applied throughout the Community; whereas a reasonable transition period
may be necessary in order to implement these tariff principles fully; whereas
tariffs must nevertheless be transparent and properly published, must be
sufficiently unbundled in accordance with the competition rules of the Treaty,
and must be non-discriminatory and guarantee equality of treatment; whereas
application of the principle of cost orientation should take account of the
objective of universal service and may take account of town and country
planning policies aimed at ensuring cohesion within a Member State;
(29) Whereas national regulatory authorities should have responsibility for
supervising tariffs; whereas tariff structures should evolve in response to
technological development and user demand; whereas the requirement for
cost-oriented tariffs means that telecommunications organizations should
implement within a reasonable time limit cost accounting systems by which
costs can be allocated to services as accurately as possible on the basis of a
transport cost accounting system; whereas such requirements can be fulfilled
for example by implementation of the principle of fully distributed costing;
(30) Whereas, within the overall principle of cost orientation, some flexibility
is needed, under supervision of the national regulatory authority, in order to
allow discount schemes for certain uses, or socially desirable tariffs for
particular groups of people, for particular types of call, or a particular times of

day; whereas discount schemes must be compatible with the competition rules
of the Treaty, and in particular with the general principle that the conclusion of
contracts must not be subject to acceptance of unrelated supplementary
obligations; whereas, in particular, discount schemes must not link the supply
of services provided under special or exclusive rights with services provided
competitively;
(31) Whereas users must be able to check the correctness of their bills by
being given the possibility of itemized bills with a degree of detail compatible
with user needs and with relevant legislation on data protection and privacy;
(32) Whereas directories of users who subscribe to the voice telephony service
should be readily available, since they are an important element for use of the
voice telephony service; whereas directory information should be made
available on fair and non-discriminatory terms; whereas users should have the
choice of being included or excluded from directories, in conformity with
relevant legislation on data protection and privacy; whereas this Directive does
not change the regulatory situation regarding the supply of directories;
(33) Whereas public pay-telephones provide an important means of access to

the voice telephony service, especially in emergencies, and it is desirable to
ensure that they are available to meet the reasonable needs of users;
(34) Whereas, recognizing that users would benefit from a single type of
telephone payment card usable in all Member States, the Commission has
given the European Committee for Standardization (CEN)/The European
Committee for Electrotechnical Standardization (Cenelec) a mandate to
develop suitable standards; whereas, in addition to these standards, commer-
cial agreements are needed to ensure that pre-payment cards issued in one
Member State can be used in other Member States;
(35) Whereas, within each Member State, measures may be taken to assist
groups of people with special needs; whereas this may include provisions
relating to the voice telephony service, because it is recognized as an important
service for disabled people;
(36) Whereas the Commission has requested the European Telecommunica-

tions Standards Institute (ETSI) to study the technical feasibility and economic
viability of a harmonized single line network interface suitable for access to
and use of the fixed public telephone network in all Member States; whereas, to
ensure harmonized access for ISDN terminal equipment, it is desirable to set
requirements for the corresponding network termination point, including
specifications for the socket;
(37) Whereas national telephone numbers are a resource which should be
controlled by national regulatory bodies; whereas numbering schemes should
be developed in close consultation with telecommunications organizations and
OO2/EC N37
in harmony with a long-term Europe-wide numbering framework and the

international numbering scheme; whereas number changes are expensive for
both telecommunications organizations and users, and should be kept to a
minimum compatible with national and international long-term requirements;
(38) Whereas the Council resolution of 19 November 1992 on the promotion
of Europe-wide cooperation on numbering of telecommunications services [8]
regards as a major policy goal the strengthening of cooperation on the
numbering arrangements for services with pan-European applications; whereas
there is a need to create a European numbering area in order to facilitate the
implementation and use of Europe-wide voice telephony services; including
freephone/green numbers;
(39) Whereas in accordance with Directive 90/388/EEC Member States

which make the supply of telecommunications services subject to a licensing
or declaration procedure must ensure that the conditions for the grant of
licences are objective, non-discriminatory and transparent, that reasons are
given for any refusal, and that there is a procedure for appealing against any
such refusal; whereas conditions for using the fixed public telephone network
must be compatible with Community law and in particular Directive 90/387/
EEC; whereas in accordance with Council Directive 92/44/EEC of 5 June
1992 on the application of open network provision to leased lines [9], any
restrictions aimed at ensuring compliance with the essential requirements
should be compatible with Community law and imposed by the national
regulatory authorities through regulatory means; whereas no technical restric-
tions may be introduced or maintained for the interconnection of leased lines
and public telephone networks;
(40) Whereas in accordance with Directive 90/387/EEC the essential re-

quirements on the basis of which restrictions on access and use of public
telecommunications networks or services are justified are limited to the
security of network operations, maintenance of network integrity, interoper-
ability of services in justified cases and protection of data as appropriate;
whereas, in addition, the conditions generally applicable to the connection of
terminal equipment apply; whereas national regulatory authorities may
authorize procedures whereby a telecommunications organization can act
immediately in the event of a serious breach of conditions of access or use;
(41) Whereas the principle of transparency should apply to the standards
upon which voice telephony services are based; whereas in accordance with
Directive 90/387/EEC, the harmonization of technical interfaces and access
conditions must be based on common technical specifications which take
account of international standardization; whereas in accordance with Council
Directive 83/189/EEC of 28 March 1983 laying down a procedure for the
provision of information in the field of technical standards and regulations
[10], new national standards must not be developed in areas where harmonized
European standards are under development;
(42) Whereas, to enable the Commission to monitor effectively the applica-

tion of this Directive, it is necessary that Member States notify to the
Commission which national regulatory authorities will be responsible for the
functions created by this Directive and the provision of the relevant informa-
tion called for in this Directive;
(43) Whereas, in addition to the rights of recourse granted under national or
Community law, there is a need for a simple conciliation procedure for disputes
at both national and Community level; whereas this procedure should be
responsive, inexpensive and transparent and should involve all the parties
concerned;
(44) Whereas telecommunications services are subject to consumer protec-
tion legislation, data protection legislation and legislation concerning dissemi-
nation of information or material which may be considered offensive by the
general public, and therefore no specific additional measures are envisaged in
this Directive;
(45) Whereas transparency would be improved by regular and systematic

dialogue with telecommunications organizations, users, consumers, manufac-
turers and service providers as regards Community-wide issues raised by this
Directive; whereas consultation with trade unions is already covered by
Commission Decision 90/450/EEC [11] which set up, to assist the Commis-
sion, a Joint Committee on Telecommunications Services consisting of
representatives of employers and employees;
(46) Whereas given the dynamic development of this sector, the application
of open network provision to voice telephony must be a progressive and
ongoing process, and the regulatory conditions must be flexible enough to meet
the demands of a changing market and changing technology; whereas a
responsive procedure for technical adjustment should therefore be established
which takes full account of the views of Member States and involves the ONP
Committee;
(47) Whereas a procedure will probably have to be introduced for ensuring

Community-wide convergence by determining harmonized targets and target
dates for voice telephony services and facilities; whereas such a convergence
procedure should involve the ONP Committee; whereas in such a procedure
full account must be taken of the state of network development and market
demand in the Community;
(48) Whereas the goal of an advanced cost-effective Community-wide voice
telephony service — an essential foundation of the internal market — cannot be
realized satisfactorily at Member State level, and hence is better achieved at
Community level by the adoption of this Directive;
(49) Whereas Decision 91/396/EEC [12] requires the introduction in the
Community of a single European emergency call number [12]; whereas Council
95/02 /EC: 139
Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of

the Member States concerning telecommunications terminal equipment, in-
cluding the mutual recognition of their conformity [13], defines the conditions
for connection of terminal equipment to the fixed public telephone network;
(50) Whereas Europe is shifting towards an information-based economy;
whereas open access to networks is a critical issue at world level; whereas the
Council has agreed a timetable for the liberalization of all telecommunications
services, networks and infrastructures; whereas a balanced policy of liberal-
ization and harmonization, including accompanying measures for universal
service, will continue to ensure that business, industry and the public can access
modern, economic and efficient communications infrastructures over which a
rich and diverse range of services will be offered;
(51) Whereas the Council resolution of 22 July 1993 [14] calls on the
Commission to introduce the necessary proposals for legislation by 1 January
1996 and to consider how to adjust open network provision to future
developments,
HAVE ADOPTED THIS DIRECTIVE,

Article 1
Scope
1. This Directive concerns the harmonization of conditions for open and
efficient access to and use of fixed public telephone networks and public
telephony services, and the availability throughout the Community of a
harmonized voice telephony service.
2 This Directive does not apply to mobile telephony services in so far as it
concerns interconnection between the networks used for public mobile
telephony services and the fixed public telephone networks.
Article 2
Definitions
relevant, to this Directive.
2 For the purpose of this Directive: — ‘fixed public telephone network’
means the public switched telecommunications network which is used,
inter alia, for the provision of voice telephony service between network
termination points at fixed locations, — ‘users’ means end-users, including
consumers (e.g. residential end-users), and service providers, including
telecommunications organizations where the latter provide services
which are or may be provided also by others, — ‘national regulatory
authority’ means the body or bodies in each Member State, legally
distinct and functionally independent of the telecommunications organi-
zations, entrused by that Member State, inter alia, with the regulatory
functions addressed in this Directive, — ‘ONP Committee’ means the
committee created by Article 9 (1) of Directive 90/387/EEC, — ‘public
pay-telephone’ means a telephone available to the general public, for the

use of which the means of payment are coins, credit/debit cards and/or
pre-payment cards.
Article 3
Provision of service, connection of terminal equipment and use of their network
Member States shall ensure that the respective telecommunications organiza-
tions separately or jointly provide a fixed public telephone network and a voice
telephony service in accordance with the provisions of this Directive, in order
to guarantee a harmonized offering throughout the Community. In particular
Member States shall ensure that users can:
(a) obtain on request a connection to the fixed public telephone network;
(b) connect and use approved terminal equipment situated on the users’
premises, in accordance with national and Community law. Member
States shall ensure that no restrictions other than those referred to in
Article 22 are placed on the use made of the connection provided.
Article 4
Publication of and access to information
1. | National regulatory authorities shall ensure that adequate and up-to-date
information on access to and use of the fixed public telephone network
and voice telephony service is published according to the list of headings
given in Annex IJ. Changes in existing service offerings and information
on new offerings shall be published as soon as possible. The national
regulatory authority may lay down a suitable period of notice.
2. The information referred to in paragraph 1 shall be published in such a
way as to provide easy access for users to that information. Reference
shall be made in the national Official Journal of the Member State
concerned to the publication of this information.
3. National regulatory authorities shall notify to the Commission no later
than one year after the adoption of this Directive — and thereafter in the
event of any change — the manner in which the information referred to in
paragraph | is made available; the Commission shall regularly publish a
corresponding reference to such notifications in the Official Journal of the
Article 5
Targets for supply time and quality of services
1. National regulatory authorities shall ensure that targets are set and
published for the supply-time and quality-of-service indicators listed in
Annex II. Definitions, measurement methods and the performance of
telecommunications organizations in relation to those targets shall be
published annually. Definitions, measurement methods and targets shall
be reviewed at least every three years by the national regulatory
authority.
2. Publication shall be in the manner laid down in Article 4.
95/62/EC 141
3. | Where appropriate, the Commission shall, in consultation with the ONP

Committee, acting in accordance with the procedure laid down in Article
30, request ETSI to draw up European standards for common definitions
and measurement methods.
Article 6
1. National regulatory authorities shall ensure that service offerings con-
tinue for a reasonable period of time and that termination of an offering,
or a change that materially alters the use that can be made of it, can take
place only after consultation with users affected and an appropriate
public notice period set by the national regulatory authority.
2. Without prejudice to other rights of appeal provided for by national law,
Member States shall ensure that users, acting where national law
provides for this in conjunction with organizations representing user
and/or consumer interests, can bring before the national regulatory
authority cases where the users affected do not agree with the termination
date envisaged by the telecommunications organization.
Article 7
User contracts
1. National regulatory authorities shall ensure that users have a contract
which specifies the service to be provided by a telecommunications
organization. National regulatory authorities shall as a general rule
require compensation and/or refund arrangements to be provided if the
contracted service quality levels are not met, and shall ensure that any
exceptions to this rule are justified by the telecommunications organiza-
tion or organizations concerned and made clear in the users’ contract.
2. | Telecommunications organizations shall respond to a request for connec-
tion to the fixed public telephone network without delay and shall give the
user an estimated date for provision of service.
3. National regulatory authorities shall be able to require alteration of the
conditions of contracts and the conditions of any compensation and/or
refund schemes used by telecommunications organizations. Users’ con-
tracts with telecommunications organizations shall contain a summary of
the method of initiating procedures for the settlement of disputes.
4. Member States shall ensure that users have the right to institute
proceedings against a telecommunications organization.
Article §
Variation of published conditions
Where in response to a particular request a telecommunications organization
considers it unreasonable to provide a connection to the fixed public telephone
network under its published tariffs and supply conditions, it must seek the
agreement of the national regulatory authority to vary those conditions in that
case.
Article9
Provision of advance facilities
1. National regulatory authorities shall ensure the provision, subject to
technical feasibility and economic viability, of the facilities listed in
Annex III (1), in accordance with the technical standards identified in
Article 24.
2. National regulatory authorities shall facilitate and encourage provision
of the services and facilities listed in Annex III (2), in accordance with the
technical standards identified in Article 24, through commercial arrange-
ments between telecommunications organizations and where applicable
other persons providing the service or facilities, in compliance with the
competition rules of the Treaty and in response to user demand.
3. National regulatory authorities shall ensure that dates for the introduc-
tion of the facilities listed in Annex III (1):are set, taking into account the
state of network development, market demand and progress with
standardization, and are published in the manner laid down in Article 4.
They shall similarly encourage the setting and publication of dates for the
services and facilities listed in Annex III (2).
Article 10
Special network access
1. National regulatory authorities shall ensure that telecommunications
organizations respond to reasonable requests from users other than: (a)
operators of public mobile telephony services; (b) telecommunications
organizations when providing a voice telephony service; for access to the
fixed public telephone network at network termination points other than
the network termination points referred to in Annex 1. Where in response
to a particular request a telecommunications organization considers it
unreasonable to provide the special network access requested, it must
seek the agreement of the national regulatory authority to restrict or deny
that access. Users affected must be given the opportunity to put their case
to the national regulatory authority before a decision is taken. Where a
request for special network access is denied, the user making the request
must be given a prompt and reasoned explanation as to why the request
has been refused; however, this provision shall not apply to any action
taken under national regimes for the enforcement of licensing conditions
in conformity with Community law or to proceedings before a national
court.
2. Technical and commercial arrangements for special network access shall
be a matter for agreement between the parties involved, subject to
intervention by the national regulatory authority as laid down in para-
graphs 1, 3 and 4. The agreement may include reimbursement to the
telecommunications organization of the cost incurred inter alia in provid-
ing the network access requested; these changes shall fully respect the
principles of cost orientation set out in Annex II to Directive 90/387/EEC.
95/62/EC 143
National regulatory authorities may intervene on their own initiative at

any time, and shall do so if requested by either party, in order to set
conditions that are non-discriminatory, are fair and reasonable for both
parties and offer the greatest benefit to all users.
National regulatory authorities shall also have the right, in the interest of
all users, to ensure that the agreements include conditions that meet the
criteria set out in paragraph 3, are entered into and implemented in an
efficient and timely manner and include conditions on conformity with
relevant standards, compliance with essential requirements and/or the
maintenance of end-to-end quality.
Conditions set by national regulatory authorities in accordance with
paragraph 4 shall be published in the manner laid down in Article 4.
National regulatory authorities shall ensure that telecommunications
make use of the fixed public telephone network for providing services
which are or may also be supplied by other service providers.
The Commission shall, in consultation with the ONP Committee, acting
in accordance with the procedure laid down in Article 30, request ETSI to
draw up, where appropriate, standards for new types of network access.
Reference to such standards shall be published in the Official Journal of
the European Communities in accordance with Article 5 (1) of Directive
90/387/EEC.
Details of agreements for special network access shall be made available
to the national regulatory authority upon request.
Article 11
Interconnection
if National regulatory authorities shall ensure that reasonable requests for
interconnection with the fixed public telephone network from the
organizations listed below are met, in particular to ensure Community-
wide provision of voice telephony services: (a) telecommunications
organizations providing fixed public telephone networks in other Mem-
ber States, whose names have been notified in accordance with Article 26
(3); (b) operators of public mobile telephony services in the same Member
State. No request for interconnection shall be refused by a telecommuni-
cations organization without the prior agreement of its national regula-
tory authority. Interconnection with the fixed public telephone network
of operators of public mobile telephony services in other Member States,
whose names have been notified in accordance with Article 26 (3), may
also be agreed between the parties involved. No request for such
interconnection shall be refused by a telecommunications organization
without the prior agreement of its national regulatory authority.
Technical and commercial arrangements for interconnection shall be a
matter for agreement between the parties involved, subject to intervention
by the national regulatory authority as laid down in Article 10 (3) and (4).
3 National regulatory authorities shall ensure that telecommunications

enter into interconnection agreements with others.
If interconnection agreements include specific compensation provisions
for the telecommunications organization in situations where different
operating conditions, e.g. price controls or universal service obligations,
are imposed upon the respective parties, such compensation provisions
shall be cost-oriented, non-discriminatory and fully justified, and shall
only be applied with the approval of the national regulatory authority
acting in accordance with Community law.
Details of interconnection agreements shall be made available, upon
request, to the national regulatory authorities concerned.
Article 12
Tariff principles and transparency
i National regulatory authorities shall ensure that tariffs for use of the fixed
public telephone network and the voice telephony service follow the basic
principles of transparency and cost orientation set out in Annex II to
Directive 90/387/EEC, and comply with the provisions of this Article.
Without prejudice to application of the principle of cost orientation,
national regulatory authorities may impose on telecommunications
organizations tariff constraints relating to the objectives of universal
telephone-service accessibility, including town and country planning
aspects.
Tariffs for access to and use of the fixed public telephone network shall be
independent of the type of application which the users implement, except
to the extent that they require different services or facilities.
Tariffs for facilities additional to the provision of connection to the fixed
public telephone network and provision of voice telephony service shall,
in accordance with Community law, be sufficiently unbundled, so that the
user is not required to pay for facilities which are not necessary for the
service requested.
Tariffs shall normaily contain the following elements, each of which
should be itemized separately for the user: — an initial charge for
connection to the fixed public telephone network and subscription to the
voice telephony service, — a periodic rental charge based on the type of
service and facilities selected by the user, — usage charges which may,
inter alia, take account of peak and off-peak periods. Where other tariff
elements are applied, they must be transparent and based on objective
criteria.
Tariffs shall be published in the manner laid down in Article 4.
Tariff changes shall be implemented only after an appropriate period of
public notice set by the national regulatory authority.
95/62/EC 145
Article 13
Cost accounting principles
be Member States shall ensure that their telecommunications organizations
notified in accordance with Article 26 (2) operate by 31 December 1996
at the latest a cost accounting system suitable for the implementation of
Article 12 and that compliance with such a system is verified by a
competent body which is independent of those organizations. A state-
ment concerning compliance shall be published periodically.
National regulatory authorities shall ensure that a description of the cost
accounting system showing the main categories under which costs are
gathered and the rules used for the allocation of costs to the voice
telephony service is made available on request. National regulatory
authorities shall submit, on request, to the Commission information on
the cost accounting systems applied by the telecommunications organiza-
tions.
Without prejudice to the last subparagraph of this paragraph, the system
referred to in paragraph | shall include the following elements: (a) the
costs of the voice telephony service shall in particular include the direct
costs incurred by the telecommunications organizations in setting up,
operating and maintaining the voice telephony service and in marketing
and billing the service. (b) common costs, that is to say costs which can be
directly assigned to neither the voice telephony service nor other activ-
ities, shall be allocated as follows: (i) whenever possible, common cost
categories shall be allocated on the basis of direct analysis of the origin of
the costs themselves; (11) when direct analysis is not possible, common
cost categories shall be allocated on the basis of an indirect linkage to
another cost category or group of cost categories for which a direct
assignment or allocation is possible; the indirect linkage shall be based on
comparable cost structures; (iii) when neither direct nor indirect mea-
sures of cost allocation can be found, the cost category shall be allocated
on the basis of a general allocator, computed by using the ratio of all
expenses directly or indirectly assigned or allocated, on the one hand, to
the voice telephony service and, on the other hand, to other services.
Other cost accounting systems may be applied if they are suitable for the
implementation of Article 12 and have been approved as such by the
national regulatory authority for application by the telecommunications
organizations, subject to the Commission being informed prior to their
application.
Detailed accounting information shall be made available to the national
regulatory authority on request and in confidence.
Member States shall ensure that the financial accounts of those tele-
communications organizations notified in accordance with Article 26 are
drawn up, published and submitted for audit in accordance with the
provisions of national legislation.
Article 14
Discounts, low-usage schemes and other specific tariff provisions
1. National regulatory authorities may agree that bulk discount schemes
can be offered to users and shall make those schemes subject to super-
vision by the national regulatory authority.
2. National regulatory authorities may agree special tariffs for the provision
of socially useful services such as emergency services, or for low-usage
users or specific social groups.
3. National regulatory authorities shall ensure that tariff structures allow
for reduced-rate calls within the Community at off-peak times, including
night-time and weekends if appropriate.
4. National regulatory authorities shall ensure that, where special tariffs are
introduced for voice telephony services provided in connection with
specific projects of limited duration, they shall be subject to prior
notification to the national regulatory authority.
Article 15
Itemized billing
National regulatory authorities shall ensure that targets are set and published
for the provision of itemized billing as a facility available to users on request,
taking into account the state of network development and market demand.
Subject to the following paragraph and the level of detail permitted under
relevant legislation on the protection of personal data and privacy, itemized
bills shall show the composition of the charges incurred. Calls which are free of
charge to the caller, including calls to helplines, shall not be identified in the
caller’s itemized bill. Within this framework, different levels of detail may be
offered to users at reasonable tariffs.
Article 16
Directory services
Subject to the requirements of relevant legislation on the protection of personal
data and privacy, national regulatory authorities shall ensure that: (a) direc-
tories of subscribers to the voice telephony service are made available to users
in either printed or electronic form, and are updated on a regular basis; (b)
users have the right to have or not to have an entry in publicly available
directories; (c) telecommunications organizations make available on request
public directory information concerning the voice telephony service on
published terms which are fair, reasonable and non-discriminatory.
Article 17
Provision of public pay-telephones
National regulatory authorities shall ensure that public pay-telephones are
provided to meet the reasonable needs of users, in terms of both numbers and
geographical coverage, and that it is possible to make emergency calls from
such telephones. Calls to the single European emergency call number referred
to in Decision 91/396/EEC shall be free of charge.
95/62/EC 147
Article 18
Telephone pre-payment cards
0 The Commission shall ensure that standards for a harmonized telephone
pre-payment card suitable for use in pay-telephones in all Member States,
and associated network interface standards, are drawn up by ETSI and/
or CEN/Cenelec, in order to make it possible for pre-payment cards
issued in one Member State to be used in other Member States. A
reference to these standards and to associated standards shall be
published in the Official Journal of the European Communities.
National regulatory authorities shall encourage the progressive introduc-
tion of public pay-telephones conforming to these standards.
Article 19
Specific conditions for disabled users and people with special needs
National regulatory authorities may draw up specific conditions to aid disabled
users and people with special needs in their use of the voice telephony service.
Article 20
Specifications for network access, including the socket
i Where appropriate, the Commission shall, in consultation with the ONP
30, request ETSI to draw up standards for new types of harmonized
network access, in accordance with the reference framework set out in
Annex II (2) to Directive 90/387/EEC. References to these standards
shall be published in the Official Journal of the European Communities.
Where voice telephony service is supplied to users over the ISDN
network at the S/T reference point, national regulatory authorities shall
ensure that, after the implementation of this Directive, the introduction
of a new network termination point complies with the relevant physical
interface specifications, in particular those for the socket, referenced in
the list of standards published in the Official Journal of the European
Communities.
Article 21
Numbering
df. Member States shall ensure that national telephone numbering plans are
controlled by national regulatory authorities, in order to ensure fair
competition. In particular, the procedures for allocating individual
numbers and numbering ranges shall be transparent, equitable and timely
and the allocation shall be carried out in an objective, transparent and
non-discriminatory manner.
National regulatory authorities shall ensure that the main elements of the
national numbering plan and all subsequent additions or amendments to
them are published, subject only to limitations imposed on the grounds of
national security.
National regulatory authorities shall encourage appropriate use of any
European numbering schemes for the provision of the facilities identified

in Annex III (2).
Article 22
Conditions of access and use and essential requirements
Ls Member States shall ensure that conditions which restrict access to and
use of fixed public telephone networks or voice telephony services are
based only on the grounds given in paragraphs 3, 4 and 5, and are subject
to the agreement of the national regulatory authority.
National regulatory authorities shall draw up procedures in order to
decide, on a case-by-case basis and as soon as possible, whether or not to
allow telecommunications organizations to take measures such as the
refusal to provide access to the fixed public telephone network or the
interruption or reduction in availability of voice telephony service, on the
grounds of a user’s alleged failure to comply with the conditions of use.
These procedures may also provide for the possibility of the national
regulatory authority authorizing a priori specified measures in the event
of defined infringements of the conditions of use. The national regulatory
authority shall ensure that these procedures provide for a transparent
decision-making process which respects the rights of the parties. The
decision shall be taken after both parties have been given the opportunity
to state their case. The decision shall be duly substantiated and notified to
the parties within one week of its adoption. A summary of these
procedures shall be published in the manner laid down in Article 4. This
provision shall not prejudice the rights of the parties concerned to apply
to the courts.
Any restrictions placed upon users on the basis of special or exclusive
rights for voice telephony shall be imposed through regulatory means and
shall be published in accordance with Article 4.
Conditions for connection of terminal equipment to. the fixed public
telephone network shall comply with Directive 91/263/EEC and shall
be published in accordance with Article 4 of this Directive. Without
prejudice to the provisions of Directive 91/263/EEC, where a user’s
terminal equipment does not comply or no longer complies with its
approval conditions, or where it malfunctions in a way which adversely
affects the integrity of the network, or where there is a danger of physical
injury to persons, national regulatory authorities shall ensure that the
following procedure is followed: — service provision may be interrupted
by the telecommunications organization until the terminal is discon-
nected from the network termination point, — the telecommunications
organization shall immediately inform the user about the interruption,
giving the reasons for it, — as soon as the user has ensured that the
terminal equipment is disconnected from the network termination point,
service provision shall be restored.
When access to or use of the fixed public telephone network is restricted
95/62/EC 149
on the basis of essential requirements, national regulatory authorities

shall ensure that the relevant national provisions identify which of the
essential requirements set out in (a) to (d) below are the basis of such
restrictions. Restrictions imposed on the basis of essential requirements
shall be published in the manner laid down in Article 4. Restrictions
derived from essential requirements shall be imposed through regulatory
means. Without prejudice to Articles 3 (5) and 5 (3) of Directive 90/387/
EEC, the essential requirements specified in Article 3 (2) of that Directive
shall apply to the fixed public telephone network and voice telephony
service in the following manner:
(a) Security of network operations. There shall be no restrictions on
access to and use of the fixed public telephone network on the
grounds of security of network operations except in emergency
situations, when a telecommunications organization may take the
following measures in order to safeguard the security of network
operations: — interruption of service, — limitation of service features,
— denial of access to the network and service for new users. An
emergency situation in this context means catastrophic network
breakdown or an exceptional case of force majeure, such as extreme
weather, flood, lightning or fire, industrial action or lockout, war,
military operations or civil disorder. In an emergency situation the
telecommunications organization shall make every endeavour to
ensure that service is maintained to all users. National regulatory
authorities shall ensure that telecommunications organizations
have procedures in place whereby users and the national regulatory
authority are immediately informed of the beginning and the end of
the emergency, as well as the nature and extent of temporary service
restrictions.
(b) Maintenance of network integrity. National regulatory authorities
shall ensure that restrictions on access to and use of the fixed public
telephone network on the grounds of maintenance of network
integrity, in order to protect inter alia network equipment, software
or stored data, are kept to the minimum necessary to provide for
normal operation of the network. Restrictions shall be based on
published, objective criteria and shall be applied in a non-discrimi-
natory manner.
(c) Interoperability of services. When terminal equipment has been
approved and is operating in compliance with Directive 91/263/
EEC, no further restrictions on use shall be imposed on the grounds
of interoperability of services. Where the national regulatory
authority imposes conditions concerning interoperability of ser-
vices in contracts relating to interconnection of public networks or
special network access, those conditions shall be published in the
manner laid down in Article 4.
(d) Protection of data. Member States may restrict access to and use of
the fixed public telephone network on the grounds of protection of
data only to the extent necessary to ensure compliance with relevant
regulatory provisions on the protection of data, including protec-
tion of personal data, the confidentiality of information transmitted
or stored, and the protection of privacy, in a manner compatible
with Community law.
6. National regulatory authorities shall ensure that, where appropriate,
users are informed in advance by appropriate means by the telecommu-
nications organizations of periods when access to or use of the fixed
public telephone network may be restricted or denied as a result of
planned maintenance activity.
Article 23
Non-payment ofbills
Member States shall authorize specified measures, which shall be published in
the manner laid down in Article 4, to cover non-payment of bills and any
consequent service interruption of disconnection. These measures shall ensure
that any service interruption is confined to the service concerned, as far as
technically feasible, and that due warning is given to the user beforehand.
Article 24
Technical standards
1. National regulatory authorities shall encourage the provision of services
according to the standards listed below: — standards published in the
Official Journal of the European Communities, in accordance with
Article 5 (1) of Directive 90/387/EEC, or, in the absence of such
standards, European standards adopted by ETSI, or CEN/Cenelec, or,
in the absence of such standards, — international standards or recommen-
dations adopted by the International Telecommunications Union (ITU),
the International Organization for Standardization (ISO) or the Interna-
tional Electrotechnical Commission (IEC), or, in the absence of such
standards, — national standards or specifications, without prejudice to
reference to European standards, which reference may be made compul-
sory under Article 5 (3) of Directive 90/387/EEC.
2. National regulatory authorities shall ensure that telecommunications
organizations inform users on request of standards or specifications,
including any European and/or international standards which are im-
plemented through national standards, in accordance with which the
services and facilities in this Directive are provided.
Article 25
Provisions for Community-wide convergence
1. On the basis of the reports provided by the national regulatory autho-
rities under Article 26 (5) and the information published under Article 4,
the Commission shall review progress towards convergence of targets
95/62/EC 151
and implementation of common services and facilities within the Com-

munity.
If implementation of the requirements of Articles 5, 9 or 15 appears
inadequate to ensure the provision of harmonized service and facilities to
users at a Community level, harmonized targets and target dates may be
determined in accordance with the procedure laid down in Article 31.
The procedure initiated by the Commission shall take full account of the
state of network development and market demand in all individual
Member States.
In particular with regard to those facilities requiring Community-wide
cooperation described in Article 9 (2), where commercial agreements
between telecommunications organizations cannot be concluded, condi-
tions necessary to achieve the provision of harmonized facilities to users
may be recommended. The recommendations shall take due account of
the state of network development, the various architectures and market
demand in the Community.
Article 26
ly; Member States shall notify the name of their national regulatory
authority to the Commission by 13 December 1996.
Member States shall notify to the Commission the names of the
telecommunications organizations to which the Directive applies, in
particular to ensure the provision of the network and service in
accordance with Article 3. Without prejudice to the future applicability
of ONP measures, Member States which habe abolished exclusive rights
for voice telephony may apply this Directive to organizations defined on
the basis of a significant market share or on the basis of a dominant
position in their authorized area of operation, in such a way as to ensure
that at every point in their territory at least one organization is subject to
the provisions of this Directive. Member States may ensure that tele-
communications organizations are obliged to supply the information
necessary to determine the application of this Directive.
National regulatory authorities shall notify to the Commission the names
of the telecommunications organizations in their territory which are
authorized to interconnect their fixed networks directly with those of
telecommunications organizations in other Member States in order to
provide voice telephony service. National regulatory authorities shall
notify to the Commission the names of the operators of public mobile
telephony services in their territory which are authorized to interconnect
directly with the fixed networks of telecommunications organizations in
other Member States in order to provide voice telephony service.
The Commission shall publish the names referred to in paragraph 2 and 3
in the Official Journal of the European Communities.
National regulatory authorities shall, each for the matters for which it is
responsible, make available to the Commission once each calendar year a

report covering the progress made in achieving the targets agreed by
them under Articles 5, 9 and 15. The annual report shall be sent to the
Commission within five months of the end of the year.
National regulatory authorities shall keep available and submit to the
Commission on request details of individual cases brought before them,
other than those covered by Article 23, where access to the public
telephone network or voice telephony service or use of the network or
service has been restricted or denied, including the measures taken and
their justification. However, this provision shall not apply to any action
taken under national regimes for the enforcement of licensing conditions
in conformity with Community law, or to proceedings before a national
court.
Article 27
Conciliation of national dispute resolution
Without prejudice to: (a) any action that the Commission or any Member State
may take pursuant to the Treaty; (b) the rights of the person invoking the
procedure in paragraphs 3 and 4, of the telecommunications organizations
concerned or of any other person under applicable national law, except in so
far as they enter into an agreement for the resolution of disputes between them;
(c) the provisions of this Directive which allow the national regulatory
authorities to set the terms of contracts between telecommunications organiza-
tions and users, the following procedures shall be available to the user:
1. Member States shall ensure that any party, including users, service
providers, consumers, or other telecommunications organizations having
an unresolved dispute with a telecommunications organization concern-
ing an alleged infringement of the provisions of this Directive, shall have
a right of appeal to the national regulatory authority or another
independent body. Easily accessible and in principle inexpensive proce-
dures shall be created at national level to resolve such disputes in a fair,
transparent and timely manner. These procedures shall also apply in
cases where users are in dispute with a telecommunications organization
about their telephone bills.
A user or a telecommunications organization may, where the dispute
involves telecommunications organizations in more than one Member
State, invoke the conciliation procedure provided for in paragraphs 3 and
4 by means of a written notification to the national regulatory authority
and to the Commission. Member States may also allow their national
regulatory authority to invoke the conciliation procedure.
Where the national regulatory authority or the Commission finds that
there is a case for further examination, following a notification based on
paragraph 2, it can refer the matter to the Chairman of the ONP
Committee.
In the circumstances referred to in paragraph 3, the Chairman of the
DSHO2/EC S83
ONP Committee shall initiate the procedure described below if he is

satisified that all reasonable steps have been taken at national level: (a)
the Chairman of the ONP Committee shall convene as soon as possible a
working group including at least two members of the ONP Committee
and one representative of the national regulatory authorities concerned,
and the Chairman of the ONP Committee or another official of the
Commission appointed by him. The working group shall be chaired by
the representative of the Commission and shall normally meet within ten
days of having been convened. The Chairman of the working group may
decide, upon proposal by any of the members of the working group, to
invite a maximum of two other persons as experts to advise it; (b) the
working group shall give the party invoking this procedure, the national
regulatory authorities of the Member States involved and the telecommu-
nications organizations involved the opportunity to present their opi-
nions in oral or written form; (c) the working group shall endeavour to
reach agreement between the parties involved within three months of the
date of receipt of the notification referred to in paragraph 2. The
Chairman of the ONP Committee shall inform that Committee of the
results of the procedure so that it may express its views.
5. The party invoking the procedure shall bear its own costs of participating
in this procedure.
Article 28
I. When a Member State is unable to or can foresee that it will be unable to
fulfil the provisions of Articles 12 and 13, it shall notify the Commission
of the reasons.
Deferment of obligations under Articles 12 or 13 can be accepted only in
cases where the Member States concerned can prove that fulfilment of the
obligation would impose an excessive burden on the telecommunications
organizations in that Member State.
The Member State shall inform the Commission of the date by which the
obligation can be fulfilled and of the measures envisaged in order to meet
the deadline.
When the Commission receives a notification in accordance with para-
graph 1, it shall inform the Member State whether the particular situation
of the Member State concerned justifies, on the basis of criteria set out in
paragraph 2, a deferment for that Member State of the application of
Article 12 or Article 13 and until which date such deferment is justified.
Article 29
Technical adjustment
Modifications necessary to adapt Annex I (2), Annexes II and III to
technological developments or to changes in market demand shall be deter-
mined in accordance with the procedure laid down in Article 31.
Article 30
Advisory Committee procedure
1. The Commission shall be assisted by the Committee set up by Article 9
(1) of Directive 90/387/EEC. The Committee shall, in particular, consult
the representatives of the telecommunications organizations, users,
consumers, manufacturers and service providers.
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
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 31
Regulatory Committee procedure
iv Notwithstanding the provisions of Article 30, the following procedure
shall apply in respect of the matters covered by Articles 25 and 29.
® The representative of the Commission shall submit to the Committee a
the majority laid down in Article 148 (2) of the EC Treaty in the case of
within the Committee shall be weighted in the manner set out in that
Article. The Chairman shall not vote.
taken. The Council shall act by a qualified majority. If, within a period of
three months from the date of referral to the Council, the Counicl has not
acted, the proposed measures shall be adopted by the Commission.
Article 32
Review
is The European Parliament and the Council shall decide by 1 January
1998, on the basis of a proposal which the Commission will submit to
them in good time, on the revision of this Directive to adapt it to the
requirements of market liberalization.
The Commission shall examine and report to the European Parliament
and to the Council on the functioning of this Directive, on the first
DS/O27EC 55
occasion not later than 13 December 1998. The report shall be based inter
alia on the information provided by the Member States to the Commis-
sion and to the ONP Committee. Where necessary, further measures may
be proposed in the report for full implementation of the aims of the
Directive.
Article 33
Implementation
Directive before 13 December 1996. They shall forthwith 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 reference shall be laid down by the Member States.
Article 34
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 Communities.
Article 35
Done at Brussels, 13 December 1995.
For the European Parliament
The President K. HAENSCH
For the CouncilThe President
J.L. DICENTA BALLESTER
(1) OJ No C 122, 18. 5. 1995, p. 4.

@) OJ Noi€ 236; 11,951995; p. 38:
(3) Opinion of the European Parliament of 16 May 1995 (OJ No C 151, 19. 6. 1995, p. 27),
common position of the Council of 12 July 1995 (OJ No C 281, 25. 10. 1995, p. 19), Decision
of the European Parliament of 26 October 1995 (OJ No C 308, 20. 11. 1995) and Council
Decision of 27 November 1995.
(4) OJ No L 192, 24. 7. 1990, p. 1.
(5) OJ No L 192, 24. 7. 1990, p. 10. Directive as amended by Directive 94/46/EC (OJ No L 268,
19. 10. 1994, p. 15).
(6) OJ NoL95, 21. 4. 1993, p. 29.
(GC) OF NO C233 5659 99 ap. 2
(8) OJ No C 318, 4. 12. 1992, p. 2.
(9) 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).
(10) OJ No L 109, 26. 4. 1983, p. 8. Directive as last amended by Directive 94/10/EC of the
European Parliament and of the Council (OJ No L 100, 19. 4. 1994, p. 30).
(11) OJ No L 230, 24. 8. 1990, p. 25.
(12) OJ No L 217, 6. 8. 1991, p. 31.
(13) OJ No L 128, 23. 5. 1991, p. 1. Directive as last amended by Directive 93/97/EEC (OJ No L
290, 24. 11. 1993, p. 1).
(AOU NoIe DIS. 648. 1993. spile
ANNEX I
Headings for information to be published in accordance with Article 4
1. Name(s) and address(es) of telecommunications organization(s) 1.e.

name(s) and head office address(es) of the telecommunications organiza-
tion(s) providing fixed public telephone networks and/or voice telelphony
services.
2. Telecommunications services offered.
oF Types of connection to the public fixed telephone network. Techni-
cal characteristics of interfaces at commonly provided network
termination points are required, including where applicable refer-
ence to national and/or international standards or recommenda-
tions, in accordance with Article 24: — for analogue and/or digitally
presented networks: (a) single line interface; (b) multi-line interface;
(c) direct dialling-in (DDI) interface; (d) other interfaces commonly
provided, — for ISDN: (a) specification of basic and primary rate
interfaces at the S/T reference points, including the signalling
protocol; (b) details of bearer services able to carry voice telephony
services; (c) other interfaces commonly provided, — and any other
interfaces commonly provided. In addition to the above informa-
tion to be published on a regular basis in the manner laid down in
Article 4, telecommunications organizations must inform terminal
equipment suppliers, without undue delay, of any particular net-
work characteristics which affect the correct operation of approved
terminal equipment.
ROR Telephone services offered. Description of the basic voice telephony
service offered, indicating what is included in the subscription
charge and the periodic rental charge (e.g. operator services,
directories, maintenance). Description of optional facilities and
features of the voice telephony service which are tariffed separately
from the basic offering, including where applicable reference to the
relevant technical standards or specifications to which they con-
form, in accordance with Article 24.
Desk Tariffs covering access, usage, maintenance, and including details
of any discount schemes.
2.4. Compensation/refund policy including specific details of any com-
pensation/refund schemes offered.
Zao Types of maintenance service offered.
2.6. Ordering procedure including designated contact points within the
telecommunications organization.
pA Standard contract conditions including any minimum contractual
period.
95/O2Z(EC 157
Licensing requirements. This shall include a clear description of all

licensing conditions which have an impact on users, including service
providers, containing at least: — information on the nature of the licensing
conditions, in particular whether registration and/or authorization is
required on an individual basis, or whether the licence is of a general
nature which does not require individual registration and/or authoriza-
tion, — the duration of any relevant licences or authorizations, — a list
referring to all documents containing relevant licensing conditions which
the Member State imposes.
Conditions for attachment of terminal equipment. This shall include a
complete overview of requirements for terminal equipment as regulated
by the national regulatory authority, in line with the provisions of
Directive 91/263/EEC, including, where appropriate, conditions con-
cerning customer premises wiring and location of the network termina-
tion point.
Restrictions on access and use. This shall include any restrictions on
access and use imposed in accordance with the requirements of Article
pp),
Performance and quality-of-service parameters. Definitions, measure-
ment methods, targets and achieved performance figures, in accordance
with the requirements of Article 5.
Targets for the introduction of new services, features, facilities and tariffs.
Targets shall be published in accordance with the requirements of
Articles 9 and 15.
Conditions for special network access. This shall include conditions for
special network access set by national regulatory authorities in accor-
dance with Article 10 (5).
Availability of the description of the cost accounting system. The address
from which the description of the cost accounting system may be
requested in accordance with the requirements of Article 13.
10. Main elements of the national numbering plan. In accordance with the
requirements of Article 21.
ie Terms for use of directory information. In accordance with Article 16 (c).
12. Conciliation and dispute resolution procedure. This shall include guide-
lines for users on the appeal mechanisms available for conciliation and
resolving disputes with telecommunications organizations, according to
the procedure described in Article 27. This shall also include a summary
of the procedures for resolving disputes referred to in Article 22 (2).
Procedure in the event of non-payment of bills. In accordance with the
requirements of Article 23.
ANNEX II
Supply-time and quality-of-service indicators in accordance with the
requirements of Article 5
The following list specifies areas where quality-of-service indicators are

required for telecommunications organizations notified in accordance with
Article 26 (2): — supply time for initial network connection, — fault rate per
connection, — fault repair time, — call failure rates, — dial tone delay, — call set
up delay, — transmission quality statistics, — response times for operator
services, — the proportion of coin and card-operated public pay-telephones in
working order, — billing accuracy.
ANNEX III
Provision of advanced facilities in accordance with Article 9
1. List of facilities referred to in Article 9 (1):

(a) DTMEF (dual-tone multifrequency operation) i.e. the fixed public
telephone network supports the use of DTMF telephones for
signalling to the exchange, using tones as defined in ITU-T
Recommendations Q.23, and supports the same tones for end-to-
end signalling through the network, both within a Member State
and between Member States.
(b) Direct dialling-in (or facilities offering equivalent functionality) i.e.
users on a private branch exchange (PBX) or similar private system
can be called directly from the fixed public telephone network
without intervention by the PBX attendant.
(c) Call forwarding 1.e. incoming calls sent to another destination in the
same or another Member State (e.g. on no reply, on busy, or
unconditionally). This facility should be provided in accordance
with relevant legislation on data protection and privacy.
(d) Calling-line identification i.e. the calling party’s number is pre-
sented to the called party prior to the call being established. This
facility should be provided in accordance with relevant legislation
on data protection and privacy.
2. List of services and facilities referred to in Article 9 (2):
(a) Community-wide access to green/freephone services. Such services,
variously known as green numbers, freephone services, 0800
numbers, etc. include dial-up services where the caller pays either
nothing for the call or only part of the total cost of the call.
(b) Community-wide kiosk billing. Kiosk billing means a facility
whereby charges for the use of a service accessed through a
telecommunications organization’s network are combined with the
network call charges (‘premium rate service’).
95/027EC 159
(c) Community-wide call transfer i.e. transfer of an established call to a

third party in the same or another Member State.
(d) Community-wide automatic reverse charging service facility for
calls which are terminated and originated within the Community
i.e. prior to the call being connected, the called party, at the caller’s
request, agrees to accept the cost of the call.
(e) Community-wide calling-line identification i.e. the calling party’s
number is presented to the called party prior to the call being
established. This facility should be provided in accordance with
relevant legislation on data protection and privacy.
(f) Access to operator services in other Member States i.e. users in one
Member State can call the operator/assistance service in another
Member State.
(g) Access to directory enquiry service in other Member States 1.e.
users in one Member State can call the directory enquiry service in
another Member State.
COMMISSION DIRECTIVE OF 16 JANUARY 1996 AMENDING DIRECTIVE 90/388/
EEC WITH REGARD TO MOBILE AND PERSONAL COMMUNICATIONS (96/2/EC)

particular Article 90 (3) thereof,
Whereas:
(1) In its communication on the consultation on the Green Paper on mobile

and personal communications of 23 November 1994, the Commission set out
the major actions required for the future regulatory environment necessary to
exploit the potential of this means of communication. It emphasized the need
for the abolition, as soon as possible, of all remaining exclusive and special
rights in the sector through full application of Community on competition
rules and with the amendment of Commission Directive 90/388/EEC of 28
June 1990 competition in the markets for telecommunications services [1], as
last amended by Directive 95/51/EC [2], where required. Moreover, the
communication considered removing restrictions on the free choice of under-
lying facilities used by mobile network operators for the operation and
development of their networks for those activities which are allowed by the
licences or authorizations. Such a step was seen as essential in order to
overcome current distortions of fair competition and, in particular, to allow
such operators control over their cost base.
(2) The Council Resolution of 29 June 1995 on the further development of

mobile and personal communications in the European Union [3] gave general
support to the actions required, as set out in the Commission’s communication
of 23 November 1994, and considered as one of the major goals the abolition of
exclusive or special rights in this area.
(3) The European Parliament, in its Resolution of 14 December 1995

concerning the draft Commission Directive amending Directive 90/388/EEC
with regard to mobile and personal communications [4], welcomed this
Directive in both its principles and its objectives.
(4) Several Member States have already opened up certain mobile commu-
nications services to competition and introduced licensing schemes for such
services. Nevertheless, the number of licences granted is still restricted in many
Member States on the basis of discretion or, in the case of operators competing
with telecommunications organizations subject to technical restrictions such as
a ban on using infrastructure other than those provided by the telecommunica-
tions organization. Many Member States, for example, have still not granted
licences for DCS 1800 mobile telephony.
160
In addition, some Member States have maintained exclusive rights for the
provision of certain mobile and personal communications services granted to
the national telecommunications organization.
(5) Directive 90/388/EEC provides for the abolition of special or exclusive
rights granted by Member States in respect of the provision of telecommunica-
tions services. However, the Directive does not as yet apply to mobile services.
(6) Where the number of undertakings authorized to provide mobile and
personal communications services is limited by Member States through the
existence of special rights and a fortiori exclusive rights, these constitute
restrictions which would be incompatible with Article 90 in conjunction with
Article 59 of the Treaty whenever such limitation is not justified under specific
Treaty provisions or the essential requirements, since these rights prevent other
undertakings from supplying the services concerned, to and from other
Member States. In the case of mobile and personal communication networks
and services, the applicable essential requirements encompass the effective use
of the frequency spectrum and the avoidance of harmful interference between
radio-based, space-based or terrestrial technical systems. Consequently, pro-
vided that the equipment used to offer the services also satisfies these essential
requirements, the current special rights and a fortiori exclusive rights on the
provision of mobile services are not justified and therefore should be treated in
the same way as the other telecommunications services already covered by
Directive 90/388/EEC. The scope of application of that Directive should
accordingly be extended so as to include mobile and personal communications
services.
(7) When opening the markets for mobile and personal communications to
competition Member States should give preference to the use of Pan-European
standards in the area, such as GSM, DCS 1800, DECT and ERMES, in order
to allow development and transborder provision of mobile and personal
communications services.
(8) Certain Member States have currently granted licences for digital mobile
radio-based services making use of frequencies in the 1700 to 1900 Mhz band,
according to the DCS 1800 standard. The Commission communication of 23
November 1994 established that DCS 1800 is to be seen as part of the GSM
system family. The other Member States have not authorized such services even
where frequencies are available in this band, thereby preventing the cross-
border provision of such services. This is also incompatible with Article 90 in
conjunction with Article 59. To remedy this situation, Member States which
have not yet established a procedure for granting such licences should do so
within a reasonable time-frame. In this context, due account should be taken of
the requirement to promote investments by new entrants in these areas.
Member States should be able to refrain from granting a licence to existing
operators, for example to operators of GSM systems already present on their
territory, if it can be shown that this would eliminate effective competition in
96/2/EC 162
particular by the extension of a dominant position. In particular, where a

Member State grants or has already granted DCS 1800 licences, the granting of
new or supplementary licences for existing GSM or DCS 1800 operators may
take place only under conditions ensuring effective competition.
(9) Digital European cordless telecommunications (DECT) services are also
an essential element for the development towards personal communications.
DECT provides an alternative to the current local loop access to the public
switched telephone network. On 3 June 1991, the Council, by Directive 91/
287/EEC, designated coordinated frequency bands for the introduction of
DECT into the Community (1) to be implemented not later than 31 December
1991. Certain Member States are, however, preventing the use of these
frequencies for such services by refusing to grant licences to companies which
intend to start offering DECT services. Where telecommunications organiza-
tions were granted exclusive rights for the establishment of the public switched
telephone network, the effect of such refusals is to strengthen their dominant
position and also to delay the emergence of personal communications services
and therefore restricts technical progress at the expense of the users contrary to
Article 90 of the Treaty in conjunction with point (b) of Article 86. To remedy
this situation Member States which have not yet established a procedure for
granting such licences should also do so within a reasonable time-frame.
(10) Even where licences were granted to competing mobile operators,
Member States have in certain cases granted to one of them, in a discretionary
manner, special legal advantages which were not granted to others. In such a
situation, these advantages may be counterbalanced by special obligations and
do not, necessarily, preclude the latter from entering and competing in the
market. The compatibility of these advantages with the Treaty must therefore
be assessed on a case-by-case basis taking into account their impact on the
effective freedom of other entities to provide, in an efficient manner, the same
telecommunications service and their possible justifications regarding the
activity concerned.
(11) The exclusive rights that currently exist in the mobile communications
field were generally granted to organizations which already enjoyed a dominant
position in creating the terrestrial networks, or to one of their subsidiaries. In
such a situation, these rights have the effect of extending the dominant position
enjoyed by those organizations and therefore strengthening that position,
which, according to the case-law of the Court of Justice, constitutes an abuse
of a dominant position contrary to Article 86 of the Treaty. The exclusive rights
granted in the mobile and personal communications field are consequently
incompatible with Article 90 read in conjunction with Article 86. These
exclusive rights should consequently be abolished.
(12) Moreover, as regards new mobile services, given the difficulty of

ensuring that telecommunications organizations in those Member States with
less developed networks which would qualify for a transitional time period for
the abolition of the exclusive rights for the establishment and use of infra-
structures required for a given mobile service, would not use this position to
extend it to the market of the relevant mobile service, the Member States
should, in order to prevent abuses of dominant positions contrary to the Treaty,
abstain from granting such telecommunications organization, or any asso-
ciated organization, a licence for this mobile service. Where telecommunica-
tions organization, do not or no longer enjoy exclusive rights for the
establishment and the provision of the public network infrastructure, they
should, however, not a priori be excluded from such licensing procedures.
(13) Exclusive rights not only limit access to the market, but they also have
the effect of restricting or preventing, to the disadvantage of users, the use of
mobile and personal communications on offer, thereby holding back technical
progress in this area. The telecommunications organizations have, in particu-
lar, maintained higher tariffs for mobile radiophony in comparison with fixed
voice telephony which hinders competition at the expense of their main source
of revenues.
Where investment decisions are taken by undertakings in areas where they

enjoy exclusive rights, these undertakings are in a position whereby they can
decide to give priority to fixed network technologies, whereas new entrants may
exploit mobile and personal technology even to compete with fixed services, in
particular as regards the local loop. Thus, the exclusive rights imply that there
is a restriction on the development of mobile and personal communications
and this 1s incompatible with Article 90, read in conjunction with Article 86.
(14) In order to establish the conditions under which mobile and personal
communications systems are to be provided, Member States may introduce
licensing or declaration procedures to ensure compliance with the applicable
essential requirements and public service specifications in the form of trade
regulations, subject to the proportionality principle. Public service specifica-
tions in the form of trade regulations relate to conditions of permanence,
availability, and quality of the service. Such conditions may include the
obligation to give service providers access to airtime on terms at least as
favourable as those available to a service provision business owned by, or with
ownership links to, a mobile network. This framework is without prejudice to
the harmonization of the framework for licensing in the Community.
The number of licences may be limited only in the case of scarcity of the
frequency resources. Conversely, licensing is not justified when a mere
declaration procedure would suffice to attain the relevant objective.
As regards airtime resale and other mere provision of services by independent
service providers or directly by mobile network operators on already author-
ized mobile sytems, none of the applicable essential requirements would justify
the introduction or maintenance of licensing procedures, given that such
services do not consist of the provision of telecommunications services or the
96/2/EC 164
operation of a mobile communications network, but of the retail of authorized

services, the provision of which is likely to be subject to conditions ensuring
compliance with essential requirements or public service specifications in the
form of trade regulations.
They could therefore, besides the application of national fair trade rules
concerning all similar retail activities, only be subject to a requirement of a
declaration of their activities to the National Regulatory Authority of the
Member States where they choose to operate. Mobile network operators could
on the other hand refuse to allow service providers to distribute their services,
in particular where these service providers did not adhere to a code of conduct
for service providers in conformity with the competition rules of the Treaty, as
far as such code exists.
(15) In the context of mobile and personal communications systems radio-
frequencies are a crucial bottleneck resource. The allocation of radiofrequen-
cies for mobile and personal communications system by Member States
according to criteria other than those which are objective, transparent and
non-discriminatory constitutes a restriction incompatible with Article 90 in
conjunction with Article 59 of the Treaty to the extent that operators from
other Member States are disadvantaged in these allocation procedures. The
development of effective competition in the telecommunications sector may be
an objective justification to refuse the allocation of frequencies to operators
already dominant in the geographical market.
Member States should ensure that the procedure for allocation of radio-
frequencies is based on objective criteria and without discriminatory effects.
In this context Member States should, with regard to future designation of
frequencies for specific communications services, publish the frequency plans
as well as the procedures to be followed by operators to obtain frequencies
within the designated frequency bands. Current frequency allocation should be
reviewed by the Member States at regular intervals. In cases where the number
of licences was limited on the basis of spectrum scarcity, Member States should
also review whether advances in technology would allow spectrum to be made
available for additional licences. Possible fees for the use of frequencies should
be proportional and levied according to the number of channels effectively
granted.
(16) Most Member States currently oblige mobile operators to use the leased
line capacity of telecommunications organizations for both internal network
connections and for the routing of long distance portions of calls. As the
charges for leased line rental represent a substantial proportion of the mobile
operator’s cost base, this requriement gives the supplying telecommunications
organization, i.e. in many cases its direct competitor, a considerable influence
on the commercial viability and cost structure of mobile operators. In addition,
restrictions on the self-provision of infrastructure and the use of third party
infrastructure is slowing down the development of mobile services, in parti-
cular because effective pan-European roaming for GSM relies on the wide-
spread availability of addressed signalling systems, a technology which is not
yet universally offered by telecommunications organizations throughout the
Community.
Such restrictions on the provision and use of infrastructures constrain the

provision of mobile and personal communications services by operators from
other Member States and are thus incompatible with Article 90 in conjunction
with Article 59 of the Treaty. To the extent that the competitive provision of
mobile voice services is prevented because the telecommunications organiza-
tion is unable to meet the mobile operator’s demand for infrastructures or will
only do so on the basis of tariffs which are not oriented towards the costs of the
leased line capacity concerned, these restrictions inevitably favour the tele-
communications organization’s offering of fixed telephony services, for which
most Member States still maintain exclusive rights. The restriction on the
provision and use of infrastructure thus infringes Article 90, in conjunction
with Article 86 of the Treaty. Accordingly, Member States must lift these
restrictions and grant, if requested, the relevant mobile operators on a non-
discriminatory basis access to the necessary scarce resources to set up their
own infrastructure including radiofrequencies.
(17) Currently, the direct interconnection between mobile communications

systems as well as between mobile communications systems and fixed tele-
communications networks within a single Member State or between systems
located in different Member States is restricted in mobile licences granted by
many Member States without any technical justification. Furthermore, restric-
tions exist for the interconnection of such networks via networks other than the
public telecommunications networks. In the Member States concerned, mobile
operators are required to interconnect with other mobile operators via the
telecommunications organization’s fixed network. Such requirements result in
additional costs and thus impede, in particular, the development of transborder
provision of mobile communication services in the Community and therefore
infringe Article 90, in conjunction with Article 59.
As in most Member States exclusive rights for the provision of voice telephony
and public fixed network infrastructure are maintained, potential abuses of the
relevant telecommunications organization’s dominant position can be pre-
vented only if Member States ensure that interconnection of public mobile
communications systems is made possible at defined interfaces with the public
telecommunications network of those telecommunications organizations and
that the interconnection conditions are based on objective criteria, justified by
the cost of providing the interconnection service, are transparent, non-
discriminatory, published in advance and allow the necessary tariff flexibility,
including the application of off-peak rates. In particular, transparency is
required in respect of cost-accounting of operators providing both fixed
networks and mobile telecommunications networks. Special and exclusive
96/2/EC 166
rights in respect of the establishment of cross-border infrastructure for voice

telephony are not affected by this Directive.
In order to be able to ensure the full application of this Directive as regards
interconnection, information on interconnection agreements must be available
to the Commission on request.
The drawing up of such national procedures for licensing and interconnection,
is without prejudice to the harmonization of the latter at Community level by
European Parliament and Council Directives, in particular within the frame-
work of Directives on open network provision (ONP).
(18) Article 90 (2) of the Treaty provides for an exception to the Treaty rules,
and in particular to Article 86, in cases where the application of the latter
would obstruct the performance, in law or in fact, of the particular tasks
assigned to the telecommunications organizations. Pursuant to that provision,
Directive 90/388/EEC allows exclusive rights to be maintained for a transi-
tional period in respect of voice telephony.
Voice telephony is defined in Article 1 of Directive 90/388/EEC as the
speech in real time between public switched network termination points,
point in order to communicate with another termination point. The direct
transport and switching of speech via mobile and personal communications
networks is not implemented between two public switched termination points
and is therefore not voice telephony within the meaning of Directive 90/388/
EEG:
On the basis of Article 90 (2) of the Treaty, public service specifications in the
form of trade regulations applicable to all authorized operators of mobile
telecommunications services provided to the public, are, however, justified to
ensure the fulfilment of objectives of general economic interest, such as
ensuring geographical coverage or the implementation of Community-wide
standards.
(19) In its assessment of current restrictions imposed on mobile operators
concerning the establishment and use of their own infrastructure and/or the
use of third party infrastructures, the Commission will further consider the
need for additional transition periods for Member States with less developed
networks as called for in the Council’s Resolution of 22 July 1993 on the review
of the situation in the telecommunications sector and the need for further
development in that market [1] in addition to the Council’s Resolution of 22
December 1994 on the principles and timetable for the liberalization of
telecommunications infrastructures [2]. Although not covered by these resolu-
tions there should be the possibility of requesting an additional transition
period as regards the direct interconnection of mobile networks. The Member
States which may request such an exception are Spain, Ireland, Greece and
Portugal. However, only certain of these Member States do not allow GSM
mobile operators to use own and/or third party infrastructures. A specific
procedure should be provided in order to assess the possible justification for
the maintenance of that regime for the provision of mobile and personal
communications services for a transitional time period as set out in the said
Council resolutions.
(20) This Directive does not prevent measures being adopted in accordance
with Community law and existing international obligations so as to ensure that
nationals of Member States are afforded equivalent treatment in third
countries,

Article 1
Directive 90/388/EEC is amended as follows:
1. Article 1 (1) is amended as follows:
(a) the following indents are inserted after the ninth indent:
- ‘mobile and personal communications services’ means services
other than satellite services whose provision consists, wholly or
partly, in the establishment of radiocommunications to a mobile
user, and makes use wholly or partly of mobile and personal
communications systems,
~ ‘mobile and personal communications systems’ means systems
consisting of the establishment and operation of a mobile network
infrastructure whether connected or not to public network termina-
tion points, to support the transmission and provision of radio-
communications services to mobile users;
(b) the thirteenth indent is replaced by the following:
- ‘essential requirements’ means the non-economic reasons in the
public interest which may cause a Member State to impose condi-
tions on the establishment and/or operation of telecommunications
networks or the provision of telecommunications services. These
reasons are the security of network operations, maintenance of
network integrity, and where justified, interoperability of services,
data protection, the protection of the environment and town and
country planning objectives as well as the efficient 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 protection of personal data, the
confidentiality of information transmitted or stored as well as the
protection of privacy. 2. Article | (2) is replaced by the following:
96/2/EC 168
‘2. This Directive shall not apply to telex.” 3. The following Articles 3a to 3d are
inserted:
Article 3a. In addition to the requirements set out in the second paragraph of
Article 2 Member States shall, in attaching conditions to licences or general
authorizations for mobile and personal communications systems, ensure the
following:
(i) licensing conditions must not contain conditions other than those
justified on the grounds of the essential requirements and, in the case of
systems for use by the general public, public service requirements in the
form of trade regulation within the meaning of Article 3;
(ii) licensing conditions for mobile network operators must ensure transpar-
ent and non-discriminatory behaviour between fixed and mobile network
operators in common ownership;
(iii) licensing conditions should not include unjustified technical restrictions.
Member States may not, in particular, prevent combination of licences or
restrict the offer of different technologies making use of distinct frequen-
cies, where multistandard equipment is available.
As far as frequencies are available, member States shall award licences
according to open, non-discriminatory, and transparent procedures.
Member States may limit the number of licences for mobile and personal
communications systems to be issued only on the basis of essential require-
ments and only where related to the lack of availability of frequency spectrum
and justified under the principle of proportionality.
Licence award procedures may consider public service requirements in the

form of trade regulation within the meaning of Article 3, provided the solution
which least restricts competition is chosen. The relevant conditions related to
trade regulations may be attached to the licences granted.
Member States which are granted an additional implementation period to

abolish the restrictions with regard to infrastructure as provided for in Article
3c, shall not during that period grant any further mobile or personal
communications licence to telecommunications organizations in such Member
States do not or no longer enjoy exclusive or special rights, within the meaning
of points (b) and (c) of the first paragraph of Article 2, for the establishment
and the provision of the public network infrastructure, they shall not a priori
be excluded from such licensing procedures.
Article 3b. The designation of radiofrequencies for specific communication

services must be based on objective criteria. Procedures must be transparent
and published in an appropriate manner.
Member States shall publish every year or make available on request, the
allocation scheme of frequencies reserved for mobile and personal commu-
nications services, according to the scheme set out in the Annex, including the
plans for future extension of such frequencies.
This designation must be reviewed by Member States at regular appropriate
intervals.
Article 3c. Member States shall ensure that all restrictions on operators of
mobile and personal communications systems with regard to the establishment
of their own infrastructure, the use of infrastructures provided by third and the
sharing of infrastructure, other facilities and sites, subject to limiting the use of
such infrastructures to those activities provided for in their licence or
authorization, are lifted.
Article 3d. Without prejudice to the future harmonization of national inter-

connection rules in the context of ONP, Member States shall ensure that direct
interconnection between mobile communications systems, as well as between
mobile communications systems and fixed telecommunications networks, is
allowed. In order to achieve this, restrictions on interconnection shall be lifted.
Member States shall ensure that operators of mobile communications systems

for the public have the right to interconnect their systems with the public
telecommunications network. To this end, Member States shall guarantee
access to the necessary number of points of interconnection to the public
telecommunications network in the licences for mobile services. Member
States shall ensure that the technical interfaces offered at such points of
interconnection are the least restrictive interfaces available as regards the
features of the mobile services.
Member States shall ensure that interconnection conditions with the public
telecommunications network of the telecommunications organizations are set
on the basis of objective criteria, are transparent and non-discriminatory, and
compatible with the principle of proprotionality. They shall ensure that, in case
of appeal, full access to interconnection agreements is given to National
Regulatory Authorities and that such information is made available to the
Commission on request. 4. In the first sentence of Article 4 the word ‘fixed’ is
inserted before the words ‘public telecommunications networks’.
Article 2
1. Without prejudice to Article 2 of Directive 90/388/EEC, and subject to
the provision set out in paragraph 4 of this Article, Member States shall
not refuse to allocate licences for operating mobile systems according to
the DCS 1800 standard at the latest after adoption of a decision of the
European Radiocommunications Committee on the allocation of DCS
1800 frequencies and in any case by | January 1998.
2. Member States shall, subject to the provision set out in paragraph 4, not
refuse to allocate licences for public access/Telepoint applicaitons,
including systems operation on the basis of the DECT standard as from
the entry into force of this Directive.
96/2/EC 170
3. | Member States shall not restrict the combination of mobile technologies

or systems, in particular where multistandard equipment is available.
When extending existing licences to cover such combinations Member
States shall ensure that such extension is justified in accordance with the
provisions of paragraph 4.
4. Member States shall adopt, where required, measures to ensure the
implementation of this Article taking account of the requirement to
ensure effective competition between operators competing in the relevant
markets.
Article3
Member States shall supply to the Commission, not later than nine months
after this Directive has entered into force, such information as will allow the
Commission to confirm that Article 1 as well as Article 2 (2) have been
complied with.
Member States shall supply to the Commission, not later than | January 1998,
such information as will allow the Commission to confirm that Article 2 (1) has
been complied with.
Article 4
Member States with less developed networks may request at the latest three
months from the entry into force of this Directive an additional implementa-
tion period of up to five years, in which to implement all or some of the
conditions set out in Article 3c and in Article 3d (1) of Directive 90/388/EEC,
to the extent justifiable by the need to achieve the necessary structural
adjustments. Such a request must include a detailed description of the planned
adjustments and a precise assessment of the timetable envisaged for their
implementation. The information provided shall be made available to any
interested party on demand.
The Commission will assess such requests and take a reasoned decision within
a time period of three months on the principle, implications and maximum
duration of the additional period to be granted.
Article 5
This Directive shall enter into force on the 20th day following its publication in
the Official Journal of the European Communities.
Article 6

Done at Brussels, 16 January 1996.
For the Commission Karel VAN MIERT Member of the Commission
(1) OJ No C 213, 6. 8. 1993, p. 2.

(2) OJ No C 379, 31. 12. 1994, p. 4.
ANNEX
1. | Frequency bands allocated to mobile systems. (specifying the number of

channels, the service to which it is allocated and the review date of the
allocation)
2. Frequency bands which will be made available for mobile systems during
the next year.
3. Procedures envisaged to assign these frequencies to existing or new
operators.
COMMISSION DIRECTIVE OF 13 MARCH 1996 AMENDING DIRECTIVE 90/ 388/
EEC WITH REGARD TO THE IMPLEMENTATION OF FULL COMPETITION IN
TELECOMMUNICATIONS MARKETS (96/19/EC)

Whereas:
(1) According to Commission Directive 90/388/EEC of 28 June 1990 on

competition in the markets for telecommunications services [1], as last
amended by Directive 96/2/EC [2], telecommunications services, with the
exception of voice telephony to the general public and those services specifi-
cally excluded from the scope of that Directive, must be open to competition.
These services were the telex service, mobile communications and radio and
television broadcasting to the public. Satellite communications were included
in the scope of the Directive through Commission Directive 94/46/EC [3].
Cable television networks were included in the scope of the Directive through
Commission Directive 95/51/EC [4], and mobile and personal communica-
tions were included in the scope of the Directive through Directive 96/2/EC.
Under Directive 90/388/EEC, Member States must take the measures neces-
sary to ensure that any operator is entitled to supply such services.
(2) Subsequent to the public consultation organized by the Commission in

1992 on the situation in the telecommunications sector (the 1992 Review), the
Council, in its resolution of 22 July 1993 [5], unanimously called for the
liberalization of all public voice telephony services by | January 1998, subject
to additional transitional periods of up to five years to allow Member States
with less developed networks, i.e. Spain, Ireland, Greece and Portugal, to
achieve the necessary adjustments, in particular tariff adjustments. Moreover,
very small networks should, according to the Council also be granted an
adjustment period of up to two years where so justified. The Council
subsequently unanimously recognized, in its resolution of 22 December 1994
[6], that the provision of telecommunications infrastructure should also be
liberalized by 1 January 1998, subject to the same transitional periods as
agreed for the liberalization of voice telephony. Furthermore, in its resolution
of 18 September 1995 [7], the Council established basic guidelines for the
future regulatory environment.
(3) Directive 90/388/EEC establishes that the granting of special or exclusive

rights to telecommunications services to telecommunications organizations is
in breach of Article 90 of the Treaty, in conjunction with Article 59 of the
Treaty, since they limit the provision of cross-border services. As far as
172
telecommunications services and networks are concerned such special rights

were defined in that Directive.
According to Directive 90/388/EEC exclusive rights granted for the provision
of telecommunications services are also incompatible with Article 90 (1) of the
Treaty, in conjunction with Article 86 of the Treaty, where they are granted to
telecommunications organizations which also enjoy exclusive or special rights
for the establishment and the provision of telecommunications networks since
their grant amounts to the reinforcement or the extension of a dominant
position or necessarily leads to other abuses of such position.
(4) In 1990, the Commission, however, granted a temporary exception under

Article 90 (2) in respect of exclusive and special rights for the provision of voice
telephony, since the financial resources for the development of the network still
derived mainly from the operation of the telephony service and the opening-up
of that service could, at that time, threaten the financial stability of the
telecommunications organizations and obstruct the performance of the task
of general economic interest assigned to them, consisting in the provision and
exploitation of a universal network, i.e. one having general geographic cover-
age, and that connection to it is being provided to any service provider or user
upon request within a reasonable period of time.
Moreover, at the time of the adoption of Directive 90/388/EEC, all tele-

communications organizations were also in the course of digitalizing their
network to increase the range of services which could be provided to the final
customers. Today, coverage and digitalization are already achieved in a number
of Member States. Taking into account the progress in radio frequency
applications and the on-going heavy investment programmes, optic fibre-
coverage and network penetration are expected to improve significantly in the
other Member States in the coming years.
In 1990, concerns were also expressed against immediate introduction of
competition in voice telephony while price structures of the telecommunica-
tions organizations were substantially out of line with costs, because competing
operators could target highly profitable services such as international tele-
phony and gain market share merely on the basis of existing substantially
distorted tariff structures. In the meantime efforts have been made to balance
differences in pricing and cost structures in preparation for liberalization. The
European Parliament and the Council have in the meantime recognized that
there are less restrictive means than the granting of special or exclusive rights to
ensure this task of general economic interest.
(5) For these reasons, and in accordance with the Council resolutions of 22
July 1993 and of 22 December 1994, the continuation of the exception granted
with respect of voice telephony is no longer justified. The exception granted by
Directive 90/388/EEC should be ended and the Directive, including the
definitions used, amended accordingly. In order to allow telecommunications
96/19/EC 174
organizations to complete their preparation for competition and in particular

to pursue the necessary rebalancing of tariffs, Member States may continue the
current special and exclusive rights regarding the provision of voice telephony
until 1 January 1998. Member States with less developed networks or with very
small networks must be eligible for a temporary exception where this is
warranted by the need to carry out structural adjustments and strictly only to
the extent necessary for those adjustments. Such Member States should be
granted, upon request, an additional transitional period respectively of up to
five and of up to two years, provided it is necessary to complete the necessary
structural adjustments. The Member States which may request such an
exception are Spain, Ireland, Greece and Portugal with regard to less devel-
oped networks and Luxembourg with regard to very small networks. The
possibility of such transitional periods has also been called for in the Council
resolutions of 22 July 1993 and of 22 December .1994.
(6) The abolition of exclusive and special rights as regards the provision of
voice telephony will in particular allow the current telecommunications
organizations from one Member State to directly provide their service in other
Member States as from 1 January 1998. These organizations currently possess
the skills and the experience required to enter into the markets opened to
competition. However, in almost all Member States, they will compete with the
national telecommunications organizations which are granted the exclusive or
special right to provide not only voice telephony but also to establish and
provide the underlying infrastructure, including the acquisition of indefeasible
rights of use in international circuits. The flexibility and the economies of scope
which this allows will prevent this dominant position being challenged in the
normal course of competition once the liberalization of voice telephony takes
place. This will make it possible for the telecommunications organizations to
maintain their dominant position on their home markets unless the new
entrants in the voice telephony market were entitled to the same rights and
obligations. In particular, if new entrants are not granted free choice as regards
the underlying infrastructure to provide their services in competition with the
dominant operator, this restriction would de facto prevent them from entering
the market for voice telephony, including for the provision of cross-border
services. The maintenance of special rights limiting the number of undertakings
authorized to establish and provide infrastructure would therefore limit the
freedom to provide services contrary to Article 59 of the Treaty. The fact that
the restriction on establishing own infrastructure would apparently apply in the
Member State concerned without distinction to all companies providing voice
telephony other than the national telecommunications organizations would not
be sufficient to remove the preferential treatment of the latter from the scope of
Article 59 of the Treaty. Given the fact that it is likely that most new entrants
will originate from other Member States such a measure would in practice
affect foreign companies to a larger extent than national undertakings. On the
other hand, while no justification for these restrictions appears to exist, less
restrictive means such as licensing procedures would in any event be available

to ensure general interests of a non-economic nature.
(7) In addition, the abolition of exclusive and special rights on the provision
of voice telephony would have little or no effect, if new entrants would be
obliged to use the public telecommunications network of the incumbent
telecommunications organizations, with whom they compete in the voice
telephony market. Reserving to one undertaking which markets telecommuni-
cations services the task of supplying the indispensable raw material, i.e. the
transmission capacity, to all its competitors would be tantamount to conferring
upon it the power to determine at will where and when services can be offered
by its competitors, at what cost, and to monitor their clients and the traffic
generated by its competitors, placing that undertaking in a position where it
would be induced to abuse its dominant position. Directive 90/388/EEC did
not explicitly address the establishment and provision of telecommunications
networks, as it granted a temporary exception under Article 90 (2) of the Treaty
in respect of exclusive and special rights for the by far most important service
in economic terms provided over telecommunications networks, i.e. voice
telephony. However, the Directive provided for an overall review by the
Commission of the situation in the whole telecommunications sector in 1992.
It is true that Council Directive 92/44/EEC of 5 June 1992 on the application
of open network provision to leased lines, amended by Commission Decision
94/439/EC [8], harmonizes the basic principles regarding the provision of
leased lines, but it only harmonizes the conditions of access and use of leased
lines. The aim of that Directive is not to remedy the conflict of interest of the
telecommunications organizations as infrastructure and service providers. It
does not impose a structural separation between the telecommunications
organizations as providers of leased lines and as service providers. Complaints
illustrate that even in Member States which have implemented that Directive,
telecommunications organizations still use their control of the access condi-
tions to the network at the expense of their competitors in the services market.
Complaints show that telecommunications organizations still apply excessive
tariffs and that they use information acquired as infrastructure providers
regarding the services planned by their competitors, to target clients in the
services market. Directive 92/44/EEC only provides for the principle of cost-
orientation and does not prevent telecommunications organizations to use the
information acquired as capacity provider as regards subscribers’ usage
patterns, necessary to target specific groups of users, and on price elasticities
of demand in each service market segment and region of the country. The
current regulatory framework does not resolve the conflict of interest men-
tioned above. The most appropriate remedy to this conflict of interest 1s
therefore to allow service providers to use own or third party telecommunica-
tions infrastructure to provide their services to the final customers instead of
the infrastructure of their main competitor. In its resolution of 22 December
96/19/EC 176
1994 the Council also approved the principle that infrastructure provision
should be liberalized.
Member States should therefore abolish the current exclusive rights on the
provision and use of infrastructure which infringe Article 90 (1) of the Treaty,
in combination with Articles 59 and 86 of the Treaty, and allow voice telephony
providers to use own and/or any alternative infrastructure of their choice.
(8) Directive 90/388/EEC states that the rules of the Treaty, including those
on competition, apply to telex services. At the same time it establishes that the
granting of special or exclusive rights for telecommunications services to
telecommunications organizations is in breach of Article 90 (1) of the Treaty,
in conjunction with Article 59 of the Treaty, since they limit the provision of
cross-border services. However, it was considered in the Directive that an
individual approach was appropriate, as a rapid decline of the service was
expected. It the meantime it has become clear that the telex service will
continue to coexist with new services like facsimile in the forseeable future,
given that the telex network is still the only standardized network with
worldwide coverage and providing legal proof in Court. It is therefore no
longer justified to maintain the initial approach.
(9) As regards the access of new competitors to the telecommunications
markets, only mandatory requirements can justify restrictions to the funda-
mental freedoms provided for in the Treaty. These restrictions should be limited
to what is necessary to achieve the objective of a non-economic nature pursued.
Member States may therefore only introduce licensing or declaration proce-
dures where it is indispensable to ensure compliance with the applicable
essential requirements and, with regard to the provision of voice telephony
and the underlying infrastructure, introduce requirements in the form of trade
regulations where it is necessary in order to ensure, in accordance with Article
90 (2) of the Treaty, the performance in a competitive environment of the
particular tasks of public service assigned to the relevant undertakings in the
telecommunications field and/or to ensure a contribution to the financing of
universal service. Other public service requirements can be included by
Member States in certain categories of licences, in line with the principle of
proportionality and in conformity with Articles 56 and 66 of the Treaty.
The provisions of Directive 90/388/EEC are therefore not to prejudice the

applicability of provisions laid down by law, regulation or administrative
action providing for the protection of public security and in particular the
lawful interception of communications.
In the framework of the adoption of authorization requirements under

Directive 90/388/EEC, it appeared that certain Member States were imposing
obligations on new entrants which where not in proportion with the aims of
general interest pursued. To avoid such measures being used to prevent the
dominant position of the telecommunications organizations being challenged
by competition once the liberalization of voice telephony takes place, thus

making it possible for the telecommunications organizations to maintain their
dominant position in the voice telephony and public telecommunications
networks markets and thereby strengthening the dominant position of the
incumbent operator, it is necessary that Member States should notify any
licensing or declaration requirements to the Commission, before they are
introduced, to enable the latter to assess their compatibility with the Treaty
and in particular the proportionality of the obligations imposed.
(10) According to the principle of proportionality, the number of licences
may only be limited where this is unavoidable to ensure compliance with
essential requirements concerning the use of scarce resources. As the Commis-
sion stated in its communication on the consultation on the Green Paper on the
liberalization of telecommunications infrastructure and cable television net-
works, the sole reason in this respect should be the existence of physical
limitations, imposed by the lack of necessary frequency spectrum.
As regards the provision of voice telephony, public fixed telecommunications

networks and other telecommunications networks involving the use of radio
frequencies, the essential requirements would justify the introduction or
maintenance of an individual licensing procedure. In all other cases, a general
authorization or a declaration procedure suffices to ensure compliance with the
essential requirements. Licensing is not justified when a mere declaration
procedure would suffice to attain the relevant objective.
As regards the provision of packet- or circuit-switched data services, Directive
90/388/EEC allowed the Member States under Article 90 (2) of the Treaty to
adopt specific sets of public service specifications in the form of trade
regulations with a view to preserving the relevant public service requirements.
The Commission has in the course of 1994 assessed the effects of the measures
adopted under this provision. The results of this review were made public in its
Communication on the status and the implementation of Directive 90/388/
EEC. On the basis of that review, which also took account of the experience in
most Member States where the relevant public service objectives were achieved
without the implementation of such schemes, there is no justification to
continue this specific regime and the current schemes should be abolished
accordingly. However, Member States may replace these schemes by a
declaration or a general authorization procedure.
(11) Newly authorized voice telephony providers will be able to compete
effectively with the current telecommunications organizations only if they are
granted adequate numbers to allocate to their customers. Moreover, where
numbers are allocated by the current telecommunications organizations, the
latter will be induced to reserve the best numbers for themselves and to give
their competitors insufficient numbers or numbers which are commercially less
attractive, for example, because of their length. By maintaining such power in
the hands of their telecommunications organizations Member States would
96/19/EC 178
therefore induce the former to abuse their power on the market for voice
telephony and infringe Article 90 of the Treaty, in conjunction with Article 86
of the Treaty.
Consequently, the establishment and administration of the national numbering

plan should be entrusted to a body independent from the telecommunications
organization, and a procedure for the allocation of numbers should, where
required, be drafted, which is based on objective criteria, is transparent and
without discriminatory effects. Where a subscriber changes service providers,
telecommunications organizations should communicate, in the way and to the
extent required by Article 86 of the Treaty, the information on his new number
for a sufficient period of time to parties seeking to contact him under his old
number. Subscribers changing service providers should also have the possibi-
lity of keeping their numbers in return for a reasonable contribution to the cost
of transferring the numbers.
(12) As Member States are obliged by this Directive to withdraw special and
exclusive rights for the provision and operation of fixed public telecommunica-
tions networks, the obligation set out in Directive 90/388/EEC to take the
necessary measures to ensure objective, non-discriminatory and published
access conditions should be adapted accordingly.
(13) Subject to reasonable compensation, the right of new providers of voice
telephony to interconnect their service for call completion purposes with the
existing public telecommunications network at the necessary interconnection
points, including access to customer databases necessary for the provision of
directory information, is of crucial importance in the initial period after the
abolition of the special and exclusive rights regarding voice telephony and
telecommunications infrastructure provision. Interconnection should in prin-
ciple be a matter for negotiation between the parties, subject to the application
of the competition rules addressed to undertakings. Given the imbalance in
negotiating power of new entrants compared with the telecommunications
organizations whose monopoly position results from their special and exclusive
rights, it is likely that, as long as a harmonized regulatory framework has not
been established by the European Parliament and the Council, interconnection
would be delayed by disputes as to terms and conditions to be applied. Such
delays would jeopardize the market entry of new entrants and hence prevent the
abolition of special and exclusive rights to become effective. The failure by
Member States to adopt the necessary safeguards to prevent such a situation
would lead to a continuation de facto of the current special and exclusive
rights, which as set out above are considered to be incompatible with Article 90
(1) of the Treaty, in conjunction with Articles 59 and 86 of the Treaty.
In order to allow for effective market entry and to prevent the de facto
continuation of special and exclusive rights contrary to Article 90 (1) of the
Treaty, in conjunction with Articles 59 and 86 of the Treaty, Member States
should ensure that, during the time period necessary for such entry by
competitors, telecommunications organizations publish standard terms and

conditions for interconnection to the voice telephony networks which they offer
to the public, including interconnect price lists and access points, no later than
six months before the actual date of liberalization of voice telephony and
telecommunications transmission capacity. Such standard offers should be
non-discriminatory and sufficiently unbundled to allow the new entrants to
purchase only those elements of the interconnection offer they actually need.
Furthermore, they may not discriminate on the basis of the origin of the calls
and/or the networks.
(14) Moreover in order to allow the monitoring of interconnection obliga-
tions under competition law, the cost accounting system implemented with
regard to the provision of voice telephony and public telecommunications
networks should, during the time period necessary to allow for effective market
entry, clearly identify the cost elements relevant for pricing interconnection
offerings and, in particular for each element of the interconnection offered,
identify the basis for that cost element, in order to ensure in particular that this
pricing includes only elements which are relevant, namely the initial connection
charge, conveyance charges, the share of the costs incurred in providing equal
access and number-portability and of ensuring essential requirements and,
where applicable, supplementary charges aimed to share the net cost of
universal service, and provisionally, imbalances in voice telephony tariffs. Such
cost accounting should also make it possible to identify when a telecommunica-
tions organization charges its major users less than providers of voice
telephony networks.
The absence of a quick, cheap and effective procedure to solve interconnection
disputes, and one which would prevent the telecommunications organizations
causing delays or using their financial resources to increase the cost of available
remedies under applicable national law or Community law, would make it
possible for the telecommunications organizations to maintain their dominant
position. Member States should therefore establish a specific recourse proce-
dure for interconnection disputes.
(15) The obligation to publish standard charges and interconnection condi-
tions is without prejudice to the requirement on undertakings in a dominant
position, under Article 86 of the Treaty, to negotiate special or tailor-made
agreements for a particular combination or use of unbundled public switched
telephony network components and/or the granting of discounts for particular
service providers or large users where these are justified and non-discrimina-
tory. Any interconnection discounts should be justified on an objective basis
and be transparent.
(16) The requirement to publish standard interconnection conditions is also
without prejudice to the obligation of dominant undertakings under Article 86
of the Treaty to allow interconnected operators on whose network a call
originates to remain responsible for setting the tariff for the customer between
96/19/EC 180
the calling and the called party and for routing its clients’ traffic up to the
interconnection point of its choice.
(17) A number of Member States are currently still maintaining exclusive

rights with regard to the establishment and provision of telephone directory
and enquiry services. These exclusive rights are generally granted either to
organizations which are already enjoying a dominant position in providing
voice telephony, or to one of their subsidiaries. In such a situation, these rights
have the effect of extending the dominant position enjoyed by those organiza-
tions and therefore strengthening that position, which, according to the case-
law of the Court of Justice of the European Communities, constitutes an abuse
of a dominant position contrary to Article 86. The exclusive rights granted in
the area of telephone directory services are consequently incompatible with
Article 90 (1) of the Treaty, in conjunction with Article 86. These exclusive
rights consequently have to be abolished.
(18) Directory information constitutes an essential access tool for telephony
services. In order to ensure the availability of directory information to
subscribers to all voice telephony services, Member States may include
obligations for the provision of directory information to the general public
within individual licences and general authorizations.
Such an obligation should not, however, restrict the provision of such
information by new technological means, nor the provision of specialized
and/or regional and local directories contrary to Article 90 (1) of the Treaty,
in conjunction with point (b) of the second paragraph of Article 86 of the
Treaty.
(19) In the case where universal service can be provided only at a loss or
provided under costs falling outside normal commercial standards, different
financing schemes can be envisaged to ensure universal service. The emergence
of effective competition by the dates established for full liberalization would,
however, be seriously delayed if Member States were to implement a financing
scheme allocating too heavy a share of any burden to new entrants or were to
determine the size of the burden beyond what is necessary to finance the
universal service.
Financing schemes disproportionately burdening new entrants and accordingly

preventing the dominant position of the telecommunications organizations
being challenged by competition once the liberalization of voice telephony
takes place, thus making it possible for the telecommunications organizations
to entrench their dominant position, would be in breach of Article 90 of the
Treaty, in conjunction with Article 86 of the Treaty. Whichever financing
scheme they decide to implement, Member States should ensure that only
providers of public telecommunications networks contribute to the provision
and/or financing of universal service obligations harmonized in the framework
of ONP and that the method of allocation amongst them is based on objective
and non-discriminatory criteria and is in accordance with the principle of

proportionality. This principle does not prevent Member States from exempt-
ing new entrants which have not yet achieved any significant market presence.
Moreover, the funding mechanisms adopted should seek only to ensure that
market participants contribute to the financing of universal service, and not to
other activities not directly linked to the provision of the universal service.
(20) As regards the cost structure of voice telephony, a distinction must be
made between the initial connection, the monthly rental, local calls, regional
calls and long distance calls. The tariff structure of voice telephony provided by
the telecommunications organizations in certain Member States is currently
still out of line with cost. Certain categories of calls are provided at a loss and
are cross-subsidized out of the profits from other categories. Artificially low
prices, however, impede competition since potential competitors have no
incentive to enter into the relevant segment of the voice telephony market and
are contrary to Article 86 of the Treaty, as long as they are not justified under
Article 90 (2) of the Treaty as regards specific identified end-users or groups of
end-users. Member States should phase out as rapidly as possible all unjustified
restrictions on tariff rebalancing by the telecommunications organizations and
in particular those preventing the adaptation of rates which are not in line with
costs and increase the burden of universal service provision. Where this is
justified, the proportion of net costs insufficiently covered by the tariff structure
may be reapportioned among all parties concerned in a non-discriminatory
and transparent manner.
(21) As re-balancing could make certain telephone service less affordable in
the short term for certain groups of users, Member States may adopt special
provisions to soften the impact of re-balancing. In this way, the affordability of
the telephone service during the transitional period would be guaranteed while
telecommunications operators would still be able to continue their re-balan-
cing process. This is in line with the statement of the Commission concerning
the Council resolution on universal service (9), which states that there should
be reasonable and affordable prices throughout the territory for initial
connection, subscription, periodic rental, access and the use of the service.
(22) Where Member States entrust the application of the financing scheme of
universal service obligations to their telecommunications organization with the
right to recoup a share of it from competitors, the former will be induced to
charge a higher amount than justified, if Member States would not ensure that
the amount charged to finance universal service is made separate and explicit
with respect to interconnection (connection and conveyance) charges. In
addition, the mechanism should be closely monitored and efficient procedures
for timely appeal to an independent body to settle disputes as to the amount to
be paid must be provided, without prejudice to other available remedies under
national law or Community law.
96/19/EC 182
The Commission should review the situation in Member States five years after
the introduction of full competition, to ascertain whether this financing scheme
does not lead to situations which are incompatible with Community law.
(23) Providers of public telecommunications networks require access to
pathways across public and private property to place facilities needed to reach
the end users. The telecommunications organizations in many Member States
enjoy legal privileges to install their network on public and private land,
without charge or at charges set simply to recover incurred costs. If Member
States do not grant similar possibilities to new licensed operators to enable
them to roll out their network, this would delay them and in certain areas be
tantamount to maintaining exclusive rights in favour of the telecommunica-
tions organization.
Moreover Article 90 of the Treaty, in conjunction with Article 59 of the Treaty,
requires that Member States should not discriminate against new entrants, who
generally will originate from other Member States, in comparison with their
national telecommunications organizations and other national undertakings,
which have been granted rights of way facilitating the roll out of their
telecommunications networks.
Where essential requirements, in particular with regard to the protection of the
environment or with regard to town and country planning objectives, would
oppose the granting of similar rights of way to new entrants which do not
already have their own infrastructure, Member States should at least ensure
that the latter have, where it is technically feasible, access, on reasonable terms,
to the existing ducts or poles, established under rights of way by the
telecommunications organization, where these facilities are necessary to roll
out their network. In the absence of such requirements the telecommunications
organizations would be induced to limit access by their competitors to these
essential facilities and thus abuse their dominant position. A failure to adopt
such requirements would therefore be contrary to Article 90 (1) of the Treaty, in
conjunction with Article 86 of the Treaty.
In addition, pursuant to Article 86, all public telecommunications network

operators having essential resources for which competitors do not have
economic alternatives are to provide open and non-discriminatory access to
those resources.
(24) The abolition of special and exclusive rights in the telecommunications

markets will allow undertakings enjoying special and exclusive rights in sectors
other than telecommunications to enter the telecommunications markets. In
order to allow for monitoring under the applicable rules of the Treaty of
possible anti-competitive cross-subsidies between, on the one hand, areas for
which providers of telecommunications services or telecommunications infra-
structures enjoy special or exclusive rights and, on the other, their business as
telecommunications providers, Member States should take the appropriate
measures to achieve transparency as regards the use of resources from such

protected activities to enter in the liberalized telecommunications market.
Member States should at least require such undertakings once they achieve a
significant turnover in the relevant telecommunications service and/or infra-
structure provision market, to keep separate financial records, distinguishing
between inter alia, costs and revenues associated with the provision of services
under their special and exclusive rights and those provided under competitive
conditions. For the time being, a turnover of more than ECU 50 million could
be considered as a significant turnover.
(25) Most Member States also currently maintain exclusive rights for the
provision of telecommunications infrastructure for the supply of telecommu-
nications services other than voice telephony.
Under Directive 92/44/EEC, Member States must ensure that the telecommu-
nications organizations make available certain types of leased lines to all
providers of telecommunications services. However, the Directive provides
only for such offer of a harmonized set of leased lines up to a certain
bandwidth. Companies needing a higher bandwidth to provide services based
on new high-speed technologies such as SDH (synchronous digital hierarchy)
have complained that the telecommunications organizations concerned are
unable to meet their demand whilst it could be met by the optic fibre networks
of other potential providers of telecommunications infrastructure, in the
absence of the current exclusive rights. Consequently, the maintenance of these
rights delays the emergence of new advanced telecommunications services and
therefore restricts technical progress at the expense of the users contrary to
Article 90 (1) of the Treaty, in conjunction with point (b) of the second
paragraph of Article 86 of the Treaty.
(26) Given that the lifting of such rights will concern mainly services which
are not yet provided and does not concern voice telephony, which is still the
main source of revenue of those organizations, it will not destabilize the
financial situation of the telecommunications organization. There is conse-
quently no justification to maintain exclusive rights on the establishment and
use of network infrastructure for services other than voice telephony. In
particular, Member States should ensure that all restrictions on the provision
of telecommunications services other than voice telephony over networks
established by the provider of the telecommunications service, the use of
infrastructures provided by third parties and the sharing of networks, other
facilities and sites are lifted as from 1 July 1996.
In order to take account of the specific situation in Member States with less-
developed networks and in Member States with very small networks, the
Commission will grant, upon request, additional transitional periods.
(27) Whilst Directive 95/51/EC lifted all restrictions with regard to the
provision of liberalized telecommunications services over cable television
96/19/EC 184
networks, some Member States still maintain restrictions on the use of public
telecommunications networks for the provision of cable television capacity.
The Commission should assess the situation with regard to such restrictions in
the light of the objectives of that Directive once the telecommunications
markets approach full liberalization.
(28) The abolition of all special and exclusive rights which restrict the
provision of telecommunications services and underlying networks by under-
takings established in the Community is without regard to the destination or
the origin of the communications concerned.
However, Directive 90/388/EEC does not prevent measures regarding under-
takings, which are not established in the Community, being adopted in
accordance with Community law and existing international obligations so as
to ensure that nationals of Member States are afforded comparable and
effective treatment in third countries. Community undertakings should benefit
from effective and comparable access to third country markets and enjoy a
similar treatment in a third country as is offered by the Community framework
to undertakings owned, or effectively controlled, by nationals of the third
country concerned. World Trade Organization telecommunications negotia-
tions should result in a balanced and multilateral agreement, ensuring effective
and comparable access for Community operators in third countries.
(29) The process of implementing full competition in telecommunications

markets raises important issues in the social and employment fields. These are
referred to in the Commission’s communication on the consultation on the
Green Paper on the liberalization of telecommunications infrastructure and
cable television networks of 3 May 1995.
Always remaining in line with a horizontal policy approach, efforts should now
be undertaken to support the transition process to a fully liberalized tele-
communications environment; responsibility for such measures rests mainly at
Member State level, although Community structures, such as the European
Social Fund, may also play a part. In line with existing initiatives, the
Community should play a role in facilitating the adaptation and retraining of
those whose traditional activities are likely to disappear during the process of
industrial restructuring.
(30) The establishment of procedures at national level concerning licensing,

interconnection, universal service, numbering and rights of way is without
prejudice to the harmonization of the latter by appropriate European Parlia-
ment and Council legislative instruments, in particular in the framework of
open network provision (ONP). The Commission should take whatever
measures it considers appropriate to ensure the consistency of these instru-
ments and Directive 90/388/EEC,

Article 1
Directive 90/388/EEC is amended as follows:
1. Article I is amended as follows:

(a) Paragraph | is amended as follows:
(1) The fourth indent is replaced by the following:
‘public telecommunications network’ means a telecommuni-
‘
cations network used inter alia for the provision of public

telecommunications services;
‘public telecommunications service’ means a telecommunica-
tions service available to the public’.
(11) The 15th indent is replaced by the following:
‘essential requirements’ means the non-economic reasons in
©
the general interest which may cause a Member State to

impose conditions on the establishment and/or operation of
telecommunications networks or the provision of telecommu-
nications services. These reasons are security of network
operations, maintenance of network integrity, and, in justified
cases, interoperability of services, data protection, the protec-
tion of the environment and town and country planning
objectives as well as the effective use of the frequency spec-
trum and the avoidance of harmful interference between radio
based telecommunications systems and other, space-based or
terrestrial, technical systems.
Data protection may include protection of personal data, the
confidentiality of information transmitted or stored as well as
the protection of privacy,
(111) The following indents are added:
‘
‘telecommunications network’ means the transmission equip-
ment and, where applicable, switching equipment and other
resources which permit the conveyance of signals between
defined termination points by wire, by radio, by optical or by
other electromagnetic means;
‘interconnection’ means the physical and logical linking of the
telecommunications facilities of organizations providing tele-
communications networks and/or telecommunications ser-
vices, in order to allow the users of one organization to
communicate with the users of the same or another organiza-
tion or to access services provided by third organizations.’
(b) Paragraph 2 is deleted.

96/19/EC 186
2. Article 2 is replaced by the following:
‘Article 2
ih Member States shall withdraw all those measures which grant:
(a) exclusive rights for the provision of telecommunications services, includ-

ing the establishment and the provision of telecommunications networks
required for the provision of such services; or
(b) special rights which limit to two or more the number of undertakings
authorized to provide such telecommunications services or to establish or
provide such networks, otherwise than according to objective, propor-
tional and non-discriminatory criteria; or
special rights which designate, otherwise than according to objective,
proportional and non-discriminatory several competing undertakings to
provide such telecommunications services or to establish or provide such
networks.
Member States shall take the measures necessary to ensure that any
undertaking is entitled to provide the telecommunications services
referred to in paragraph | or to establish or provide the networks referred
to in paragraph 1.
Without prejudice to Article 3c and the third paragraph of Article 4,
Member States may maintain special and exclusive rights until 1 January
1998 for voice telephony and for the establishment and provision of
public telecommunications networks.
Member States shall, however, ensure that all remaining restrictions on
the provision of telecommunications services other than voice telephony
over networks established by the provider of the telecommunications
services, over infrastructures provided by third parties and by means of
sharing of networks, other facilities and sites are lifted and the relevant
measures notified to the Commission no later than | July 1996.
As regards the dates set out in the second and third subparagraphs of this
paragraph, in Article 3 and in Article 4a (2), Member States with less
developed networks shall be granted upon request an additional imple-
mentation period of up to five years and Member States with very small
networks shall be granted upon request an additional implementation
period of up to two years, provided it is needed to achieve the necessary
structural adjustments. Such a request must include a detailed descrip-
tion of the planned adjustments and a precise assessment of the timetable
envisaged for their implementation. The information provided shall be
made available to any interested party on demand having regard to the
legitimate interest of undertakings in the protection of their business
secrets.
Member States which make the supply of telecommunications services or
the establishment or provision of telecommunications networks subject
to a licensing, general authorization or declaration procedure aimed at
compliance with the essential requirements shall ensure that the relevant
conditions are objective, non-discriminatory, proportionate and trans-
parent, that reasons are given for any refusal, and that there is a
procedure for appealing against any refusal.
The provision of telecommunications services other than voice telephony,
the establishment and provision of public telecommunications networks
and other telecommunications networks involving the use of radio
frequencies, may be subjected only to a general authorization or a
declaration procedure.
4. Member States shall communicate to the Commission the criteria on
which licences, general authorizations and declaration procedures are
based together with the conditions attached thereto.
Member States shall continue to inform the Commission of any plans to
introduce new licensing, general authorization and declaration proce-
dures or to change existing procedures,’
‘Article 3
As regards voice telephony and the provision of public telecommunications
networks, Member States shall, no later than 1 January 1997, notify to the
Commission, before implementation, any licensing or declaration procedure
which is aimed at compliance with:
- essential requirements, or
- trade regulations relating to conditions of permanence, availability and
quality of the service, or
— financial obligations with regard to universal service, according to the
principles set out in Article 4c.
Conditions relating to availability can include requirements to ensure access to
customer databases necessary for the provision of universal directory informa-
tion.
The whole of these conditions shall form a set of public-service specifications
and shall be objective, non-discriminatory, proportionate and transparent.
Member States may limit the number of licences to be issued only where related
to the lack of availability spectrum and justified under the principle of
proportionality.
Member States shall ensure, no later than | July 1997, that such licensing or
declaration procedures for the provision of voice telephony and of public
telecommunications networks are published. Before they are implemented, the
Commission shall verify the compatibility of these drafts with the Treaty.
As regards packet- or circuit-switched data services, Member States shall
abolish the adopted set of public-service specifications. They may replace these
by the declaration procedures or general authorizations referred to in Article
=
96/19/EC 188
4. In Article 3b, the following paragraph is added:
‘Member States shall ensure, before 1 July 1997, that adequate numbers are
available for all telecommunications services. They shall ensure that numbers
are allocated in an objective, non-discriminatory, proportionate and transpar-
ent manner, in particular on the basis of individual application procedures.’
5. In Article 4, the first paragraph is replaced by the following:
‘As long as Member States maintain special or exclusive rights for the provision
and operation of fixed public telecommunications networks they shall take the
necessary measures to make the conditions governing access to the networks
objective and non-discriminatory and shall publish them.’
6. The following Articles 4a to 4d are inserted:
‘Article 4a
1. Without prejudice to future harmonization of the national interconnec-
tion regimes by the European Parliament and the Council in the frame-
work of ONP, Member States shall ensure that the telecommunications
organizations provide interconnection to their voice telephony service
and their public switched telecommunications network to other under-
takings authorized to provide such services or networks, on non-
discriminatory, proportional and transparent terms, which are based on
objective criteria.
2. Member States shall ensure in particular that the telecommunications
organizations publish, no later than | July 1997, the terms and conditions
for interconnection to the basic functional components of their voice
telephony service and their public switched telecommunications net-
works, including the interconnection points and the interfaces offered
according to market needs.
3. Furthermore, Member States shall not prevent that organizations provid-
ing telecommunications networks and/or services who so request can
negotiate interconnection agreements with telecommunications organi-
zations for access to the public switched telecommunications network
regarding special network access and/or conditions meeting their specific
needs.
If commercial negotiations do not lead to an agreement within a reason-
able time period, Member States shall upon request from either party and
within a reasonable time period, adopt a reasoned decision which
establishes the necessary operational and financial conditions and require-
ments for such interconnection without prejudice to other remedies
available under the applicable national law or under Community law.
4. Member States shall ensure that the cost accounting system implemented
by telecommunications organizations with regard to the provision of
voice telephony and public telecommunications networks identifies the
cost elements relevant for pricing interconnection offerings.
5. | The measures provided for in paragraphs | to 4 shall apply for a period of

five years from the date of the effective abolition of special and exclusive
rights for the provision of voice telephony granted to the telecommunica-
tions organization. The Commission shall, however, review this Article if
the European Parliament and the Council adopt a directive harmonizing
interconnection conditions before the end of this period.
Article 4b
Member States shall ensure that all exclusive rights with regard to the
establishment and provision of directory services, including both the publica-
tion of directories and directory enquiry services, on their territory are lifted.
Article 4c
Without prejudice to the harmonization by the European Parliament and the
Council in the framework of ONP, any national scheme which is necessary to
share the net cost of the provision of universal service obligations entrusted to
the telecommunications organizations, with other organizations whether it
consists of a system of supplementary charges or a universal service fund, shall:
(a) apply only to undertakings providing public telecommunications net-
works;
(b) allocate the respective burden to each undertaking according to objective
and non-discriminatory criteria and in accordance with the principle of
proportionality.
Member States shall communicate any such scheme to the Commission so that
it can verify the scheme’s compatibility with the Treaty.
Member States shall allow their telecommunications organizations to re-
balance tariffs taking account of specific market conditions and of the need to
ensure the affordability of a universal service, and, in particular, Member
States shall allow them to adapt current rates which are not in line with costs
and which increase the burden of universal service provision, in order to
achieve tariffs based on real costs. Where such rebalancing cannot be
completed before 1 January 1998 the Member States concerned shall report to
the Commission on the future phasing out of the remaining tariff imbalances.
This shall include a detailed timetable for implementation.
In any case, within three months after the European Parliament and the
Council adopt a Directive harmonizing interconnection conditions, the Com-
mission will assess whether further initiatives are necessary to ensure the
consistency of both Directives and take the appropriate measures.
In addition, the Commission shall, no later than | January 2003, review the
situation in the Member States and assess in particular whether the financing
schemes in place do not limit access to the relevant markets. In this case, the
Commission will examine whether there are other methods and make any
appropriate proposals.
96/19/EC 190
Article 4d
Member States shall not discriminate between providers of public telecommu-
nications networks with regards to the granting of rights of way for the
provision of such networks.
Where the granting of additional rights of way to undertakings wishing to
provide public telecommunications networks is not possible due to applicable
essential requirements, Member States shall ensure access to existing facilities
established under rights of way which may not be duplicated, at reasonable
terms.
7. In the first paragraph of Article 7, the words ‘numbers, as well as the’ are
inserted before the word ‘surveillance:
&. Article § is replaced by the following:
‘Article §
Member States shall, in the authorization schemes for the provision of voice
telephony and public telecommunications networks, at least ensure that where
such authorization is granted to undertakings to which they also grant special
or exclusive rights in areas other than telecommunications, such undertakings
keep separate financial accounts as concerns activities as providers of voice
telephony and/or networks and other activities, as soon as they achieve a
turnover of more than ECU 50 million in the relevant telecommunications
market.
‘Article 9
By | January 1998, the Commission will carry out an overall assessment of the
situation with regard to remaining restrictions on the use of public telecommu-
nications networks for the provision of cable television capacity”
Article 2
Commission to confirm that points | to 8 of Article 1 are complied with.
This Directive is without prejudice to existing obligations of the Member States
to communicate, no later than 31 December 1990, 8 August 1995 and 15
November 1996 respectively, measures taken to comply with Directives 90/
388/EEC, 94/46/EC and 96/2/EC.
Article 3
Article 4

Done at Brussels, 13 March 1996.

For the Commission
Karel VAN MIERT
(1) OJ No L 192, 24. 7. 1990, p. 10.

(2) OF No 20526515 V996sp7 59:
(3) OJ No L 268, 19. 10. 1994, p. 15.
(4) OJ No L 256, 26. 10. 1995, p. 49.
(5) OV Noi@ 213562821993 5p. L-
(6) OJ No C 379, 31. 12. 1994, p. 4.
(7) OJ No'€ 258;3: 105 1995.1ps I:
(8) OV No E165; 196219925 p: 27.
(9) OJ No C 48, 16. 2. 1994, p. 8.
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF
10 APRIL 1997 ON A COMMON FRAMEWORK FOR GENERAL AUTHORIZATIONS
AND INDIVIDUAL LICENCES IN THE FIELD OF TELECOMMUNICATIONS SERVICES
(97/13/EC)

EUROPEAN UNION,
particular Articles 57 (2), 66 and 100a thereof,
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 develop-
ment 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
(3) Whereas a common framework should be established for general author-

izations 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
192
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 tele-
communications 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 authoriza-
tions 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;
97/13/EC 194
(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 telecom-
munications 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 telecommuni-
cations 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 strengthen-

ing 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 authoriza-

tions, a ‘“one-stop-shopping procedure’ should be established;
(17) Whereas national regulatory authorities should, where possible, endea-

vour under the one-stop-shopping procedure to shorten the time limits for
taking a decision on the grant 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 establish-
ment 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 authoriza-
tion procedures at the request of an undertaking intending to provide a
telecommunications service or to establish and/or operate a telecommunica-
tions network in more than one Member State;
(21) Whereas Community undertakings should have effective and compar-
able 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 profes-
sional 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;
97/13/EC 196
(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 autho-
rities;
(26) Whereas this Directive applies to both existing and future authoriza-
tions; whereas certain licences have been granted for periods which go beyond
1 January 1999; whereas clauses in such authorizations contrary to Commu-
nity 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 author-
izations 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
hk For the purposes of this Directive,
(a) ‘authorizations’ means any permission setting out rights and ob-
ligations specific to the telecommunications sector and allowing
undertakings to provide telecommunications services and, where
applicable, to establish and/or operate telecommunications net-
works 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 under-
taking 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 condi-
tions 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 mainte-
nance 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.
97/13/EC 198
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
ike 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.
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.
Member States shall ensure that telecommunications services and/or
telecommunications networks can be provided either without authoriza-
tion 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.
Member States shall, in the formulation and application of their author-
ization systems, facilitate the provision of telecommunications services
between Member States.
SECTION II
GENERAL AUTHORIZATIONS
Article 4
Conditions attached to general authorizations
Ie 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.
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
3. Member States may amend the conditions attached to a general author-

ization 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 Lil, Member States shall
not prevent an undertaking which complies with the applicable condi-
tions attached to a general authorizationin accordance with Article 4
from providing the intended telecommunications service and/or telecom-
munications networks.
Member States may require that, before providing the telecommunica-
tions 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
rdating to the service concerned which is necessary for the purpose of
ensuring compliance with the applicable conditions attached in accor-
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dance 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.
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 author-
ity 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.
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
97/13/EC 200
publication of this information shall be made in the national official

gazette of the Member State concerned and in the Official Journal of the
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 telecommu-
nications networks as well as other networks involving the use of radio
frequencies may be subject to individual licences.
Article §
Conditions attached to individual licences
il The conditions which, in addition to those set out for general authoriza-
tions, 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.
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.
Without prejudice to Article 20, Member States shall ensure that informa-
tion 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.
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 pub-
lished 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
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
OT/IZ/EC 202
be without prejudice to any applicable international agreements

relating to international frequency and satellite coordination.
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.
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 with-
draw, amend or suspend the individual licence or impose, in a propor-
tionate 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.
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.
Member States refusing to grant or withdrawing, amending or suspend-
ing 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 suspen-
sions to an institution independent of the national regulatory authority.
Article 10
Limitation on the number of individual licences
fhe 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.
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.
Member States shall grant such individual licences on the basis of
selection criteria which must be objective, non-discriminatory, 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.
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
is 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.
Notwithstanding paragraph 1, Member States may, where scarce re-
sources 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.
97/13/EC 204
SECTION IV
PROVISION OF TELECOMMUNICATIONS SERVICES THROUGHOUT
THE COMMUNITY
Article 12
Harmonization
Ji 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.
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 harmoniza-
tion 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.
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
i 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
The one-stop-shopping procedure shall comply with the following condi-
tions:
(a) it shall be open to all undertakings wishing to provide telecommu-

nications 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 notifica-
tions 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 work-
ing days of formal receipt, by the bodies to which they were
submitted;
(d) inthe 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 opera-
tion 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 under-
take 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 representa-
tives of the Member States and chaired by the representative of the Commis-
sion. 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 out-
come 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 tele-
communications policy, foster the exchange of information between the
Member States and between the Member States and the Commission on the
DTTIBLEC 206
situation and the development of regulatory activities regarding the authoriza-

tion 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 telecommu-
nications 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 | 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 propor-
tionate and shall have regard to the legitimate interests of undertakings in
the protection of their business secrets.
3. Paragraph | 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.
97/13/EC 208
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 amend-
ments 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 Commu-
nity 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 | January 1999 with the
provisions of this Directive shall be inoperative.
Where justified, Member States may, upon request, be granted a defer-
ment 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 assess-
ment, on the basis of the experience gained, of the need for further develop-
ment 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
Article 27
Addressees
Done at Brussels, 10 April 1997.

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. 5Sand OJ No C 291, 4. 10. 1996, p. 12.
(2) FORNo €204155 1511996) pal 7:
(3) Opinion of the European Parliament of 22 May 1996 (OJ No C 166, 10. 6. 1996, p. 78),
Council common position of 9December 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) SOF INOIC 213167820993; ps Ie
(5) OJ No C 379, 31. 12. 1994, p. 4.
(6) OJ No C 150, 31. 5. 1993, p. 39.
Gr OT No'@ 109; 195819955.p2310)
(SO) OF NoiGist> 19267-1995, paAyo:
(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).
O7/13/EC 210
ANNEX
Conditions which may be attached to authorizations
Any conditions which are attached to authorizations must be consistent

with the competition rules of the Treaty.
Conditions which may be attached to all authorizations, where justified
and subject to the principle of proportionality:
ZA conditions intended to ensure compliance with relevant essential
requirements;
impip conditions linked to the provision of information reasonably
required for the verification of compliance with applicable condi-
tions and for statistical purposes;
Pe conditions intended to prevent anti-competitive behaviour in tele-
communications 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 number-
ing capacity.
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 propor-
tionality:
arg 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;
Saeki financial contributions to the provision of universal service, in
B38 communication of customer database information necessary for the
provision of universal directory information;
3.4. provision of emergency services;
SD) special arrangements for disabled people;
316: conditions relating to the interconnection of networks and the
interoperability of services, in accordance with the Interconnection
Directive and obligations under Community law.
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 manage-
ment 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-a-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 tele-
communications 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 activ-
ities, and public policy.
(He OF Nowe
21302199596:
(OJ No L 181, 15. 7. 1994, p. 40).
30 JUNE 1997 ON INTERCONNECTION IN TELECOMMUNICATIONS WITH REGARD
TO ENSURING UNIVERSAL SERVICE AND INTEROPERABILITY THROUGH
APPLICATION OF THE PRINCIPLES OF OPEN NETWORK PROVISION (ONP)
(97/33/EC)

EUROPEAN UNION,
Having regard to the Opinion of the Economic and Social Committee [2],
Treaty [3] in the light of the joint text approved by the Conciliation Committee
on 19 March 1997,
(1) Whereas from 1 January 1998, with transition periods for certain
Member States, the provision of telecommunications services and infrastruc-
ture in the Community will be liberalized; whereas the Council Resolution of 7
February 1994 on universal service principles in the telecommunications sector
[4] recognizes that in order to promote Community-wide telecommunications
services there is a need to ensure interconnection of public networks and, in the
future competitive environment, interconnection between different national
and Community operators; whereas 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 [5] lays down
harmonized principles for open and efficient access to, and use of, public
telecommunications networks and, where applicable, publicly available ser-
vices; whereas the Council Resolution of 22 July 1993 on the review of the
ment in that market [6] recognizes that open network provision measures
provide an appropriate framework for harmonizing interconnection condi-
tions; whereas this harmonization is essential for the establishment and proper
functioning of the internal market for telecommunications services; whereas
the Council Resolution of 18 September 1995 on the implementation of the
future regulatory framework for telecommunications [7] recognizes as key
factors of this future regulatory framework the maintenance and development
of a universal service as well as a specific regulation on interconnection, and
sets out some guidelines on these subjects;
(2) Whereas a general framework for interconnection to public telecommu-
nications networks and publicly available telecommunications services, irre-
spective of the supporting technologies employed, is needed in order to provide
212
end-to-end interoperability of services for Community users; whereas fair,

proportionate and non-discriminatory conditions for interconnection and
interoperability are key factors in fostering the development of open and
competitive markets;
(3) Whereas the abolition of special and exclusive rights in telecommunica-
tions means that certain existing definitions need to be revised; whereas for the
purposes of this Directive, telecommunications services do not include radio
and television broadcasting services; whereas the technical conditions, tariffs,
usage and supply conditions that apply to interconnection may be different
from the conditions that apply at end-user/network interfaces;
(4) Whereas the regulatory framework for interconnection covers those

situations where the interconnected networks are used for the commercial
provision of publicly available telecommunications services; whereas the
regulatory framework for interconnection does not cover cases where a
telecommunications network is used for the provision of telecommunications
services available only to a specific end-user or to a closed user group, but
covers only cases where a telecommunications network is used for the
provision of publicly available services; whereas telecommunications networks
which are interconnected may be owned by the parties involved or may be
based on leased lines and/or transmission capacity not owned by the parties
involved;
(5) Whereas, following the removal of special and exclusive rights for
telecommunications services and infrastructure in the Community, the provi-
sion of telecommunications networks or services may require some form of
authorization by Member States; whereas organizations authorized to provide
public telecommunications networks or publicly available telecommunications
services in all or part of the Community should be free to negotiate inter-
connection agreements on a commercial basis in accordance with Community
law, subject to supervision and, if necessary, intervention by national regula-
tory authorities; whereas it is necessary to ensure adequate interconnection
within the Community of certain networks and interoperability of services
essential for the social and economic well-being of Community users, notably
fixed and mobile public telephone networks and services, and leased lines;
whereas, for the purpose of this Directive ‘public’ does not refer to ownership,
nor does it refer to a limited set of offerings designated as ‘public networks’ or
‘public services’, but means any network or service that is made publicly
available for use by third parties;
(6) Whereas it is necessary to define those organizations which have rights
and obligations for interconnection; whereas in order to stimulate development
of new types of telecommunications services, it is important to encourage new
forms of interconnection and special network access at points other than the
network termination points offered to the majority of end-users; whereas the
market power of an organization depends on a number of factors including its
97/33/EC 214
share of the relevant product or service market in the relevant geographical

market, its turnover relative to the size of the market, its ability to influence
market conditions, its control of the means of access to end-users, its
international links, its access to financial resources and its experience in
providing products and services in the market; whereas, the determination of
which organizations have significant market power should be undertaken by
national regulatory authorities taking into account the situation in the relevant
market;
(7) Whereas the concept of universal service must evolve to keep pace with
advances in technology, market development and changes in user demand;
whereas the new conditions for the provision of universal service should be
assessed in the future review of this Directive;
(8) Whereas obligations for the provision of universal service contribute to
the Community objective of economic and social cohesion and territorial
equity; whereas there may be more than one organization in a Member State
with universal service obligations; whereas Member States should encourage
the early introduction of new technologies like the integrated services digital
network (ISDN) on as broad a basis as possible; whereas at its current stage of
development in the Community, ISDN is not accessible for all users and is not
subject to the universal service provisions of this Directive; whereas it may be
appropriate in due course to consider whether ISDN should be part of the
universal service; whereas the calculation of the net cost of universal service
should take due account of costs and revenues, as well as economic external-
ities and the intangible benefits resulting from providing universal service but
should not hinder the on-going process of tariff rebalancing; whereas costs of
universal service obligations should be calculated on the basis of transparent
procedures; whereas financial contributions related to the sharing of universal
service obligations should be unbundled from charges for interconnection;
whereas, when a universal service obligation represents an unfair burden on an
organization, it is appropriate to allow Member States to establish mechanisms
for sharing the net cost of universal provision of a fixed public telephone
network or a fixed public telephone service with other organizations operating
public telecommunications networks and/or publicly available voice telephony
services; whereas this should respect the principles of Community law, in
particular those of non-discrimination and proportionality and should be
without prejudice to Article 100a (2) of the Treaty;
(9) Whereas it is important to lay down principles to guarantee transparency,

access to information, non-discrimination and equality of access, in particular
for organizations with significant market power;
(10) Whereas pricing for interconnection is a key factor in determining the

structure and the intensity of competition in the transformation process
towards a liberalized market; whereas organizations with significant market
power must be able to demonstrate that their interconnection charges are set
on the basis of objective criteria and follow the principles of transparency and
cost orientation, and are sufficiently unbundled in terms of network and service
elements offered; whereas publication of a list of interconnection services,
charges, terms and conditions enhances the necessary transparency and non-
discrimination; whereas flexibility in the methods of charging for interconnec-
tion traffic should be possible, including capacity-based charging; whereas the
level of charges should promote productivity and encourage efficient and
sustainable market entry, and should not be below a limit calculated by the
use of long-run incremental cost and cost allocation and attribution methods
based on actual cost causation, nor above a limit set by the stand-alone cost of
providing the interconnection in question; whereas charges for interconnection
based on a price level closely linked to the long-run incremental cost for
providing access to interconnection are appropriate for encouraging the rapid
development of an open and competitive market;
(11) Whereas, where an organization with special or exclusive rights in a non-
telecommunications field also provides telecommunications services, account-
ing separation or structural separation are appropriate means to discourage
unfair cross-subsidies at least above a certain turnover in telecommunications
activities; whereas, when an organization enjoys significant market power,
appropriate accounting separation between interconnection activities and
other telecom activities, so as to identify all elements of cost and revenue
related to those activities, ensures transparency of internal cost transfers;
(12) Whereas national regulatory authorities have an important role in
encouraging the development of a competitive market in the interests of
Community users, and of securing adequate interconnection of networks and
interoperability of services; whereas adequate interconnection takes account of
the requests of the operator wishing to interconnect, in particular concerning
the most appropriate interconnection points, with each operator having
responsibility for carrying calls and setting charges to each other up to the
interconnection point; whereas negotiation of interconnection agreements can
be facilitated by national regulatory authorities setting down certain condi-
tions in advance, in accordance with Community law, taking into account the
recommendations defined by the Commission so as to facilitate the develop-
ment of a genuine European home market, and identifying other areas to be
covered in interconnection agreements; whereas in the event of a dispute over
interconnection between parties in the same Member State, an aggrieved party
must be able to call on the national regulatory authority to resolve the dispute;
whereas national regulatory authorities must be able to require organizations
to interconnect their facilities, where it can be demonstrated that this is 1n the
users’ interests;
(13) Whereas, in accordance with Directive 90/387/EEC, the essential
requirements justifying restrictions on access to and use of public telecommu-
nications networks or services are limited to security of network operations,
DIBIIEC 216
maintenance of network integrity, interoperability of services in justified cases,

and protection of data as appropriate; whereas the reasons for these restric-
tions must be made public; whereas the provisions of this Directive do not
prevent a Member State from taking measures justified on grounds set out in
Articles 36 and 56 of the Treaty, and in particular on grounds of public security,
public policy and public morality;
(14) Whereas facility sharing can be of benefit for town planning, environ-
mental, economic or other reasons, and should be encouraged by national
regulatory authorities on the basis of voluntary agreements; whereas compul-
sory facility sharing may be appropriate in some circumstances, but should be
imposed on organizations only after full public consultation;
(15) Whereas numbering is a key element for equal access; whereas national
regulatory authorities should have the responsibility for administering and
controlling national numbering plans, and those naming and addressing
aspects of telecommunications services where coordination at a national level
is required, so as to ensure effective competition; whereas in exercising this
responsibility, national regulatory authorities must have regard to the principle
of proportionality, particularly as to the effect of any measures on network
operators, resellers and consumers; whereas number portability is an impor-
tant facility for users, and should be implemented as soon as practicable;
whereas numbering schemes should be developed in full consultation with all
the parties involved and in harmony with a long-term Europe-wide numbering
framework and international numbering schemes as being considered in the
European Conference of Postal and Telecommunications Administrations
(CEPT); whereas numbering requirements in Europe, the need for the provi-
sion of pan-European and new services and the globalization and synergy of
the telecommunications market require coordination of national positions in
accordance with the Treaty in international organizations and fora where
numbering decisions are taken;
(16) Whereas, in accordance with Directive 90/387/EEC, the harmonization

of technical interfaces and access conditions must be based on common
technical specifications which take account of international standardization;
whereas the development of new European standards for interconnection may
be needed; whereas, in accordance with Council Directive 83/189/EEC of 28
March 1983 laying down a procedure for the provision of information in the
field of technical standards and regulations [8], new national standards must
not be developed in areas where harmonized European standards are under
development;
(17) Whereas, in accordance with Directive 90/387/EEC, open network

provision conditions must be transparent and published in an appropriate
manner; whereas that Directive set up a Committee (the ONP Committee) to
assist the Commission, and provides a procedure for consultation with
telecommunications organizations, users, consumers, manufacturers and ser-

vice providers;
(18) Whereas, in addition to the rights of recourse granted under national or

Community law, there is a need for a simple procedure to resolve cross-border
disputes which lie outside the competence of a single national regulatory
authority; whereas this procedure, to be initiated at the request of either party
in dispute, should be responsive, inexpensive and transparent;
(19) Whereas, to enable the Commission to monitor effectively the applica-
tion of this Directive, it is necessary that Member States notify to the
Commission the national regulatory authorities which will be responsible for
the functions created by this Directive and the organizations covered by its
provisions;
(20) Whereas, given the dynamic development in this sector, a responsive

procedure for adjustment of some Annexes to this Directive should be
established which takes full account of the views of Member States and should
involve the ONP Committee;
(21) Whereas a modus vivendi [9] between the European Parliament, the
Council and the Commission concerning the implementing measures for acts
adopted in accordance with the procedure laid down in Article 189b of the
Treaty was concluded on 20 December 1994;
(22) Whereas the implementation of certain obligations must be linked to the

date of liberalization of telecommunications services and infrastructure and, in
particular in regard to the relevant Member States, take full account of the
relevant transition periods, including the retention of special or exclusive rights
in relation to direct interconnection between the mobile networks of those
Member States and the fixed or mobile networks of other Member States;
whereas deferment of the obligation to provide number portability may be
granted where the Commission agrees that the obligation would impose an
excessive burden on certain organizations;
(23) Whereas this Directive does not, in the case of undertakings which are
not established in the Community, prevent the adoption of measures in
accordance with both Community law and existing international obligations
designed to ensure that nationals of the Member States enjoy similar treatment
in third countries; whereas Community undertakings should benefit in third
countries from treatment and effective access that is comparable to the
treatment and access to the market which is conferred on nationals of the
countries concerned within the Community context; whereas in negotiations
on telecommunications the Community will have to seek a balanced multi-
lateral agreement which provides Community operators with effective and
comparable access in third countries;
DT/B37EC 1218
(24) Whereas the functioning of this Directive should be reviewed by 31

December 1999, in particular to examine the scope of universal service and the
timetable for number portability; whereas the situation with regard to inter-
connection with third countries should also be periodically reviewed, to allow
appropriate action to be taken;
(25) Whereas the essential goal of interconnection of networks and interoper-
ability of services throughout the Community cannot be sufficiently achieved at
Member State level, and can therefore be better achieved at Community level
by this Directive; whereas it is desirable, when this Directive 1s reviewed, to
assess the case for the establishment of a European Regulatory Authority,
taking into account inter alia preparatory work undertaken by the Commis-
sion; whereas when effective competition is achieved in the market the
competition rules of the Treaty will in principle be sufficient to monitor fair
competition ex-post so that the need for this Directive will be reconsidered,
with the exception of the provisions on universal service and the settlement of
disputes;
(26) Whereas this Directive is without prejudice to the application of the

competition rules of the Treaty,

Article |
Scope and aim
This Directive establishes a regulatory framework for securing in the Commu-
nity the interconnection of telecommunications networks and in particular the
interoperability of services, and with regard to ensuring provision of universal
service in an environment of open and competitive markets.
It concerns the harmonization of conditions for open and efficient interconnec-

tion of and access to public telecommunications networks and publicly
available telecommunications services.
Article 2
Definitions
1. For the purposes of this Directive:
(a) ‘interconnection’ means the physical and logical linking of telecommuni-
cations networks used by the same or a different organization in order to
allow the users of one organization to communicate with users of the
same or another organization, or to access services provided by another
organization. Services may be provided by the parties involved or other
parties who have access to the network;
(b) ‘public telecommunications network’ means a telecommunications net-
work used, in whole or in part, for the provision of publicly available
(c) ‘telecommunications network’ means transmission systems and, where
PA Telecommunications
applicable, switching equipment and other resources which permit the

conveyance of signals between defined termination points by wire, by
radio, by optical or by other electromagnetic means;
(d) ‘telecommunications services’ means services whose provision consists
wholly or partly in the transmission and routing of signals on telecom-
munications networks, with the exception of radio and television broad-
casting;
(e) ‘users’ means individuals, including consumers or organizations, using or
requesting publicly available telecommunications services;
(f) ‘special rights’ means 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, limits
to two or more the number of such undertakings authorized to provide a
service or undertake an activity, otherwise than according to objective,
proportionate and non-discriminatory criteria, or designates, otherwise
than according to such criteria, several competing undertakings as being
authorized to provide a service or undertake an activity, or confers, on
any undertaking or undertakings, otherwise than according to such
criteria, legal or regulatory advantages which substantially affect the
ability of any other undertaking to provide the same service or to
undertake the same activity in the same geographical area under
substantially the same conditions;
(g) ‘universal service’ means a defined minimum set of services of specified
quality which is available to all users independent of their geographical
location and, in the light of specific national conditions, at an affordable
price.
2: Further definitions given in Directive 90/387/EEC shall apply, where
relevant.
Article 3
Interconnection at national and community level
I. Member States shall take all necessary measures to remove any restric-
tions which prevent organizations authorized by Member States to
provide public telecommunications networks and publicly available
telecommunications services from negotiating interconnection agree-
ments between themselves in accordance with Community law. The
organizations concerned may be in the same Member State or in different
Member States. Technical and commercial arrangements for interconnec-
tion shall be a matter for agreement between the parties involved, subject
to the provisions of this Directive and the competition rules of the Treaty.
N Member States shall ensure the adequate and efficient interconnection of
the public telecommunications networks set out in Annex I, to the extent
necessary to ensure interoperability of these services for all users within
the Community.
97/33/EC ‘220
3. | Member States shall ensure that organizations which interconnect their

facilities to public telecommunications networks and/or publicly avail-
able telecommunications services respect at all times the confidentiality
of information transmitted or stored.
Article 4
Rights and obligations for interconnection
iF Organizations authorized to provide public telecommunications net-
works and/or publicly available telecommunications services as set out
in Annex II shall have a right and, when requested by organizations in
that category, an obligation to negotiate interconnection with each other
for the purpose of providing the services in question, in order to ensure
provision of these networks and services throughout the Community. On
a case-by-case basis, the national regulatory authority may agree to limit
this obligation on a temporary basis and on the grounds that there are
technically and commercially viable alternatives to the interconnection
requested, and that the requested interconnection is inappropriate in
relation to the resources available to meet the request. Any such
limitation imposed by a national regulatory authority shall be fully
reasoned and made public in accordance with Article 14 (2).
Organizations authorized to provide public telecommunications net-
works and publicly available telecommunications services as set out in
Annex I which have significant market power shall meet all reasonable
requests for access to the network including access at points other than
the network termination points offered to the majority of end-users.
An organization shall be presumed to have significant market power
when it has a share of more than 25 % of a particular telecommunications
market in the geographical area in a Member State within which it is
authorized to operate.
National regulatory authorities may nevertheless determine that an
organization with a market share of less than 25 % in the relevant market
has significant market power. They may also determine that an organiza-
tion with a market share of more than 25 % in the relevant market does
not have significant market power. In either case, the determination shall
take into account the organization’s ability to influence market condi-
tions, its turnover relative to the size of the market, its control of the
means of access to end-users, its access to financial resources and its
experience in providing products and services in the market.
Article 5
Interconnection and universal service contributions
¥ Where a Member State determines, in accordance with the provisions of
this Article, that universal service obligations represent an unfair burden
on an organization, it shall establish a mechanism for sharing the net cost
of the universal service obligations with other organizations operating
public telecommunications networks and/or publicly available voice
| Telecommunications
telephony services. Member States shall take due account of the princi-
ples of transparency, non-discrimination and proportionality in setting
the contributions to be made. Only public telecommunications networks
and publicly available telecommunications services as set out in Part 1 of
Annex I may be financed in this way.
Contributions to the cost of universal service obligations if any may be
based on a mechanism specifically established for the purpose and
administered by a body independent of the beneficiaries, and/or may
take the form of a supplementary charge added to the interconnection
charge.
In order to determine the burden if any which the provision of universal
service represents, organizations with universal service obligations shall,
at the request of their national regulatory authority, calculate the net cost
of such obligations in accordance with Annex III. The calculation of the
net cost of universal service obligations shall be audited by the national
regulatory authority or another competent body, independent of the
telecommunications organization, and approved by the national regula-
tory authority. The results of the cost calculation and the conclusions of
the audit shall be open to the public in accordance with Article 14 (2).
Where justified on the basis of the net cost calculation referred to in
paragraph 3, and taking into account the market benefit if any which
accrues to an organization that offers universal service, national regula-
tory authorities shall determine whether a mechanism for sharing the net
cost of universal service obligations is justified.
Where a mechanism for sharing the net cost of universal service
obligations as referred to in paragraph 4 is established, national regula-
tory authorities shall ensure that the principles for cost sharing, and
details of the mechanism used, are open to public inspection in accor-
dance with Article 14 (2).
National regulatory authorities shall ensure that an annual report is
published giving the calculated cost of universal service obligations, and
identifying the contributions made by all the parties involved.
Until such time as the procedure described in paragraphs 3, 4 and 5 is
implemented, any charges payable by an interconnected party which
include or serve as a contribution to the cost of universal service
obligations shall be notified, prior to their introduction, to the national
regulatory authority. Without prejudice to Article 17 of this Directive,
where the national regulatory authority finds, on its own initiative, or
after a substantiated request by an interested party, that such charges are
excessive, the organization concerned shall be required to reduce the
relevant charges. Such reductions shall be applied retrospectively, from
the date of introduction of the charges, but not before 1 January 1998.
97/33/EC 222
Article 6
Non-discrimination and transparency
For interconnection to public telecommunications networks and publicly
available telecommunications services as set out in Annex I provided by
organizations which have been notified by national regulatory authorities as
having significant market power, Member States shall ensure that:
(a) the organizations concerned adhere to the principle of non-discrimina-

tion with regard to interconnection offered to others. They shall apply
similar conditions in similar circumstances to interconnected organiza-
tions providing similar services, and shall provide interconnection facil-
ities and information to others under the same conditions and of the same
quality as they provide for their own services, or those of their
subsidiaries or partners;
(b) all necessary information and specifications are made available on
request to organizations considering interconnection, in order to facil-
itate conclusion of an agreement; the information provided should
include changes planned for implementation within the next six months,
unless agreed otherwise by the national regulatory authority;
(c) interconnection agreements are communicated to the relevant national
regulatory authorities, and made available on request to interested
parties, in accordance with Article 14 (2), with the exception of those
parts which deal with the commercial strategy of the parties. The national
regulatory authority shall determine which parts deal with the commer-
cial strategy of the parties. In every case, details of interconnection
charges, terms and conditions and any contributions to universal service
obligations shall be made available on request to interested parties;
(d) information received from an organization seeking interconnection is
used only for the purpose for which it was supplied. It shall not be passed
on to other departments, subsidiaries or partners for whom such
information could provide a competitive advantage.
Article 7
Principles for interconnection charges and cost accounting systems
ig Member States shall ensure that the provisions of paragraphs 2 to 6 apply
to organizations operating the public telecommunications networks and/
or publicly available telecommunications services as set out in Parts 1 and
2 of Annex I, which have been notified by national regulatory authorities
as having significant market power.
Charges for interconnection shall follow the principles of transparency
and cost orientation. The burden of proof that charges are derived from
actual costs including a reasonable rate of return on investment shall lie
with the organization providing interconnection to its facilities. National
regulatory authorities may request an organization to provide full
justification for its interconnection charges, and where appropriate shall
require charges to be adjusted. This paragraph shall also apply to

organizations set out in Part 3 of Annex I which have been notified by
national regulatory authorities as having significant market power on the
national market for interconnection.
3. National regulatory authorities shall ensure the publication, in accor-
dance with Article 14 (1), of a reference interconnection offer. The
reference interconnection offer shall include a description of the inter-
connection offerings broken down into components according to market
needs, and the associated terms and conditions including tariffs.
Different tariffs, terms and conditions for interconnection may be set for
different categories of organizations which are authorized to provide
networks and services, where such differences can be objectively justified
on the basis of the type of interconnection provided and/or the relevant
national licensing conditions. National regulatory authorities shall en-
sure that such differences do not result in distortion of competition, and
in particular that the organization applies the appropriate interconnec-
tion tariffs, terms and conditions when providing interconnection for its
own services or those of its subsidiaries or partners, in accordance with
Article 6 (a).
The national regulatory authority shall have the ability to impose changes
in the reference interconnection offer, where justified.
Annex IV provides a list of examples of elements for further elaboration
of interconnection charges, tariff structures and tariff elements. Where an
organization makes changes to the published reference interconnection
offer, adjustments required by the national regulatory authority may be
retrospective in effect, from the date of introduction of the change.
4. Charges for interconnection shall, in accordance with Community law,
be sufficiently unbundled, so that the applicant is not required to pay for
anything not strictly related to the service requested.
5. |The Commission shall, acting in accordance with the procedure laid
down in Article 15, draw up recommendations on cost accounting
systems and accounting separation in relation to interconnection. Na-
tional regulatory authorities shall ensure that the cost accounting systems
used by the organizations concerned are suitable for implementation of
the requirements of this Article, and are documented to a sufficient level
of detail, as indicated in Annex V.
accounting system, showing the main categories under which costs are
grouped and the rules used for the allocation of costs to interconnection,
is made available on request. Compliance with the cost accounting
system shall be verified by the national regulatory authority or another
competent body, independent of the telecommunications organization
and approved by the national regulatory authority. A statement concern-
ing compliance shall be published annually.
6. Where they exist, charges related to the sharing of the cost of universal
97/33/EC 224
service obligations, as described in Article 5, shall be unbundled and

identified separately.
Article §
Accounting separation and financial reports
I Member States shall require organizations providing public telecommu-
nications networks and/or publicly available telecommunications ser-
vices which have special or exclusive rights for the provision of services
in other sectors in the same or another Member State to keep separate
accounts for the telecommunications activities, to the extent that would
be required if the telecommunications activities in question were carried
out by legally independent companies, so as to identify all elements of
cost and revenue, with the basis of their calculation and the detailed
attribution methods used, related to their telecommunications activities
including an itemized breakdown of fixed asset and structural costs, or to
have structural separation for the telecommunications activities.
Member States may choose not to apply the requirements referred to in
the first subparagraph to these organizations where their annual turnover
in telecommunications activities in the Community is less than the limit
set in Part 1 of Annex VI.
Member States shall require organizations operating public telecommu-
nications networks and/or publicly available telecommunications ser-
vices as set out in Parts 1 and 2 of Annex I and notified by national
regulatory authorities as organizations having significant market power
which provide public telecommunications networks and/or telecommu-
nications services available for users and which offer interconnection
services to other organizations, to keep separate accounts for, on the one
hand, their activities related to interconnection — covering both inter-
connection services provided internally and interconnection services
provided to others — and, on the other hand, other activities, so as to
identify all elements of cost and revenue, with the basis of their
calculation and the detailed attribution methods used, related to their
interconnection activity, including an itemized breakdown of fixed asset
and structural costs.
Member States may choose not to apply the requirements referred to in
the first subparagraph to organizations where their annual turnover in
telecommunications activities in the Member States is less than the limit
set in Part 2 of Annex VI.
Organizations providing public telecommunications networks and/or
publicly available telecommunications services shall provide financial
information to their national regulatory authority promptly on request
and to the level of detail required. National regulatory authorities may
publish such information as would contribute to an open and competitive
market, while taking account of considerations of commercial confidenti-
ality.
4, The financial reports of organizations providing public telecommunica-

tions networks or publicly available telecommunications services shall be
drawn up and submitted to independent audit and published. The audit
shall be carried out in accordance with the relevant rules of national
legislation.
The first subparagraph shall also apply to the separate accounts required
in paragraphs | and 2.
Article 9
General responsibilities of the national regulatory authorities
1; National regulatory authorities shall encourage and secure adequate
interconnection in the interests of all users, exercising their responsibility
in a way that provides maximum economic efficiency and gives the
maximum benefit to end-users. In particular, national regulatory autho-
rities shall take into account:
- the need to ensure satisfactory end-to-end communications for
users,
~ the need to stimulate a competitive market,
~ the need to ensure the fair and proper development of a harmonized
European telecommunication market,
~ the need to cooperate with their counterparts in other Member
States,
~ the need to promote the establishment and development of trans-
European networks and services, and the interconnection of na-
tional networks and interoperability of services, as well as access to
such networks and services,
- the principles of non-discrimination (including equal access) and
proportionality,
- the need to maintain and develop universal service.
General conditions set down in advance by the national regulatory
authority shall be published in accordance with Article 14 (1).
In particular, in relation to interconnection between organizations set
out in Annex II, national regulatory authorities:
~ may set ex ante conditions in the areas listed in Part 1 of Annex VII;
- shall encourage coverage in interconnection agreements of the
issues listed in Part 2 of Annex VII.
In pursuit of the aims stated in paragraph 1, national regulatory
authorities may intervene on their own initiative at any time, and shall
do so if requested by either party, in order to specify issues which must be
covered in an interconnection agreement, or to lay down specific
conditions to be observed by one or more parties to such an agreement.
National regulatory authorities may, in exceptional cases, require
changes to be made to interconnection agreements already concluded,
where justified to ensure effective competition and/or interoperability of
services for users.
97/33/EC 226
Conditions set by the national regulatory authority may include inter alia
conditions designed to ensure effective competition, technical conditions,
tariffs, supply and usage conditions, conditions as to compliance with
relevant standards, compliance with essential requirements, protection of
the environment, and/or the maintenance of end-to-end quality of
service.
The national regulatory authority may, on its own initiative at any time or
if requested by either party, also set time limits within which negotiations
on interconnection are to be completed. If agreement is not reached
within the time allowed, the national regulatory authority shall take steps
to bring about an agreement under procedures laid down by that
authority. The procedures shall be open to the public in accordance with
Article 14 (2).
Where an organization authorized to proyide public telecommunications
networks or publicly available telecommunications services enters into
interconnection agreements with others, the national regulatory author-
ity shall have the right to inspect all such interconnection agreements in
their entirety.
In the event of an interconnection dispute between organizations in a
Member State, the national regulatory authority of that Member State
shall, at the request of either party, take steps to resolve the dispute within
six months of this request. The resolution of the dispute shall represent a
fair balance between the legitimate interests of both parties.
In so doing, the national regulatory authority shall take into account,
inter alia:
= the user interest,
- regulatory obligations or constraints imposed on any of the parties,
~ the desirability of stimulating innovative market offerings, and of
providing users with a wide range of telecommunications services at
a national and at a Community level,
— the availability of technically and commercially viable alternatives
to the interconnection requested,
- the desirability of ensuring equal access arrangements,
~ the need to maintain the integrity of the public telecommunications
network and the interoperability of services,
- the nature of the request in relation to the resources available to
meet the request,
- the relative market positions of the parties,
— the public interest (e.g. the protection of the environment),
- the promotion of competition,
~ the need to maintain a universal service.
A decision on the matter by a national regulatory authority shall be made
available to the public in accordance with national procedures. The
parties concerned shall be given a full statement of the reasons on which
it is based.
6. In cases where organizations which are authorized to provide public

telecommunications networks and/or publicly available telecommunica-
tions services have not interconnected their facilities, national regulatory
authorities, in compliance with the principle of proportionality and in the
interest of users, shall be able, as a last resort, to require the organizations
concerned to interconnect their facilities in order to protect essential
public interests and, where appropriate, shall be able to set terms of
interconnection.
Article 10
Essential requirements
Without prejudice to action which may be taken in accordance with Articles 3
(5) and 5 (3) of Directive 90/387/EEC, the essential requirements as specified
in Article 3 (2) of Directive 90/387/EEC shall for the purpose of this Directive
apply to interconnection to public telecommunications networks and/or
publicly available telecommunications services as set out in points (a) to (d) of
this Article.
Where the national regulatory authority imposes conditions based on essential
requirements in interconnection agreements, these conditions shall be pub-
lished in the manner laid down in Article 14 (1).
(a) Security of network operations: Member States shall take all necessary
steps to ensure that the availability of public telecommunications net-
works and publicly available telecommunications services is maintained
in the event of catastrophic network breakdown or in exceptional cases of
force majeure, such as extreme weather, earthquakes, flood, lightning or
fire.
In the event of the circumstances referred to in the first subparagraph, the
bodies concerned shall make every endeavour to maintain the highest
level of service to meet any priorities laid down by the competent national
authorities.
The need to meet these requirements shall not constitute a valid reason
for refusal to negotiate terms for interconnection.
Furthermore, the national regulatory authority shall ensure that any
conditions for interconnection related to the security of networks as
regards risk of accidents are proportionate and non-discriminatory in
nature, and are based on objective criteria identified in advance.
(b) Maintenance of network integrity: Member States shall take all necessary
steps to ensure that the integrity of public telecommunications networks
is maintained. The need to maintain network integrity does not constitute
a valid reason for refusal to negotiate terms for interconnection. The
national regulatory authority shall ensure that any conditions for inter-
connection related to protection of network integrity are proportionate
and non-discriminatory in nature, and are based on objective criteria
identified in advance.
(c) Interoperability of services: Member States may impose conditions in
G7/33/EC 228
interconnection agreements in order to ensure interoperability of ser-

vices, including conditions designed to ensure satisfactory end-to-end
quality. Such conditions may include implementation of specific technical
standards, or specifications, or codes of conduct agreed by the market
players.
(d) Protection of data: Member States may impose conditions in intercon-
nection agreements in order to ensure the protection of data, to the extent
necessary to ensure compliance with relevant regulatory provisions on
the protection of data including protection of personal data, the con-
fidentiality of information processed, transmitted or stored, and the
protection of privacy, compatible with Community law.
Article 11
Collocation and facility sharing
Where an organization providing public telecommunications networks and/or
publicly available telecommunications services has the right under national
legislation to install facilities on, over or under public or private land, or may
take advantage of a procedure for the expropriation or use of property,
national regulatory authorities shall encourage the sharing of such facilities
and/or property with other organizations providing telecommunications net-
works and publicly available services, in particular where essential require-
ments deprive other organizations of access to viable alternatives.
Agreements for collocation or facility sharing shall normally be a matter for
commercial and technical agreement between the parties concerned. The
national regulatory authority may intervene to resolve disputes, as provided
for in Article 9.
Member States may impose facility and/or property sharing arrangements
(including physical collocation) only after an appropriate period of public
consultation during which all interested parties must be given an opportunity
to express their views. Such arrangements may include rules for apportioning
the costs of facility and/or property sharing.
Article 12
Numbering
1. Member States shall ensure the provision of adequate numbers and
numbering ranges for all publicly available telecommunications services.
i) In order to ensure full interoperability of Europe-wide networks and
services, Member States in accordance with the Treaty shall take all
necessary steps to ensure the coordination of their national positions in
international organizations and fora where numbering decisions are
taken, taking into account possible future developments in numbering in
Europe.
3. | Member States shall ensure that national telecommunications numbering
plans are controlled by the national regulatory authority, in order to
guarantee independence from organizations providing telecommunica-
tions networks or telecommunications services and facilitate number
portability. In order to ensure effective competition, national regulatory

authorities shall ensure that the procedures for allocating individual
numbers and/or numbering ranges are transparent, equitable and timely
and the allocation is carried out in an objective, transparent and non-
discriminatory manner. National regulatory authorities may lay down
conditions for the use of certain prefixes or certain short codes, in
particular where these are used for services of general public interest
(e.g. freephone services, kiosk billed services, directory services, emer-
gency services), or to ensure equal access.
National regulatory authorities shall ensure that the main elements of the
national numbering plans, and all subsequent additions or amendments
to them, are published in accordance with Article 14 (1), subject only to
limitations imposed on the grounds of national security.
National regulatory authorities shall encourage the earliest possible
introduction of the number portability facility whereby end-users who
so request can retain their number(s) on the fixed public telephone
network at a specific location independent of the organization providing
service, and shall ensure that this facility is available at least in all major
centres of population before | January 2003.
In order to ensure that charges to consumers are reasonable, national
regulatory authorities shall ensure that pricing for interconnection
related to the provision of this facility is reasonable.
National regulatory authorities shall ensure that numbering plans and
procedures are applied in a manner that gives fair and equal treatment to
all providers of publicly available telecommunications services. In
particular, Member States shall ensure that an organization allocated a
range of numbers shall avoid undue discrimination in the number
sequences used to give access to the services of other telecommunications
operators.
Article 13
Technical standards
I Without prejudice to Article 5 (3) of Directive 90/387/EEC whereby the
implementation of specified European standards may be made compul-
sory, national regulatory authorities shall ensure that organizations
providing public telecommunications networks or publicly available
telecommunications services take full account of standards listed in the
Official Journal of the European Communities as being suitable for the
purpose of interconnection.
In the absence of such standards, national regulatory authorities shall
encourage the provision of technical interfaces for interconnection
according to the standards or specifications listed below:
— standards adopted by European standardization bodies such as the
European Telecommunications Standards Institute (ETSI) or the
European Committee for Standardization/European Committee
97/33/EC 230
for Electrotechnical Standardization (CEN/CENELEC), or, in the

absence of such standards,
- international standards or recommendations adopted by the Inter-
national Telecommunications Union (ITU), the International Or-
ganization for Standardization (ISO) or the International
Electrotechnical Committee (IEC), or, in the absence of such
standards,
— national standards.
The Commission may, acting in accordance with the procedure laid down
in Article 15, request standards for interconnection and access to be
drawn up, where appropriate, by European standardization bodies.
Reference to standards for interconnection and access may be published
in the Official Journal of the European Communities in accordance with
Article 5 of Directive 90/387/EEC.
Article 14
Le: With regard to the information identified in Article 7 (3), Article 9 (2),
Article 10 and Article 12 (4), national regulatory authorities shall ensure
that up-to-date information is published in an appropriate manner in
order to provide easy access to that information for interested parties.
Reference shall be made in the national Official Gazette of the Member
State concerned to the manner in which this information is published.
With regard to the information identified in Article 4 (1), Article 5 (3),
Article 5 (5), Article 6 (c) and Article 9 (3), national regulatory
authorities shall ensure that up-to-date specific information referred to
in those Articles is made available on request to interested parties, free of
charge, during normal working hours. Reference shall be made in the
national Official Gazette of the Member State concerned to the times and
location(s) at which the information is available.
Member States shall notify to the Commission before | January 1998 —
and immediately thereafter in case of any change — the manner in which
the information referred to in paragraphs | and 2 is made available. The
Commission shall regularly publish a corresponding reference to such
notifications in the Official Journal of the European Communities.
Article 15
ie The Commission shall be assisted by the committee set up by Article 9 (1)
of Directive 90/387/EEC, hereinafter referred to as the ‘ONP Committee’.
Dp The representative of the Commission shall submit to the committee a
minutes.
Article 16
i Notwithstanding the provisions of Article 15, the following procedure
shall apply in respect of the matters covered by Article 19.
Article 17
Procedure for resolving disputes between organizations operating under
authorizations provided by different Member States
it Without prejudice to:
(a) any action that the Commission or any Member State may take
pursuant to the Treaty;
(b) the rights of the party invoking the procedure in paragraphs 2 and
3, of the organizations concerned or of any other party under
applicable national law;
the procedure set out in paragraphs 2 and 3 shall be available for the
resolution of interconnection disputes between organizations operating
under authorizations granted by different Member States, where such
dispute does not fall within the responsibility of a single national
regulatory authority exercising its power in accordance with Article 9.
Any party having a complaint against another organization over inter-
connection may refer the complaint to the national regulatory authority
97/331HC 232
of the Member State that has granted the authorization of the organiza-
tion against which the complaint is made. The national regulatory
authority shall take steps to resolve the dispute in accordance with the
procedures and timescale set out in Article 9 (5).
Where there are concurrent disputes between the same two organiza-
tions, the national regulatory authorities concerned shall, on request of
either party in dispute, coordinate their efforts in order to bring about
resolution of the disputes, in accordance with the principles set out in
Article 9 (1), within 6 months of referral. The solutions shall represent a
fair balance between the legitimate interests of both parties in dispute and
be consistent with interconnection rules in the Member States concerned,
in conformity with Community law.
Article 18
Notification :
1. Member States shall ensure that national regulatory authorities have the
necessary means for carrying out the tasks identified in this Directive,
and shall notify to the Commission by 31 January 1997 the national
regulatory authorities responsible for those tasks.
National regulatory authorities shall notify to the Commission by 31
January 1997, and immediately thereafter in the event of any change, the
names of those organizations which:
= have universal service obligations for the provision of the public
telecommunications networks and publicly available telecommuni-
cations services set out in Part 1 of Annex I and which are
authorized to collect directly a contribution to the net cost of
universal service under the procedure in Article 5 (2),
— are subject to the provisions of this Directive concerning organiza-
tions with significant market power,
- are covered by Annex II.
The Commission may request national regulatory authorities to provide
their reasons for classifying an organization as having or not having
significant market power.
The Commission shall publish the names referred to in paragraph 2 in the
Article 19
Modifications necessary to adapt Annexes IV, V and VII to the Directive to
new technological developments or to changes in market and consumer
demand shall be determined by the Commission in accordance with the
procedure laid down in Article 16.
Article 20
Deferment
dy Deferment of the obligations under Articles 3 (1), 3 (2), 4 (1), 4 (2), 9 (1)
and 9 (3) insofar as those obligations concern direct interconnection
between the mobile networks of that Member State and the fixed or
mobile networks of other Member States, and under Article 5, shall be
granted to those Member States identified in the Council 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
make use of them.
Deferment of the obligations under Article 12 (5) may be requested where
the Member State concerned can prove that they would impose an
excessive burden on certain organizations or classes of organization.
The Member State shall inform the Commission of the reasons for
requesting a deferment, the date by which the requirements can be met,
and the measures envisaged in order to meet this deadline. The Commis-
sion shall consider the request taking into account the particular situation
in that Member State and the need to ensure a coherent regulatory
environment at a Community level, and shall inform the Member State
whether it deems that the particular situation in that Member State
justifies a deferment and, if so, until which date such deferment is
justified.
Article 21
Interconnection with third country organizations
i. Member States may inform the Commission of any general difficulties
encountered, de jure or de facto, by Community organizations in
interconnecting with organizations in third countries, which have been
brought to their attention.
Whenever the Commission is informed of the existence of such difficul-
ties, the Commission 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.
Measures taken pursuant to paragraph 2 shall be without prejudice to the
Community’s and Member States’ obligations under relevant interna-
tional agreements.
Article 22
Review
1; The Commission shall report to the European Parliament and to the
Council by 31 December 1997, and periodically thereafter, on the
availability of rights to interconnect in third countries for the benefit of
Community organizations.
97/33/EC 234
The Commission shall examine and report periodically to the European

Parliament and to the Council on the functioning of this Directive, on the
first occasion not later than 31 December 1999. For this purpose, the
Commission may request information from the Member States.
The report shall examine what provisions of this Directive should be
adapted in the light of the developments in the market, the evolution of
technology and the changes in user demand, in particular:
(a) for the provisions under Article 5,
(b) to confirm the timetable laid down in Article 12 (5).
The Commission shall also investigate in the report the added value of the
setting up of a European Regulatory Authority to carry out those tasks
which would prove to be better undertaken at Community level.
Article 23
Transposition
Me Member States shall bring into force the laws, regulations and adminis-
trative provisions necessary to comply with this Directive by 31 Decem-
ber 1997. They shall immediately inform the Commission thereof.
When Member States adopt these provisions, these shall contain a
reference to this Directive or shall be accompanied by such reference at
the time of their official publication. The procedure for such reference
shall be adopted by Member States.
main provisions of national law which they adopt in the field covered by
this Directive.
Article 24
Entry into force
Article 25
Addressees

The President
J. M. GIL-ROBLES
For the Council
The President
A. NUIS
(1) OJ No € 313, 24. 11. 1995, p; 7.

@) OJ No C153, 28.5. 1996, p. 21.
(3) Opinion of the European Parliament of 14 February 1996 (OJ No C 65, 4. 3. 1996, p. 69),
Council Common Position of 18 June 1996 (OJ No C 220, 29. 7. 1996, p. 13) and Decision of
the European Parliament of 19 September 1996 (OJ No C 320, 28. 10. 1996, p. 138). Council
Decision of 2 June 1997. Decision of European Parliament of 11 June 1997.
(4) OJ No C 48, 16. 2. 1994, p. 1.
(5) OJ NoL 192, 24. 7. 1990, p. 1.
(6) OJ No C 213, 6. 8. 1993, p. 1.
Gi) OW No @258) 35 1071995, pale
(8) OJ No L 109, 26. 4. 1983, p. 8. Directive as last amended by Commission Decision 96/139/
EC (OJ No L 32, 10. 2. 1996, p. 31).
(9) OJ No C 102, 4. 4. 1996, p. 1.
ANNEX I
Specific public telecommunications networks and publicly available
telecommunications services
(referred to in Article 3 (2))
The following public telecommunications networks and publicly available

telecommunications services are considered of major importance at European
level.
Organizations providing the public telecommunications networks and/or

publicly available services identified below which have significant market
power are subject to specific obligations with regard to interconnection and
access, as specified in Articles 4 (2), 6 and 7.
Part 1
The fixed public telephone network
The fixed public telephone network means the public switched telecommunica-
tions network which supports the transfer between network termination points
at fixed locations of speech and 3,1 kHz bandwidth audio information, to
support inter alia:
~ voice telephony,
- facsimile Group III communications, in accordance with ITU-T Recom-
mendations in the “T-series’,
— voice band data transmission via modems at a rate of at least 2 400 bit/s,
in accordance with ITU-T Recommendations in the ‘V-series’.
Access to the end-user’s network termination point is via a number or numbers

in the national numbering plan.
The fixed public telephone service according to 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].
The fixed public telephone service means the provision to end-users at fixed
locations of a service for the originating and receiving of national and
97/33/EC 236
international calls, and may include access to emergency (112) services, the
provision of operator assistance, directory services, provision of public pay
phones, provision of service under special terms and/or provision of special
facilities for customers with disabilities or with special social needs.
Access to the end-user is via a number or numbers in the national numbering
plan.
Part 2
The leased lines service
Leased lines means the telecommunications facilities which provide for
transparent transmission capacity between network termination points, and
which do not include on-demand switching (switching functions which the user
can control as part of the leased line provision). They may include systems
which allow flexible use of the leased line bandwidth, including certain routing
and management capabilities.
Part 3
Public mobile telephone networks
A public mobile telephony network is a public telephone network where the
network termination points are not at fixed locations.
Public mobile telephone services
A public mobile telephone service is a telephony service whose provision

consists, wholly or partly, in the establishment of radiocommunications to one
mobile user, and makes use wholly or partly of a public mobile telephone
network.
@) OLNow 321) 30) 1221995) pa6:
ANNEX II
Organizations with rights and obligations to negotiate interconnection with
each other in order to ensure community-wide services
This Annex covers those organizations which provide switched and unswitched
bearer capabilities to users upon which other telecommunications services
depend.
Organizations in the following categories have both rights and obligations to

interconnect with each other, in accordance with Article 4 (1). Interconnection
between these organizations is subject to additional supervision by national
regulatory authorities, in accordance with Article 9 (2). Special interconnec-
tion charges, terms and conditions may exist for these categories of organiza-
tions in accordance with Article 7 (3).
1. Organizations which provide fixed and/or mobile public switched tele-

communications networks and/or publicly available telecommunications
services, and in so doing control the means of access to one or more
network termination points identified by one or more unique numbers in
the national numbering plan. (See notes below).
2. | Organizations which provide leased lines to users’ premises.
3. Organizations which are authorized in a Member State to provide
international telecommunications circuits between the Community and
third countries, for which purpose they have exclusive or special rights.
4. Organizations providing telecommunications services which are per-
mitted in this category to interconnect in accordance with relevant
national licensing or authorization schemes.
Notes
Control of the means of access to a network termination point means the
ability to control the telecommunications services available to the end-user at
that network termination point and/or the ability to deny other service
providers access to the end-user at the network termination point.
Control of the means of access may entail ownership or control of the physical
link to the end-user (whether wire or wireless), and/or the ability to change or
withdraw the national number or numbers needed to access an end-user’s
network termination point.
ANNEX III
Calculating the cost of universal service obligations for voice telephony
Universal service obligations refer to those obligations placed upon an

organization by a Member State which concern the provision of a network
and service throughout a specified geographical area, including — where
required — averaged prices in that geographical area for the provision of that
service.
The cost of universal service obligations shall be calculated as the difference
between the net cost for an organization of operating with the universal service
obligations and operating without the universal service obligations.
This applies whether the network in a particular Member State is fully
developed or is still undergoing development and expansion.
The calculation shall be based upon the costs attributable to:

(i) elements of the identified services which can only be provided at a loss or
provided under cost conditions falling outside normal commercial
standards.
This category may include service elements such as access to emergency
telephone services, provision of certain public pay telephones, provision
of certain services or equipment for disabled people, etc.
97/33/EC 238
(ii) specific end-users or groups of end-users who, taking into account the
cost of providing the specified network and service, the revenue generated
and any geographical averaging of prices imposed by the Member State,
can only be served at a loss or under cost conditions falling outside
normal commercial standards.
This category includes those end-users or groups of end-users which
would not be served by a commercial operator which did not have an
obligation to provide universal service.
In peripheral regions with expanding networks, the cost calculation
should be based on the additional cost of serving those end-users or
groups of end-users which an operator applying the normal commercial
principles of a competitive environment would choose not to serve.
Revenues shall be taken into account in calculating the net costs. Costs
and revenues should be forward-looking. :
ANNEX IV
List of examples of elements for interconnection charges
Interconnection charges refer to the actual charges payable by interconnected

parties.
The tariff structure refers to the broad categories into which interconnection
charges are divided, e.g.
- charges to cover initial implementation of the physical interconnection,
based on the costs of providing the specific interconnection requested
(e.g. specific equipment and resources; compatibility testing),
- rental charges to cover the on-going use of equipment and resources
(connection maintenance, etc.),
- variable charges for ancillary and supplementary services (e.g. access to
directory services; operator assistance; data collection; charging; billing;
switch-based and advanced services etc.),
— traffic related charges, for the conveyance of traffic to and from the
interconnected network (e.g. the costs of switching and transmission),
which may be on a per minute basis, and/or on the basis of additional
network capacity required.
Tariff elements refer to the individual prices set for each network component or
facility provided to the interconnected party.
Tariffs and charges for interconnection must follow the principles of cost
orientation and transparency, in accordance with Article 7 (2).
Interconnection charges may include a fair share, according to the principle of
proportionality, of joint and common costs and the costs incurred in providing
equal access, and number portability, and the costs of ensuring essential
requirements (maintenance of the network integrity; network security in cases

of emergency; interoperability of services; and protection of data).
ANNEX V
Cost accounting systems for interconnection
Article 7 (5) calls for details of the cost accounting system; the list below
indicates, by way of example, some elements which may be included in such
accounting systems.
The purpose of publishing this information is to provide transparency in the

calculation of interconnection charges, so that other market players are in a
position to ascertain that the charges have been fairly and properly calculated.
This objective should be taken into account by the national regulatory
authority and the organizations affected when determining the level of detail
in the information published.
The list below indicates the elements to be included in the information

published.
1. The cost standard used
e.g. fully distributed costs, long-run average incremental costs, marginal costs,
stand-alone costs, embedded direct costs, etc.
including the cost base(s) used,
i.e. historic costs (based on actual expenditure incurred for equipment and
systems) or forward-looking costs (based on estimated replacement costs of
equipment or systems).
2. The cost elements included in the interconnection tariff
Identification of all the individual cost components which together make up the
interconnection charge, including the profit element.
3. The degrees and methods of cost allocation, in particular the treatment of

joint and common costs
Details of the degree to which direct costs are analyzed, and the degree and
method by which joint and common costs are included in interconnection
charges.
4. Accounting conventions
i.e. the accounting conventions used for the treatment of costs covering:
- the timescale for depreciation of major categories of fixed asset (e.g. land,
buildings, equipment, etc.),
the treatment, in terms of revenue versus capital cost, of other major
expenditure items (e.g. computer software and systems, research and
97/33/EC 240
development, new business development, direct and indirect construc-

tion, repairs and maintenance, finance charges, etc.)
The information on cost accounting systems, as identified in this Annex, may
be amended in accordance with the procedure referred to in Article 19.
ANNEX VI
Thresholds for telecommunications turnover
(referred to in Article 8 (1) and 8 (2))
Part 1
The threshold for annual turnover in telecommunications activities referred to
in Article 8 (1) shall be fifty million ecus. (ECU 50 million)
Part 2 ‘
The threshold for annual turnover in telecommunications activities referred to
in Article 8 (2) shall be twenty million ecus. (ECU 20 million)
ANNEX VII
Framework for negotiation of interconnection agreements
Bare!
Areas where the national regulatory authority may set ex ante conditions
(a) Dispute resolution procedure,
(b) Requirements for publication/access to interconnection agreements and
other periodic publication duties,
(c) Requirements for the provision of equal access and number portability,
(d) Requirements to provide facility sharing, including collocation,
(ce) Requirements to ensure the maintenance of essential requirements,
(f) Requirements for allocation and use of numbering resources (including
access to directory services, emergency services and pan-European
numbers),
(g) Requirements concerning the maintenance of end-to-end quality of
service,
(h) Where applicable, determination of the unbundled part of the intercon-
nection charge which represents a contribution to the net cost of
universal service obligations.
Part2
Other issues the coverage of which in interconnection agreements is to be
encouraged
(a) Description of interconnection services to be provided,
(b) Terms of payment, including billing procedures,
(c) Locations of the points of interconnection,
(d) Technical standards for interconnection,
(e) Interoperability tests,

(f) Measures to comply with essential requirements,
(g) Intellectual property rights,
(h) Definition and limitation of liability and indemnity,
(i) Definition of interconnection charges and their evolution over time,
(j) Dispute resolution procedure between parties before requesting national
regulatory authority intervention,
(k) Duration and renegotiation of agreements,
(I) Procedure in the event of alterations being proposed to the network or
service offerings of one of the parties,
(m) Achievement of equal access,
(n) Provision of facility sharing,
(0) Access to ancillary, supplementary and advanced services,
(p) Traffic/network management,
(q) Maintenance and quality of interconnection services,
(r) Confidentiality of non-public parts of the agreements,
(s) Training of staff.
6 OCTOBER 1997 AMENDING COUNCIL DIRECTIVES 90/387/EEC AND
92/44/EEC FOR THE PURPOSE OF ADAPTATION TO A COMPETITIVE
ENVIRONMENT IN TELECOMMUNICATIONS (97/51/EC)

EUROPEAN UNION,
Treaty [3], in the light of the joint text approved by the Conciliation Committee
on 28 May 1997,
implementation of open network provision [4] (ONP) concerns the harmoniza-
tion of conditions for open and efficient access to and use of public
telecommunications networks and, where applicable, services; whereas, in
accordance with that Directive, the Council adopted Directive 92/44/EEC of
5 June 1992 on the application of open network provision to leased lines [5];
(2) Whereas the Council resolution of 22 July 1993 on the review of the
ment in that market [6], combined with the Council resolution of 22 December
1994 on the principles and timetable for the liberalization of telecommunica-
tions infrastructures [7], call for the liberalization of telecommunications
services and infrastructures by 1 January 1998 (with transitional periods for
certain Member States); whereas this is supported by the European Parliament
resolution of 20 April 1993 on the Commission’s 1992 review of the situation in
the telecommunications sector [8], and the European Parliament resolution of
19 May 1995 on the Green Paper on the liberalization of telecommunications
infrastructures and cable television networks (Part II) [9];
(3) Whereas the Council resolution of 22 July 1993 considered as a major
goal for the Community’s telecommunications policy the application through-
out the Community and, where necessary, the adaptation, in the light of further
liberalization, of open network provision principles in respect of the entities
covered and of such issues as universal service, interconnection and access
charges as well as the consequent questions connected with licensing condi-
tions; whereas the Council resolution of 18 September 1995 on the implemen-
tation of the future regulatory framework for telecommunications [10] called
242
on the Commission, in accordance with the timetable set out in the Council
resolutions of 22 July 1993 and 22 December 1994, to present to the European
Parliament and the Council before 1 January 1996 all legislative provisions
intended to establish the European regulatory framework for telecommunica-
tions accompanying the full liberalization of this sector, in particular concern-
ing the adaptation of open network provision measures to the future
competitive environment;
(4) Whereas the European Parliament resolution of 6 May 1994 on the

Commission communication accompanied by the proposal for a Council
resolution on universal service principles in the telecommunications sector
[11] emphasizes the central importance of universal service principles; whereas
the Council resolution of 7 February 1994 on universal service principles in the
telecommunications sector [12] provides a basic definition of universal service
and calls upon the Member States to establish and maintain an appropriate
regulatory framework in order to ensure universal service throughout their
territories; whereas, as was recognized by the Council in that resolution, the
concept of universal service must evolve to keep pace with advances in
technology, market development and changes in user demand; whereas uni-
versal service in telecommunications will have a role to play in strengthening
social and economic cohesion, in particular in remote, peripheral, landlocked
and rural areas and islands of the Community; whereas, where justified, the net
cost of universal service obligations may be shared by market players in
(5) Whereas the basic principles concerning access to and the use of public
telecommunications networks and services, set out within the open network
provision framework, must be adapted to ensure Europe-wide services in a
liberalized environment, in order to benefit users and organizations providing
public telecommunications networks and/or services; whereas a voluntary
approach based on common technical standards and specifications, with
consultations undertaken where necessary to satisfy user needs, is appropriate
in a liberalized environment; whereas, nevertheless, the provision of universal
service and the availability of a minimum set of services must be guaranteed to
all users in the Community in accordance with the Community measures
applicable; whereas a general framework for interconnection to public tele-
communications networks and public telecommunications services is needed in
order to provide end-to-end interoperability of services for Community users;
(6) Whereas open network provision conditions must not restrict the use of
or access to public telecommunications networks or publicly available tele-
communications services except on grounds of essential requirements or the
exercise of special and exclusive rights retained by Member States in accor-
dance with Community law;
(7) Whereas the provisions of this Directive do not prevent a Member State
from taking measures justified on grounds set out in Articles 36 and 56 of the
97/51/EC 244
Treaty, and in particular on grounds of public security, public policy and public
morality;
(8) Whereas a modus vivendi [13] between the European Parliament, the
Treaty was concluded on 20 December 1994;
(9) Whereas in accordance with the principle of the separation of regulatory

and operational functions, Member States should guarantee the independence
of the national regulatory authority or authorities with a view to ensuring the
impartiality of their decisions, and ensure that the national regulatory
authority or authorities of each Member State will play a keyrole in the
implementation of the regulatory framework set out in relevant Community
legislation; whereas this requirement of independence is without prejudice to
the institutional autonomy and constitutional obligations of the Member
States, or to the principle of neutrality with regard to the rules in Member
States governing the system of property ownership in accordance with Article
222 of the Treaty; whereas the national regulatory authorities should be in
possession of all the resources necessary, in terms of staffing, expertise, and
financial means, for the performance of their function;
(10) Whereas numbering and the more general concepts of addressing and
naming play an important role; whereas adherence to a harmonized approach
for numbering/addressing and, where applicable, naming will contribute to
Europe-wide end-to-end communications for users and the interoperability of
services; whereas in addition to numbering it may be appropriate to apply the
principles of objectivity, transparency, non-discrimination and proportionality
in the allocation of names and addresses; whereas Commission Directive 96/
19/EC of 13 March 1996 amending Directive 90/388/EEC with regard to the
implementation of full competition in telecommunications markets [14] pro-
vides for adequate numbers to be available for all telecommunications services,
and for numbers to be allocated in an objective, transparent, non-discrimina-
tory and proportionate manner;
(11) Whereas in order to guarantee the provision of leased lines throughout

the Community, Member States should ensure that at every point in their
territories users have access to a minimum set of leased lines from at least one
organization; whereas organizations with obligations to provide leased lines
should be designated by Member States; whereas Member States must notify
the Commission of the organizations subject to this Directive, the leased line
types within the minimum set which they are required to provide, and the
geographical area in which this requirement applies; whereas, within a specific
geographical area, all the leased line types provided by a notified organization
are subject to the general provisions of this Directive;
(12) Whereas the market power of an organization depends on a number of

factors, including its share of the relevant product or service market in the
relevant geographical market, its turnover relative to the size of the market, its
ability to influence market conditions, its control of the means of access to end-
users, its access to financial resources and its experience in providing products
and services in the market; whereas determining which organizations have
significant market power should be a function of national regulatory autho-
rities, taking into account the situation on the relevant market;
(13) Whereas the concept of leased-lines services will evolve with new
technological advances and market demand, allowing users more flexible use
of the leased-line bandwidth;
(14) Whereas, in order to achieve more efficient communications within the
Community, it is important that Member States encourage the provision of an
additional harmonized set of higher-order leased lines, taking into account
market demand and progress with standardization;
(15) Whereas until an effective competitive environment is achieved, there is
a need for the regulatory supervision of tariffs for leased lines with a view to
ensuring cost orientation and transparency in accordance with the principle of
proportionality; whereas it is appropriate to allow the requirements for cost
orientation and transparency in specific markets to be set aside where no
organization has significant market power or where effective competition
ensures that tariffs for leased lines are reasonable;
(16) Whereas common technical regulations (CTRs) adopted under Council
Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of
the Member States concerning telecommunications terminal equipment, in-
cluding the mutual recognition of their conformity [15], and Council Directive
93/97/EEC of 29 October 1993 supplementing Directive 91/263/EEC in
respect of satellite earth station equipment [16] define the conditions for the
connection of terminal equipment to leased lines;
(17) Whereas certain amendments to existing open network provision
measures are appropriate in order to ensure their consistency with new
technical developments and with other regulatory measures that will form part
of the overall regulatory framework for telecommunications;
(18) Whereas all the areas identified in Annex I to Directive 90/387/EEC as
possible areas for the application of open network provision conditions have
been addressed in analysis reports subject to public consultation, in accordance
with the procedure laid down in Article 4 of that Directive; whereas all the
priority measures identified in Annex III thereto have been adopted;
(19) Whereas in order to enable the Commission to carry out the monitoring
task assigned to it by the Treaty, changes in national regulatory authority or
97/51/EC 246
authorities and the organizations affected must be swiftly communicated to the

Commission;
(20) Whereas, in accordance with the principles of subsidiarity and propor-
tionality as stated in Article 3b of the Treaty, the objective of adapting
Directives 90/387/EEC and 92/44/EEC to a competitive environment in
telecommunications cannot be sufficiently achieved by the Member States and
can therefore be better achieved by the Community;
(21) Whereas the functioning of Directives 90/387/EEC and 92/44/EEC
should be reviewed no later than 31 December 1999; whereas that review
should take account of the increasing effectivness of competition in telecom-
munications markets;
(22) Whereas, when bringing forward proposals for any further measures in
pursuit of the aims of this Directive, consideration should be given to a single
consolidated text incorporating all relevant European Parliament and Council
Directives implementing the ONP provisions so as to improve the transparency
of Community legislation;
(23) Whereas pursuant to 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 improve-
ments,

Article 1
Amendment of Directive 90/387/EEC
Directive 90/387/EEC is hereby amended as follows:
1. Article 1 shall be amended as follows:
(a) paragraph 2 shall be replaced by the following:
‘2. The purpose of the conditions prescribed in paragraph | shall be to
facilitate the provision of public telecommunications networks
and/or public telecommunications services, within and between
Member States, and in particular the provision of services by
companies, firms or natural persons established in a Member State
other than that of the company, firm or natural person for whom
the services are intended’;
(b) the following paragraph shall be added:
‘3. Open network provision conditions shall aim at:
— ensuring the availability of a minimum set of services,
- securing access and interconnection to public telecommunica-
tions networks and public telecommunications services,
- encouraging the provision of harmonized telecommunica-

tions services to the benefit of users, in particular by identify-
ing and promoting by voluntary means harmonized technical
interfaces for open and efficient access and interconnection,
and associated standards and/or specifications and
- guaranteeing the provision of universal service in telecommu-
nications, taking account of any future evolution, throughout
the Community,
2. Article 2 shall be replaced by the following:
‘Article 2
ie ‘users’ shall mean individuals, including consumers, or organizations
using or requesting publicly available telecommunications services;
‘telecommunications network’ shall mean transmission systems and,
where applicable, switching equipment and other resources which permit
the conveyance of signals between defined termination points by wire, by
‘public telecommunications network’ shall mean a telecommunications
network used, wholly or in part, for the provision of publicly available
‘telecommunications services’ shall mean services the provision of which
consists wholly or partly in the transmission and routing of signals on
telecommunications networks, with the exception of radio and television
broadcasting;
‘universal service’ shall mean a defined minimum set of services of
specified quality which is available to all users regardless of their
geographical location and, in the light of specific national conditions, at
an affordable price;
‘network termination point’ shall mean the physical point at which a user
is provided with access to a public telecommunications network. The
locations of network termination points shall be defined by the national
regulatory authority and shall represent a boundary, for regulatory
purposes, of the public telecommunications network;
‘essential requirements’ shall mean 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 of 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 protection of personal data, the confidentiality of informa-
97/51/EC 248
tion transmitted or stored and the protection of privacy;

‘interconnection’ shall mean the physical and logical linking of telecom-
munications networks used by the same or a different organization in
order to allow the users of one organization to communicate with users of
the same or another organization or to access services provided by
another organizations. Services may be provided by the parties involved
or other parties who have access to the network;
‘open network provision conditions’ shall mean the conditions, harmo-
nized in accordance with this Directive, which govern open and efficient
access to public telecommunications networks and, where applicable,
public telecommunications services and the efficient use of those net-
works and services.
Without prejudice to their application on a case-by-case basis, open
regard to:
~ technical interfaces, including the definition and implementation of
= usage conditions,
= tariff principles and
- access to frequencies and numbers/addresses/names, where re-
quired in accordance with the reference framework of the Annex;
‘technical specifications’, ‘standards’ and ‘terminal equipment’ shall have
the same meanings as in Article 1 of Directive 91/263/EEC (*).
C) OFT 12859235-501991 pe:
3 Article 3 shall be amended as follows:
(a) paragraphs 2 and 3 shall be replaced by the following:

‘2. Open network provision conditions shall not restrict access to
public telecommunications networks or public telecommunications
services, except on grounds of essential requirements within the
framework of Community law. In addition, the conditions generally
applicable to the connection of terminal equipment to the network
shall apply.
3. Open network provision conditions may not allow for any addi-
tional restrictions on the use of the public telecommunications
networks and/or public telecommunications services, except those
which are compatible with Community law’;
(b) paragraph 4 shall be deleted;
(c) paragraph 5 shall be replaced by the following:
‘5S. Without prejudice to the specific Directives adopted in the field of
open network provision and in so far as the application of the
essential requirements referred to in paragraph 2 may cause
Member States to limit access to public telecommunications net-

works or services, the rules for uniform application of the essential
requirements, in particular concerning the interoperability of ser-
vices and the protection of data, shall be determined, where
appropriate, by the Commission, in accordance with the procedure
laid down in Article 10’;
4. Article 4 shall be deleted;
Se Article 5 shall be replaced by the following:
‘Article 5
i. References to standards and/or specifications drawn up as a basis for
harmonized technical interfaces and/or service features for open network
provision shall be published in the Official Journal of the European
Communities as suitable for the requirement of open and efficient access,
interconnection and interoperability in order to encourage the provision
of harmonized telecommunications services to the benefit of users
Where necessary, the Commission may, in consultation with the commit-
tee referred to in Article 9, request standards to be drawn up by European
standardization bodies.
Member States shall encourage the use of the standards and/or specifica-
tions to which reference is made in the Official Journal of the European
Communities, in accordance with paragraph 1, for the provision of
technical interfaces and/or network functions.
As long as such standards and/or specifications are not adopted, Member
States shall encourage:
— standards and/or specifications adopted by European standardiza-
tion bodies such as the European Telecommunications Standards
Institute (ETSI) or the joint European standards institution, the
European Committee for Standardization (CEN)/European Com-
mittee for Electrotechnical Standardization (Cenelec),
or, in the absence of such standards and/or specifications,
Electrotechnical Committee (IEC),
— national standards and/or specifications.
If the implementation of the standards and/or specifications referred to in
paragraph | appears to be inadequate to ensure the interoperability of
transfrontier services in one or more Member States, the implementation
of such standards and/or specifications may be made compulsory under
the procedure laid down in Article 10, to the extent strictly necessary to
97/51/EC 250
ensure such interoperability and to improve freedom of choice for users,

subject to Articles 85 and 86 of the Treaty.
Before the implementation of the standards and/or specifications is made
compulsory in accordance with the first subparagraph, the Commission
shall, by publishing a notice to that effect in the Official Journal of the
European Communities, invite public comment by all parties concerned.
Where a Member State or the Commission considers that the harmo-
nized standards and/or specifications referred to in paragraph | do not
correspond to the objective of open and efficient access, interconnection
and interoperability, in particular the basic principles and the essential
requirements referred to in Article 3, it shall be decided whether or not it
is necessary to withdraw references to those standards and/or specifica-
tions from the Official Journal of the European Communities in accor-
dance with the procedure laid down in Article 10.
The Commission shall inform the Member States of any such decision
and publish information on the withdrawal of those standards and/or
specifications in the Official Journal of the European Communities’;
6. the following Article shall be inserted:
‘Article Sa
If Where the tasks assigned to the national regulatory authority in Com-
munity legislation are undertaken by more than one body, Member States
shall ensure that the tasks to be undertaken by each body are made
public.
In order to guarantee the independence of national regulatory autho-
rities:
— national regulatory authorities shall be legally distinct from and
functionally independent of all organizations providing telecommu-
nications networks, equipment or services,
- Member States that retain ownership or a significant degree of
control of organizations providing telecommunications networks
and/or services shall ensure effective structural separation of the
regulatory function from activities associated with ownership or
control.
Member States shall ensure that suitable mechanisms exist at national
level under which a party affected by a decision of the national regulatory
authority has a right of appeal to a body independent of the parties
involved.
Member States may take steps to ensure that national regulatory
authorities are able to obtain from organizations providing telecommu-
nications networks and/or services all the information necessary for
them to apply Community legislation’;
Articles 6 and 7 shall be deleted;
Article 8 shall be replaced by the following:

‘Article &
the Council on the functioning of this Directive, on the first occasion no later
than 31 December 1999. The report shall be based inter alia on the information
supplied by the Member States to the Commission and to the committee
referred to in Articles 9 and 10. Where necessary, the report shall examine
what provisions of this Directive should be adapted in the light of the
developments in the market. Further measures may be proposed in the report
in pursuit of the aims of this Directive. The Commission shall also investigate
in the report the added value of the setting up of a European Regulatory
Authority to carry out those tasks which would prove to be better undertaken
at Community level’;
9. in the second paragraph of Article 9 (1), ‘telecommunications organiza-

tions’ shall be replaced by ‘organizations providing public telecommunications
networks and/or publicly available telecommunications services’;
10. Annexes I and III shall be deleted;
11. Annex II shall be replaced by Annex I to this Directive.

Article 2
Amendment of Directive 92/44/EEC
1. ‘telecommunications organizations’ shall be replaced by ‘organizations
notified in accordance with Article 11 (1) (a)’ throughout;
2. the following paragraphs shall be added to Article 1:
‘Member States shall ensure that at every point in their territory at least one
organization is subject to the provisions of this Directive.
Member States shall ensure that obligations arising out of this Directive are not
imposed on organizations without significant market power in the relevant
leased-lines market, unless there are no organizations with significant market
power in the relevant leased-lines market in a given Member State’;
‘Article 2
Definitions
1. The definitions given in Directive 90/387/EEC, as amended by Directive
97/51/EC (*), shall apply, where relevant, to this Directive.
2. In addition, for the purposes of this Directive,
~ ‘leased lines’ shall mean the telecommunications facilities which
provide for transparent transmission capacity between network
termination points and which do not include on-demand switching
(switching functions which the user can control as part of the leased
line provision),
OT/STIER 252
— ‘Open Network Provision Committee’ shall mean the committee

referred to in Articles 9 and 10 of Directive 90/387/EEC,
— ‘national regulatory authority’ shall mean the body referred to in
Article 5a of Directive 90/387/EEC.
For the purposes of this Directive, an organization shall be presumed to
have significant market power when its share of the relevant leased-lines
market in a Member State is 25% or more. The relevant leased-lines
market shall be assessed on the basis of the type(s) of leased line offered in
a particular geographical area. The geographical area may cover the
whole or part of the territory of a Member State.
National regulatory authorities may determine that an organization with
a market share that is less than 25% of the relevant leased-lines market
has significant market power. They may also determine that an organiza-
tion with a market share that is 25% or more of the relevant leased-lines
market does not have significant market power.
In either case, the determination shall take into account the organiza-
tion’s ability to influence the leased-lines market conditions, its turnover
relative to the size of the market, its access to financial resources and its
experience in providing products and services in the market.
OJ 2955-297 LO I99N p23
Article 3 shall be amended as follows:
(a) the second sentence of paragraph 1 shall be replaced by the

following:
‘Changes in existing offerings and information on new offerings
shall be published as soon as possible. The national regulatory
authority may lay down a suitable period of notice’;
(b) paragraph 3 shall be deleted;
The first subparagraph of the second indent in Article 4 shall be replaced
by the following:
‘_ the typical delivery period, which is the period, counted from the
date when the user has made a firm request for a leased line, in
which 95% of all leased lines of the same type have been put
through to the customers’;
(a) paragraph | shall be replaced by the following:
‘1. Member States shall ensure that when access to and use of leased
lines is restricted in accordance with Community law those restric-
tions are imposed by the national regulatory authorities through
regulatory means.
No technical restrictions shall be introduced or maintained for the
interconnection of leased lines among each other or for the
interconnection of leased lines and public telecommunications

networks’;
(b) the second subparagraph of paragraph 3 (a) shall be replaced by the
following:
‘An emergency situation in this context shall mean an exceptional
case of force majeure, such as extreme weather, earthquakes, flood,
lightning or fire’;
(c) the first subparagraph of paragraph 4 and footnote 1 shall be
replaced by the following:
‘Access conditions relating to terminal equipment shall be
considered to be fulfilled when the terminal equipment complies
with the approval conditions laid down for its connection to the
network-termination point of the type of leased line concerned in
accordance with Directive 91/263/EEC (*) or 93/97/EEC (**).
Grr OVWAe 828 eSse OOo:

(2) OF 290924 seo O Some:
ik Article 7 shall be amended as follows:

(a) the following paragraph shall be inserted:
‘2a. Member States shall encourage provision of the additional
types of leased lines specified in Annex III, taking into account
market demand and progress with standardization’;
(b) paragraph 3 shall be replaced by the following:
‘3. The amendments necessary to adapt Annexes II and III to new
technical developments and to changes in market demand,
including the possible deletion of certain types of leased lines from
the Annexes, shall be adopted by the Commission under the
procedure provided for in Article 10 of Directive 90/387/EEC,
taking into account the state of development of national networks’;
Article 8 (2) shall be replaced by the following:
‘2. The national regulatory authority shall ensure that the organizations
notified in accordance with Article 11 (1) (a) adhere to the principle of
non-discrimination when providing leased lines. Those organizations
shall apply similar conditions in similar circumstances to organizations
providing similar services, and shall provide leased lines to others under
the same conditions and of the same quality as they provide for their own
services, or those of their subsidiaries or partners, where applicable’;
Article 9 shall be deleted;
(a) paragraph | (a) shall be replaced by the following:
‘(a) tariffs for leased lines shall be independent of the type of application
which the users of the leased lines implement, without prejudice to
the principle of non-discrimination set out in Article 8 (2);’
97/51/EC 254
(b) paragraph 2 (b) (iii) shall be replaced by the following:

‘(iii) when neither direct nor indirect measures of cost allocation
can be found, the cost category shall be allocated on the basis of a
general allocator computed by using the ratio of all expenses
directly assigned or allocated to leased lines, on the one hand, to
those allocated to other services, on the other hand;
(c) the following paragraph shall be added:
‘4. The national regulatory authority shall not apply the
requirements of paragraph | where an organization does not have
significant market power in respect of a specific leased-lines offering
in a specific geographical area.
The national regulatory authority may decide not to apply the
requirements of paragraph | in a specific geographical area where
it is satisfied that there is effective competition in the relevant
leased-lines market as evidenced by tariffs that already comply with
those requirements’;
i Article 11 shall be amended as follows:
(a) paragraph | shall be replaced by the following:

‘1. Member States shail notify the Commission of their national
regulatory authority or authorities responsible for carrying out the
tasks specified in this Directive.
They shall promptly notify the Commission of any changes in their
national regulatory authorities’;
(b) the following paragraph shall be inserted:
‘la. National regulatory authorities shall notify the Commission of
the names of those organizations providing leased lines subject to
requirements pursuant to this Directive. That notification shall,
where appropriate, include the types of leased lines that each
organization is required to provide in each geographical area in
order to comply with Article 1 and shall include any cases where,
pursuant to Article 10 (4), Article 10 (1) is not applied’;
(c) the second subparagraph of paragraph 2 shall be replaced by the
following:
‘The national regulatory authority shall keep available and submit
to the Commission on request the data on all cases in which access
to or use of leased lines has been restricted, as well as details of the
measures taken, including the reasons why they were taken’;
12: Article 14 shall be replaced by the following:
‘Article 14
Report
supplied by the Member States to the Commission and to the Open Network
Provision Committee. The report shall include an assessment of the need for
continuation of this Directive, taking account of developments towards a fully
competitive environment. Where necessary, the report shall examine what
provisions of this Directive should be adapted in the light of the developments
in the market, and further measures may be proposed in the report in pursuit of
the aims of this Directive’;
13. Annex I shall be amended as follows:
(a) footnote | shall be replaced by the following:
‘OJ L 109, 26. 4. 1983, p. 8. Directive as last amended by Directive
94/10/EC of the European Parliament and of the Council (OJ L
100, 19. 4. 1994, p. 30)’;
(b) in Section D, points 1, 2, 3, 5 and 6 shall be deleted;
(c) Section E shall be replaced by the following:
‘E. Conditions for the attachment of terminal equipment

The information on the attachment conditions must include a
complete overview of the requirements with which terminal equip-
ment to be attached to the relevant leased line must comply in
accordance with Directive 91/263/EEC or 93/97/EEC’;;
14. Annex II to this Directive shall be added as Annex III.
Article 3
Transposition
1. The Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive no
later than 31 December 1997. They shall immediately inform the
Commission thereof.
When the Member States adopt these provisions, they shall contain a
the occasion of their official publication. The methods of making such
2. The Member States shall communicate to the Commission the texts of
the main provisions of national law which they adopt in the field covered
by this Directive.
97/SL/EC 256
Article 4
Entry into force
Article 5
Addressees
Done at Brussels, 6 October 1997.

The President
J. M. GIL-ROBLES
For the Council

The President
J. POOS
(1) OJ C 62, 1. 3. 1996, p. 3 and OJ C 291, 4.10. 1996, p. 18.

(2) OJ C 204, 15. 7. 1996, p. 14.
(3) Opinion of the European Parliament of 22 May 1996 (OJ C 166, 10. 6. 1996, p. 87), Council
common position of 12 September 1996 (OJ C 315, 24. 10. 1996, p. 41) and Decision of the
European Parliament of 11 December 1996 (OJ C 20, 20. 1. 1997, p. 55). Decision of the
European Parliament of 16 July 1997. Council Decision of 22 July 1997.
(4) OJL 192, 24. 7. 1990, p. 1.
(5) OJL 165, 19. 6. 1992, p. 27. Directive as amended by Commission Decision 94/439/EC (OJ L
181, 15. 7. 1994, p. 40).
(6) OJ € 21356. 8.19935 p: 1.
(7) OJ C379, 31. 12. 1994, p. 4.
(S)) FOMC 1505 3ikS 1993s paso:
(9) OJ C151, 19. 6. 1995, p. 479.
(LOW OFC 2585 35 LON T99S.pn le
(ily OF € 205,25. 7, 1994) p. 551.
(12) OJ C 48, 16. 2. 1994, p. 1.
(13) OJ C 102, 4. 4. 1996, p. 1.
(14) OJ L 74, 22. 3. 1996, p. 13.
(15) OJ L 128, 23. 5. 1991, p. 1. Directive as last amended by Directive 93/68/EEC (OJ L 220, 30.
S199 Shao:
(16) OJ L 290, 24. 11. 1993, p. 1.
ANNEX I
‘Annex reference framework for the application of ONP conditions
The application of open network provision conditions as defined in Article 2

(8) should be in accordance with the following reference framework, taking
into account the relevant rules of the Treaty:
1. Harmonized technical interfaces and/or network functions

When open network provision conditions are drawn up the following scheme
should be taken into account for the definition of specifications for technical
interfaces and/or network functions:
~ for existing services and networks, existing interface specifications should
be adopted,
- for entirely new services or the improvement of existing services, existing
interface specifications should also be adopted, as far as feasible. When
existing interfaces are not suitable, enhancements and/or new interface
specifications will have to be specified,
- for networks that are still to be introduced but for which the standardiza-
tion programme has already commenced, open network provision
requirements falling within the terms of Article 3 should be taken into
account when new interface and network functions specifications are
developed.
Open network provision proposals must, whenever possible, be in line with the
ongoing work in the European standardization bodies, in particular the ETSI,
and must also take into account work in international standardization
organizations, such as the ITU-T.
2. Harmonized supply and usage conditions

Supply and usage conditions identify conditions of access and of provision of
services, as far as required.
(a) supply conditions concern conditions under which a service is offered to
users. They may include:
- typical delivery period,
- typical repair time,
- quality of service, in particular availability and quality of transmis-
sion,
- maintenance and network management;
(b) usage conditions concern conditions which apply to users, such as:
— conditions for network access,
= conditions for shared use,
— conditions regarding protection of personal data and confidenti-
ality of communications, where required.
3. Harmonized tariff principles

Tariff principles must be consistent with the principles started in Article 3 (1).
Those principles imply, in particular, that:

_ tariffs must be based on objective criteria and, until such time as
competition becomes effective in keeping down prices for users, must in
principle be cost oriented, on the understanding that the fixing of the
97/S51/EC 258
actual tariff level will continue to be the province of national legislation

and is not the subject of open network provisions conditions. Where an
organization no longer has significant market power in the relevant
market, the requirement for cost orientation may be set aside by the
competent national regulatory authority. One of the aims should be the
definition of efficient tariff principles throughout the Community while
ensuring a general service for all,
= tariffs must be transparent and must be properly published,
- in order to leave users a choice between the individual service elements
and where technology so permits, tariffs must be sufficiently unbundled in
accordance with the competition rules of the Treaty. In particular,
additional features introduced to provide certain specific extra services
must, as a general rule, be charged independently of the inclusive features
and transportation as such,
~ tariffs must be non-discriminatory and guarantee equality of treatment,
except for restrictions which are compatible with Community law.
Any charge for access to network resources or services must comply with the
principles set out above and with the competition rules of the Treaty and must
also take into account the principle of fair sharing in the global cost of the
resources used, the need for a reasonable level of return on investment and,
where appropriate, the financing of universal service in accordance with the
interconnection Directive (*).
There may be different tariffs, in particular to take account of excess traffic
during peak periods and lack of traffic during off-peak periods, provided that
the tariff differentials are commercially justifiable and do not conflict with the
above principles.
4. Harmonized approach to numbering/addressing/naming
Numbering/addressing and in some instances naming provide for the selection

of the destination or destinations, or for the selection ofa service, of a service
provider or a network operator.
Adherence to a harmonized approach for numbering/addressing and, where

applicable, naming is therefore essential to guarantee Europe-wide end-to-end
interconnection of users and the interoperability of services. Furthermore, the
allocation of numbers/addresses/names should be fair, proportionate and
consistent with the requirements for equal access.
To achieve that, it is necessary:
- to ensure the provision, according to harmonized principles, of adequate
ranges of numbers and addresses, prefixes and short codes and, where
applicable, of adequate naming, for all public telecommunications
services,
- to ensure the coordination of national positions in international organi-
zations and fora where decisions are taken on numbering/addressing/

naming, taking into account possible future developments in numbering/
addressing/naming at European level,
to ensure that the relevant national telecommunications numbering/
addressing/naming plans are under the supervision of the national
regulatory authority, in order to guarantee independence from organiza-
tions providing public telecommunications networks or publicly available
telecommunications services,
to ensure the effective implementation of number portability in order to
remove any obstacles for users in choosing their suppliers,
to ensure that the procedures for allocating individual numbers/ad-
dresses/names, prefixes and short codes and/or addressing/numbering
ranges are transparent, equitable and timely and that the allocation is
carried out in an objective, transparent and non-discriminatory manner,
taking into account the principle of proportionality,
to give national regulatory authorities the possibility of laying down
conditions for the use in numbering/addressing plans of certain prefixes
or certain short codes, in particular where these are used for services of
general public interest (e.g. directory services or emergency services), or
to ensure equal access.
5. Access to frequencies
Member States must ensure that frequencies are made available for telecom-
munications services in accordance with Community law. Access to frequen-
cies granted by means of licences or other authorizations must comply with the
Council resolution of 19 November 1992 on the implementation in the
Community of the European Radiocommunications Committee Decisions
(*) Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on
interconnection in telecommunications with regard to ensuring universal service and inter-
operability through application of the principles of open network provision (ONP) (OJ L 199,
26. 7. 1997, p32).
(**) OJ C318, 4. 12. 1992, p. 1’
ANNEX II
‘ANNEX III definition of leased lines the provision of which is to be
encouraged in accordance with Article 7 (2) (a)
Leased line type

Technical characteristics
Interface presentation specifications
Connection characteristics and performance specifications
34 368 kbit/s digital structured
97/51/EC 260
ETS 300 686 (*)

ETS 300 687 (*)
34 368 kbit/s digital unstructured
ETS 300 686 (*)
ETS 300 687 (*)
139 264 kbit/s digital structured
ETS 300 686 (*)
ETS 300 688 (*)
139 264 kbit/s digital unstructured
ETS 300 686 (*)
ETS 300 688 (*)
155 Mbit/s digital (STM-1) (**)
based on ITU-T G.708
based on ITU-T G.708
(*) These standards are still under development in ETSI.

(**) ETSI has been requested to carry out further work on standards for SDH VC-based leased
digital bandwidth..9’
Commission statement
The Commission states that, in verifying the full and timely transposition of
Community telecommunications Directives into national law, it will take
particular care to ensure that the arrangements put in place by the Member
States in relation to the costing and financing of universal service do not limit
access to the relevant markets.
COUNCIL DECISION OF 28 NOVEMBER 1997 CONCERNING THE CONCLUSION ON
BEHALF OF THE EUROPEAN COMMUNITY, AS REGARDS MATTERS WITHIN ITS
COMPETENCE, OF THE RESULTS OF THE WTO NEGOTIATIONS ON BASIC
TELECOMMUNICATIONS SERVICES (97/838/EC)

particular Articles 57, 66, 90, 99, 100, 100a and 113, in conjunction with
Article 228 (2) and the first subparagraph of Article 228 (3) thereof,
Having regard to the opinion of the European Parliament [2],

Whereas the Marrakesh Agreement establishing the World Trade Organization
and its related agreements, the Ministerial Decisions and Declarations,
including the Ministerial Decision on Negotiations on Basic Telecommunica-
tions, as well as the Annex on Telecommunications and the Annex on
Negotiations on Basic Telecommunications were approved by Council Deci-
sion 94/800/EC of 22 December 1994 [3];
Whereas the overall commitments in basic telecommunications services
negotiated by the Commission, on behalf of the European Community and its
Member States, constitutes a satisfactory and balanced outcome;
Whereas on 30 April 1996 the Council authorized the Commission to approve,
on behalf of the European Community and its Member States, the Decision of
the Negotiating Group on Basic Telecommunications and the WTO Council
for Trade in Services adopting the Fourth Protocol to the General Agreement
on Trade in Services and the Decision of the Council for Trade in Services on
Commitments in Basic Telecommunications;
Whereas on 14 February 1997 the Council authorized the Commission to
submit to the WTO the final schedule of commitments on behalf of the
European Community and its Member States;
Whereas the competence of the Community to conclude international agree-
ments does not derive only from explicit conferral by the Treaty but may also
derive from other provisions of the Treaty and from acts adopted pursuant to
those provisions by Community institutions;
Whereas where Community rules have been adopted in order to achieve the
aims of the Treaty, Member States may not, outside the framework of the
common institutions, enter into commitments liable to affect those rules or
alter their scope;
Whereas some commitments on basic telecommunications services fall within
the competence of the Community under Article 113 of the Treaty; whereas,
furthermore, other commitments on basic telecommunications services affect
261
Community rules adopted on the basis of Articles 57, 66, 90, 99, 100 and 100a
and may therefore only be entered into by the Community alone;
Whereas the use of Article 100 of the Treaty as a legal base for this Decision is
justified also by the fact that the aforementioned commitments on basic
telecommunications services are likely to affect Council Directive 90/434/
EEC of 23 July 1990 on the common system of taxation applicable to mergers,
divisions, transfers of assets and exchanges of shares concerning companies of
different Member States [4] and Council Directive 90/435/EEC of 23 July 1990
on the common system of taxation applicable in the case of parent companies
and subsidiaries of different Member States [5], which are based on Article 100
of the Treaty;
Whereas, by their nature, the Agreement establishing the World Trade Organi-
zation and the Protocols to the General Agreement on Trade in Services, are not
susceptible to being directly invoked in Community or Member States courts,
HAS DECIDED AS FOLLOWS:
Sole Article
1. The Fourth Protocol to the General Agreement on Trade in Services

concerning basic telecommunications services is hereby approved on
behalf of the European Community with regard to that portion of it
which falls within the competence of the Community.
2. The text of the Fourth Protocol is attached to this Decision, as are also
the following:
- the schedule of specific commitments of the Community and the
Member States, which is part of the overall package of commit-
ments reached at the WTO on 15 February 1997,
- the decision of the Council for Trade in Services on commitments in
basic telecommunications, and
- the report of 15 February 1997 by the Group on Basic Telecommu-
nications to the Council for Trade in Services.
3. The President of the Council is hereby authorized to designate the
person(s) empowered to sign the Fourth Protocol to the General Agree-
ment on Trade in Services in order to bind the Community with regard to
that portion of the Protocol falling within its competence.
Done at Brussels, 28 November 1997.

For the Council
The President
G. WOHLFART
(1) OJ C 267, 3. 9. 1997, p. 80.
(2) OJ C 339, 10. 11. 1997.
(3) OJ L 336, 23. 12. 1994, p. 1.
(4) OJ L 225, 20. 8. 1990, p. 1.
(5) OJ L 225, 20. 8. 1990, p. 6.
97/838/EC 263
ANNEX (1)
Fourth Protocol to the General Agreement on Trade in Services
Members of the World Trade Organization (hereinafter referred to as the

“WTO’) whose Schedules of Specific Commitments and Lists of Exemptions
from Article II of the General Agreement on Trade in Services concerning
basic telecommunications are annexed to this Protocol (hereinafter referred to
as ‘Members concerned’),
Having carried out negotiations under the terms of the Ministerial Decision on
Negotiations on Basic Telecommunications adopted at Marrakesh on 15 April
1994,
Having regard to the Annex on Negotiations on Basic Telecommunications,
Agree as follows:
1. Upon the entry into force of this Protocol, a schedule of specific
commitments and a list of exemptions from Article II concerning basic
telecommunications annexed to this Protocol relating to a Member shall,
in accordance with the terms specified therein, supplement or modify the
schedule of specific commitments and the list of Article II exemptions of
that Member.
2. This Protocol shall be open for acceptance, by signature or otherwise, by
the Members concerned until 30 November 1997.
3. | The Protocol shall enter into force on | January 1998 provided it has been
accepted by all Members concerned. If by | December 1997 the Protocol
has not been accepted by all Members concerned, those Members which
have accepted it by that date may decide, prior to 1 January 1998, on its
entry into force.
4. This Protocol shall be deposited with the Director-General of the WTO.
The Director-General of the WTO shall promptly furnish to each
Member of the WTO a certified copy of this Protocol and notifications
of acceptances thereof.
5. | This Protocol shall be registered in accordance with the provisions of
Article 102 of the Charter of the United Nations.
Done at Geneva this fifteenth day of April one thousand nine hundred and
ninety-seven, in a single copy in the English, French and Spanish languages,
each text being authentic, except as otherwise provided for in respect of the
Schedules annexed hereto.
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269
ADDITIONAL COMMITMENT BY THE EUROPEAN

COMMUNITIES AND THEIR MEMBER STATES
Scope
The following are definitions and principles on the regulatory framework for
the basic telecommunications services underpinning the market access com-
mitments by the European Communities and their Member States.
Definitions
Users mean service consumer and service suppliers.
Essential facilities mean facilities of a public telecommunications transport
network and service that
(a) are exclusively or predominantly provided by a single or limited number
of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to
provide a service.
A major supplier is a supplier which has the ability to materially affect the
terms of participation (having regard to price and supply) in the relevant
market for basic telecommunications services as a result of:
(a) control over essential facilities; or

(b) use of its position in the market.
1. COMPETITIVE SAFEGUARDS
1.1. Prevention of anti-competitive practices in telecommunications
Appropriate measures shall be maintained for the purpose of preventing
suppliers who, alone or together, are a major supplier from engaging in or
continuing anti-competitive practices.
1.2. Safeguards
The anti-competitive practices referred to above shall include in particu-
lar:
(a) engaging in anti-competitive cross-subsidization;
(b) using information obtained from competitors with anti-competitive
results; and
(c) not making available to other services suppliers on a timely basis
technical information about essential facilities and commercially
relevant information which are necessary for them to provide
services.
2. INTERCONNECTION
2.1. This section applies to linking with suppliers providing public telecom-
munications transport networks or services in order to allow the users of
one supplier to communicate with users of another supplier and to access
services provided by another supplier.
97/838/EC 271
2.2. Interconnection to be ensured

Within the limits of permitted market access, interconnection with a
major supplier will be ensured at any technically feasible point in the
network. Such interconnection is provided (2):
(a) under non-discriminatory terms, conditions (including technical
standards and specifications) and rates and of a quality no less
favourable than that provided for its own like services or for like
services of non-affiliated service suppliers or for its subsidiaries or
other affiliates (3);
(b) in a timely fashion, on terms, conditions (including technical
standards and specifications) and cost-oriented rates that are
transparent, reasonable, having regard to economic feasibility, and
sufficiently unbundled so that the supplier need not pay for network
components or facilities that it does not require for the service to be
provided; and
(c) upon request, at points in addition to the network termination
points offered to the majority of users, subject to charges that reflect
the cost construction of necessary additional facilities.
2.3. Public availability of the procedures for interconnection negotiations
The procedures applicable for interconnection to a major supplier will be
made publicly available.
2.4. Transparency of interconnection arrangements
It is ensured that a major supplier will make publicly available either its
interconnection agreements or a reference interconnection offer.
2.5. Interconnection: dispute settlement
A service supplier requesting interconnection with a major supplier will
have recourse, either:
(a) at any time; or
(b) after a reasonable period of time which has been made publicly
known to an independent domestic body, which may be a regula-
tory body as referred to in paragraph 5 below, to resolve disputes
regarding appropriate terms, conditions and rates for interconnec-
tion within a reasonable period of time, to the extent that these have
not been established previously.
3. UNIVERSAL SERVICE
Any Member has the right to define the kind of universal service obligation it
wishes to maintain. Such obligations will not be regarded as anti-competitive
per se, provided they are administered in a transparent, non-discriminatory
and competitively neutral manner and are not more burdensome than
necessary for the kind of universal service defined by the Member.
4. PUBLIC AVAILABILITY OF LICENSING CRITERIA

Where a licence is required, the following will be made publicly available:
(a) all the licensing criteria and the period of time normally required to reach
a decision concerning an application for a licence and
(b) the terms and conditions of individual licences.
The reasons for the denial of a licence will be made known to the applicant
upon request.
5. INDEPENDENT REGULATORS
The regulatory body is separate from, and not accountable to, any supplier of
basic telecommunications services. The decisions of and the procedures used
by regulators shall be impartial with respect to all market participants.
6. ALLOCATION AND USE OF SCARCE RESOURCES

Any procedures for the allocation and use of scarce resources, including
frequencies, numbers and rights of way, will be carried out in an objective,
timely, transparent and non-discriminatory manner. The current state of
allocated frequency bands will be made publicly available, but detailed
identification of frequencies allocated for specific government uses is not
required.
DECISION ON COMMITMENTS IN BASIC

TELECOMMUNICATIONS
THE COUNCIL FOR TRADE IN SERVICES,
HAVING REGARD to the Annex on negotiations on basic telecommunica-
tions,
HAVING REGARD to the results of the negotiations conducted under the
terms of the decision on negotiations on basic telecommunications adopted at
Marrakesh on 15 April 1994,
ACTING upon the final report of the negotiating group on basic telecommu-
nications,
DECIDES as follows:
1. To adopt the text of the ‘Fourth Protocol to the General Agreement on

Trade in Services’ (hereinafter referred to as the Protocol) and to take
note of the schedules of commitments and lists of exemptions from
Article II listed in the attachment to the final report of the negotiating
group on basic telecommunications.
2. Commencing immediately and continuing until the date of entry into
force of the Protocol Members concerned shall, to the fullest extent
consistent with their existing legislation and regulations, not take
measures which would be inconsistent with their undertakings resulting
from these negotiations.
97/838/EC 273
During the period from 15 January to 15 February 1997, a Member

which has a schedule of commitments annexed to the Protocol, may
supplement or modify such schedule or its list of Article II exemptions.
Any such Member which has not annexed to the Protocol a list of Article
II exemptions may submit such a list during the same period.
A Group on basic telecommunications reporting to the Council for Trade
in Services shall conduct consultations on the implementation of para-
graph 3 above commencing its work no later than 90 days from the
adoption of the decision.
The Council for Trade in Services shall monitor the acceptance of the
Protocol by Members concerned and shall, at the request of a Member,
examine any concerns raised regarding the application of paragraph 2
above.
Members of the World Trade Organization which have not annexed to
the Protocol schedules of commitments or lists of exemptions from
Article II may submit, for approval by the Council, schedules of
commitments and lists of exemptions from Article II relating to basic
telecommunications prior to | January 1998.
REPORT OF THE GROUP ON BASIC TELECOMMUNICATIONS

ie This report is made in accordance with paragraph 4 of the Decision on
Commitments in Basic Telecommunications, adopted by the Council for
Trade in Services on 30 April 1996 (S/L/19). In paragraph 1 of this
Decision, the Council also adopted the text of the Fourth Protocol to the
General Agreement on Trade in Services and took note of the schedules
of commitments and lists of exemptions from Article II listed in the
attachment to the final report of the negotiating group on basic tele-
communications (S/NGBT/ 18).
The Decision on commitments on basic telecommunications established
the Group on Basic telecommunications to ‘conduct consultations on the
implementation of paragraph 3 of the Decision’. Paragraph 3 states that
‘during the period from 15 January to 15 February 1997, a Member
which has a schedule of commitments annexed to the Protocol, may
supplement or modify such schedule or its list of Article II exemptions’
and that ‘any such Member which has not annexed to the Protocol a list
of Article II exemptions may submit such a list during the same period’.
At the Group’s first meeting in July 1996, participants suggested that the
principal issues before the GBT included the desirability of improving the
quantity and quality of schedules offered, and the need to address certain
issues which had been left unresolved in April. Subsequently, the Group
sponsored frequent rounds of bilateral negotiations on offers and
regularly included discussion of outstanding issues in its meetings. In
November participants began submitting revised draft offers of commit-
ments on basic telecommunications for consideration. The Group’s
Report to the Council on Trade in Services (S/GBT/2), which formed
part of the Report to the Singapore Ministerial Conference, recom-

mended that Ministers ‘stress their commitment to bring the negotiations
on basic telecommunications to a successful conclusion by 15 February
1997, urge all WTO Members to strive for significant, balanced and non-
discriminatory liberalization commitments on basic telecommunications
by that date and recognize the importance of resolving the principal
issues before the GBT’. The Declaration adopted by Ministers in
Singapore (WT/MIN(96)/DEC) contained a commitment to ‘achieve a
successful conclusion to the negotiations on basic telecommunications in
February 1997’. Ministers also stated ‘We are determined to obtain a
progressively higher level of liberalization in services on a mutually
advantageous basis with appropriate flexibility for individual developing
country members, as envisaged in the agreement, in the continuing
negotiations and those scheduled to begin.no later than 1 January 2000.
In this context, we look forward to full MFN agreements based on
improved market access commitments and national treatment’.
4. In its discussions on outstanding issues, the Group considered the
following matters: ways to ensure accurate scheduling of commitments —
particularly with respect to supply of services over satellites and to the
management of radio spectrum; potential anti-competitive distortion of
trade in international services; the status of intergovernmental satellite
organizations in relation to GATS provisions; and the extent to which
basic telecommunications commitments include transport of video and/
or broadcast signals within their scope.
5. The Chairman issued notes reflecting his understanding of the position
reached in discussion of the scheduling of commitments and management
of radio spectrum. The first such note set out a number of assumptions
applicable to the scheduling of commitments and was intended to assist in
ensuring the transparency of commitments (S/GBT/W/2/Rev. 1 of 16
January 1997). The second addressed the allocation of radio spectrum,
suggesting that the inclusion of references to the availability of spectrum in
schedules was unnecessary and that such references should be deleted (S/
GBT/W/3 of 3 February 1997). These notes are attached to this Report.
6. By 15 February 1997 the total number of schedules submitted had
reached 55 (counting as one the offer of the European Communities and
their Member States). Nine governments had submitted lists of Article II
Exemptions.
7. The Group noted that five countries had taken Article II exemptions in
respect of the application of differential accounting rates to services and
service suppliers of other Members. In the light of the fact that the
accounting rate system established under the International Telecommu-
nications Regulations is the usual method of terminating international
traffic and by its nature involves differential rates, and in order to avoid
the submission of further such exemptions, it is the understanding of the
Group that:
D7F/838/EC 275
~ the application of such accounting rates would not give rise to

action by Members under dispute settlement under the WTO, and
— that this understanding will be reviewed not later than the com-
mencement of the further Round of negotiations on services
commitments due to begin not later than 1 January 2000.
The Group also recalled paragraph 6 of the Decision of 30 April 1996,
which stated that Members of the World Trade Organization which have
not annexed to the Protocol schedules of commitments or lists of
exemptions from Article II may submit, for approval by the Council,
schedules of commitments and lists of exemptions from Article II relating
to basic telecommunications prior to 1 January 1998.
At its meeting of 15 February 1997, the Group adopted this report and
the attached list of the Schedules of Commitments and Lists of Article I
Exemptions, which, in accordance with paragraph 3 of the Decision on
commitments in basic telecommunications, will be attached to the Fourth
Protocol to the General Agreement on Trade in Services in replacement
of those attached on 30 April 1996.
NOTE BY THE CHAIRMAN

Revision
It has been suggested by a number of delegations that it might be helpful to
produce a brief and simple note on assumptions applicable to the scheduling of
commitments in basic telecoms. The purpose of the attached note 1s to assist
delegations in ensuring the transparency of their commitments and to promote
a better understanding of the meaning of commitments. This note is not
intended to have or acquire any binding legal status.
NOTES FOR SCHEDULING BASIC TELECOM SERVICES

COMMITMENTS
i" Unless otherwise noted in the sector column, any basic telecom service
listed in the sector column:
(a) encompasses local, long distance and international services for
public and non-public use;
(b) may be provided on a facilities-basis or by resale; and
(c) may be provided through any means of technology (e.g., cable (4),
wireless, satellites).
Subsector (g) — private leased circuit services — involves the ability of
service suppliers to sell or lease any type of network capacity for the
supply of services listed in any other basic telecom service subsector
unless otherwise noted in the sector column. This would include capacity
via cable, satellite and wireless network.
In view of points 1 and 2 above, it should not be necessary to list cellular
or mobile services as a separate subsector. However, a number of
Members have done so, and a number of offers have commitments only in
these subsectors. Therefore, in order to avoid extensive changes in
schedules, it would seem appropriate for Members to maintain separate
entries for these subsectors.
CHAIRMAN’S NOTE
Market access limitations on spectrum availability
Many Members have entries in the market access column of their schedules
indicating that commitments are ‘subject to availability of spectrum/frequency’
or similar wording. In light of the physical nature of spectrum and the
constraints inherent in its use, it is understandable that Members may have
sought to rely on these words to adequately protect legitimate spectrum
management policies. There is, however, doubt that words such as ‘subject to
availability of spectrum/frequency’ as listed in the market access column of
many Members’ schedules achieve that objective.
Spectrum/frequency management is not, per se, a measure which needs to be
listed under Article XVI. Furthermore under the GATS each Member has the
right to exercise spectrum/frequency management, which may affect the
number of service suppliers, provided that this is done in accordance with
Article VI and other relevant provisions of the GATS. This includes the ability
to allocate frequency bands taking into account existing and future needs. Also,
Members which have made additional commitment in line with the reference
paper on regulatory principles are bound by its paragraph 6.
Therefore, words such as ‘subject to availability of spectrum/frequency’ are

unnecessary and should be deleted from Members’ schedules.
(1) The Annex is authentic in English, French and Spanish.

(2) Suppliers of services or networks not generally available to the public,
such as closed user groups, have guaranteed rights to connect with the
public telecommunications transport network or services on terms,
conditions and rates which are non-discriminatory, transparent and
cost-oriented. Such terms, conditions and rates may, however, vary from
the terms, conditions and rates applicable to interconnection between
public telecommunications networks or services.
(3) Different terms, conditions and rates may be set in the Community for
operators in different market segments, on the basis of non-discrimina-
tory and transparent national licensing provisions, where such differences
can be objectively justified because these services are not considered ‘like
services’.
(4) Including all types of cable.
26 FEBRUARY 1998 ON THE APPLICATION OF OPEN NETWORK PROVISION
(ONP) TO voICE TELEPHONY AND ON UNIVERSAL SERVICE FOR
TELECOMMUNICATIONS IN A COMPETITIVE ENVIRONMENT (98/ 10/EC)
Official Journal L 101, 01/04/1998 P. 0024 — 0047

EUROPEAN UNION,
particular Article 100a thereof,Having regard to the proposal from the
Commission [1],
Having regard to the Opinion of the Economic and Social Committee [2],
on 14 January 1998,
(1) Whereas from | January 1998, with transition periods for certain
Member States, the provision of telecommunications services and infrastruc-
ture in the Community will be liberalised; whereas the Council [4], the
European Parliament [5], the Economic and Social Committee [6] and the
Committee of the Regions have all recognised that liberalisation goes hand in
hand with parallel action to create a harmonised regulatory framework which
secures the delivery of universal service; whereas the concept of universal
service must evolve to keep pace with advances in technology, market
developments and changes in user demand; whereas progress has been made
in the Community towards defining the scope of universal service and laying
down rules for its costing and financing [7]; whereas the Commission has
undertaken to publish a report on the monitoring of the scope, level, quality
and affordability of the universal telephone service in the Community before 1
January 1998, and at regular intervals thereafter;
implementation of open network provision [8], provides a general framework
for the application of ONP principles in specific areas;
(3) Whereas Article 32(1) of European Parliament and Council Directive 95/
62/EC of 13 December 1995 on the application of open network provision
(ONP) to voice telephony [9] calls for the European Parliament and the Council
to decide by 1 January 1998, on the basis of a proposal submitted by the
Commission, on the revision of the Directive to adapt it to the requirements of
market liberalisation; whereas Directive 95/62/EC does not apply to mobile
telephony services; whereas in view of the growing demand for mobile
telephony services it is appropriate that certain provisions of this Directive
should apply to mobile telephony services; whereas this Directive does not
Tt
prevent Member States, in conformity with Community law, from extending

the application of provisions of the Directive to mobile networks and/or
services even if they are not explicitly mentioned in its scope; whereas, in
moving to a competitive market, there are certain obligations which should
apply to all organisations providing telephone services over fixed networks and
whereas there are others which should apply only to organisations enjoying
significant market power or which have been designated as a universal service
operator in accordance with Article 5; whereas full account has been taken of
the user and consumer requirements for affordability, cost control and user
facilities as expressed in the public consultation on universal service for
telecommunications; whereas, since the modifications required to Directive
95/62/EC are substantial, it is convenient for the sake of clarity to reformulate
the said Directive; whereas this Directive does not affect the timescale for
Member States’ implementation of Directive 95/62/EC, as set out in Annex
IV;
(4) Whereas a fundamental requirement of universal service is to provide
users on request with a connection to the fixed public telephone network at a
fixed location, at an affordable price; whereas there should be no constraints on
the technical means by which the connection is provided, allowing for wire or
wireless technologies; whereas fixed public telephone network infrastructure
newly installed after 1 January 1998 should be of a quality which supports, in
addition to speech, data communications at rates suitable for access to online
information services; whereas affordable price means a price which the
Member States define at national level in the light of specific national
conditions, including town and country planning aspects, after carrying out
the consultation referred to in Article 24; whereas the Commission is to
prepare reports on the evolution of tariffs throughout the Community on the
basis of the rules and criteria for ensuring affordability published at national
level and in doing so may carry out additional consultation at the European
level; whereas the affordability of telephone service is related to the informa-
tion which users receive regarding telephone usage expenses as well as the
relative cost of telephone usage compared to other services; whereas, in
relation to the provisions for affordable services for users in rural or high cost
areas, Member States may make exceptions for holiday homes;
(5) Whereas tariff rebalancing is leading to a move away from non-cost

oriented tariffs; whereas, until competition is effectively established, safeguards
may be necessary to ensure that price increases in remote or rural areas are not
used to compensate for losses in revenue resulting from price decreases
elsewhere; whereas tariff rebalancing is an essential feature of a competitive
market; whereas price caps or geographical averaging or similar schemes may
be used to ensure that the necessary rebalancing does not unduly affect users
and does not endanger the affordability of telephone services;
98/LOSEC 279
(6) Whereas the importance of the fixed public telephone network and service
is such that the latter should be available to anyone reasonably requesting it;
whereas, in accordance with the principle of subsidiarity, it is for Member
States to decide on the basis of objective criteria which organisations have the
responsibility for providing the universal service for telecommunications as
defined in this Directive, taking into account the ability and, where appro-
priate, the willingness of organisations to provide all or part of it; whereas
corresponding obligations could be included as conditions in authorisations to
provide publicly available telephone services; whereas, in accordance with
Article 5(1) of Directive 97/33/EC of the European Parliament and of the
Council of 30 June 1997 on interconnection in telecommunications with regard
to ensuring universal service and interoperability through application of the
principles of Open Network Provision (ONP) [10], Member States may
establish mechanisms for sharing the net cost of the universal service obliga-
tions with other organisations operating public telecommunications networks
and/or publicly available voice telephony services; whereas public telecommu-
nications networks include both public fixed networks and public mobile
networks; whereas national regulatory authorities should satisfy themselves
that those organisations benefiting from universal service funding provide
sufficient level of detail of the specific elements requiring such funding in order
to justify their request; whereas, in accordance with Community law, Member
States’ schemes for the costing and financing of universal service will be
communicated to the Commission for verification of compatibility with the
Treaty;
(7) Whereas provision of directory services is a competitive activity; whereas
Directive 95/46/EC of the European Parliament and of the Council of 24
October 1995 on the protection of individuals with regard to the processing of
personal data and on the free movement of such data regulates the processing
of personal data [11]; whereas Directive 97/66/EC of the European Parliament
and of the Council of 15 December 1997 concerning the processing of personal
data and the protection of privacy in the telecommunications sector [12], in
particular in the Integrated Services Digital Network (ISDN) and in digital
mobile networks, will give the subscriber the right to be omitted, or to have
certain data omitted, from a printed or electronic directory at his or her
request; whereas users and consumers desire comprehensive directories and
directory enquiry service covering all listed telephone subscribers and their
numbers (including fixed, mobile and personal telephone numbers); whereas
the situation whereby certain telephone directories and directory services are
provided in a manner which is perceived to be free of charge to the user is not
affected by this Directive;
(8) Whereas Member States shall, where appropriate, take suitable measures
in order to guarantee access to and affordability of all fixed public telephone
services for disabled users and users with special social needs; whereas specific
measures for disabled users could include, as appropriate, making available
public text telephones or equivalent measures for deaf or speech impaired

people, providing services such as directory enquiry services free of charge or
equivalent measures for blind or partially sighted people, and providing
itemised bills in alternative format on request for blind or partially sighted
people;
(9) Whereas Council Decision 91/396/EEC of 29 July 1991 on the introduc-

tion of a single European emergency call number [13] called for Member States
to ensure that no later than 31 December 1996 the number ‘112’ is introduced
in public telephone networks as the single European emergency call number;
whereas it is important that users are able to call emergency telephone numbers
and, in particular, the single European emergency call number ‘112’ free of
charge from any telephone, including public pay-telephones, without the use of
coins or cards;
(10) Whereas transparency of network interface specifications is a prerequi-
site for a competitive market in terminal equipment; whereas the national
regulatory authority may consult the interested parties and especially terminal
equipment suppliers and the representatives of the users and consumers on the
changes in existing network interface specifications;
(11) Whereas Directive 97/13/EC [14] provides for a common framework for
general authorisations and individual licences in the field of telecommunica-
tions services; whereas quality and price are key factors in a competitive
market and whereas national regulatory authorities should be able to monitor
achieved quality of service for organisations with significant market power or
which have been designated in accordance with Article 5; whereas national
regulatory authorities should also be able to monitor the achieved quality of
services by other organisations providing fixed public telephone networks and/
or fixed public telephone services where the latter have been operating for more
than 18 months and where the national regulatory authority deems it
necessary; whereas, in relation to the quality of service attained by both types
of organisations, national regulatory authorities shall be able to take appro-
priate corrective measures where they deem it necessary; whereas the Commis-
sion will report by 1 January 1998, and at regular intervals thereafter, on the
quality, level and scope of universal service in the European Community, as
indicated in its Communication of 13 March 1996 on Universal Service for
Telecommunications in the perspective of a fully liberalised environment;
whereas these powers are without prejudice to the application of competition
law by national and Community authorities;
(12) Whereas conditions on access to and use of fixed public telephone

networks or publicly available telephone services may be imposed exception-
ally by a Member State on the grounds of essential requirements; whereas
national regulatory authorities should have procedures to address at least those
situations where an organisation providing voice telephony services which has
significant market power or has been designated in accordance with Article 5
98/10/EC 281
and has significant market power interrupts, reduces or varies the availability
of services to organisations providing telecommunications networks and/or
services; whereas, except in cases of persistent late payment or non-payment of
bills, consumers should be protected from immediate disconnection from the
network on the grounds of an unpaid bill and, particularly in the case of
disputes over high bills for premium rate services, should continue to have
access to essential telephone services pending resolution of the dispute;
whereas in some Member States such access may continue to be provided only
if the subscriber continues to pay line rental charges; whereas the provisions of
this Directive do not prevent a Member State from taking measures justified on
grounds set out in Articles 36 and 56 of the Treaty, in particular on grounds of
public security, public policy and public morality;
(13) Whereas tone dialling and itemised billing facilities are normally
available on modern telephone exchanges and can therefore be provided
inexpensively once old exchanges are modernised or new exchanges installed;
whereas tone dialling is increasingly being used for interaction with special
services and facilities, including value added services, and whereas lack of this
facility can prevent users from accessing certain services; whereas itemised
billing and selective call barring are valuable means for users to control and
monitor their usage of telephone networks; whereas Directive 97/66/EC on the
processing of personal data and the protection of privacy in the telecommuni-
cations sector safeguards the privacy of users with regard to itemised billing,
gives them the means to protect their right to privacy when calling line
identification is implemented and safeguards them against nuisance which
may be caused by call forwarding; whereas ‘number portability’ is a facility
whereby end users who so request can retain their number(s) on the fixed public
telephone network at a specific location independently of the organisation
providing service; whereas harmonised technical interface standards have been
drawn up by the European standardisation organisations for access to the
Integrated Services Digital Network (ISDN) at what is known as the S/T
reference point;
(14) Whereas price transparency should ensure that residential subscribers do
not subsidise discounts to business customers; whereas certain obligations
concerning tariffs and cost accounting systems will no longer be appropriate
once competition is introduced and whereas others can be relaxed by the
competent national regulatory authority as soon as competition achieves the
desired objectives; whereas in all cases the non-discrimination requirements of
the competition rules of Community law apply; whereas the requirement for
unbundling does not prevent facilities from being combined in a tariff package,
provided this practice is not used to unduly restrict the users’ freedom of
choosing their suppliers for the different services they may wish to use;
(15) Whereas issues related to the level of affordability, quality of service and
future scope of the universal service should be the subject of consultation at
national level with all interested parties; whereas this requires that adequate
information on the level, quality and affordability of universal service is
available; whereas disabled users should, wherever possible, receive a broadly
similar level of services compared to other users in terms of their access to or
use of telephone services;
(16) Whereas the Commission has to be able to monitor effectively the
application of this Directive and whereas European users need to know where
to find published information on telephone services in other Member States;
whereas, in accordance with Directive 97/13/EC on licensing, national
regulatory authorities shall not disclose information covered by the obligation
of professional secrecy, except where such disclosure is essential for the
purpose of fulfilling their duties;
(17) Whereas, in view of the forecast convergence of fixed and mobile
telephone services, the extent to which this Directive applies to mobile services
should be re-examined when the Directive is reviewed; whereas the review date
of 31 December 1999 will allow for a coordinated review of all the ONP
Directives in the light of experience with the liberalisation of public tele-
communications networks and voice telephony services; whereas the review
should also examine the removal of obligations no longer needed in a market
where there is effective competition;
(18) Whereas the essential goals of ensuring universal service for telecommu-
nications for all European users and of harmonising conditions for access to
and use of fixed public telephone networks and publicly available telephone
services cannot be realised satisfactorily at Member State level;
(19) Whereas a modus vivendi was concluded on 20 December 1994 between

the European Parliament, the Council and the Commission concerning the
implementing measures for acts adopted in accordance with the procedure laid
down in Article 189b of the Treaty,
CHAPTER I
SCOPE, AIM AND DEFINITIONS
Article 1
Scope and aim
1. This Directive concerns the harmonisation of conditions for open and
efficient access to and use of fixed public telephone networks and fixed
public telephone services in an environment of open and competitive
markets, in accordance with the principles of open network provision
(ONP).The aims are to ensure the availability throughout the Community
of good quality fixed public telephone services and to define the set of
services to which all users, including consumers, should have access in the
9SIOZEC i283
context of universal service in the light of specific national conditions, at

an affordable price.
2. This Directive does not apply to public mobile telephone networks and
public mobile telephone services, with the exception of Articles 6, 9(b)
and (c), 10 and 11(1).
3. This Directive replaces Directive 95/62/EC.
Article 2
Definitions
relevant to this Directive.2. For the purposes of this Directive:
(a) ‘users’ means individuals, including consumers, or organisations
(b) ‘consumer’ means any natural person who uses a publicly available
telecommunications service for purposes which are outside his or
her trade, business or profession;
(c) ‘subscriber’ shall mean any natural or legal person who or which is
party to a contract with the provider of publicly available tele-
communications services for the supply of such services;
(d) ‘public pay-telephone’ means a telephone available to the general
public, for the use of which the means of payment are coins and/or
credit/debit cards and/or pre-payment cards;
(e) ‘voice telephony service’ means a service available to the public for
the commercial provision of direct transport of real-time speech via
the public switched network or networks such that any user can use
equipment connected to a network termination point at a fixed
location to communicate with another user of equipment connected
to another termination point;
(f) ‘universal service’ means a defined minimum set of services of
specified quality which is available to all users independent of their
geographical location and, in the light of specific national condi-
tions, at an affordable price;
(g) ‘national regulatory authority’ means the body or bodies in each
Member State entrusted by that Member State with, inter alia, the
regulatory functions addressed in this Directive;
(h) ‘ONP Committee’ means the Committee created by Article 9(1) of
Directive 90/387/EEC;
(i) ‘organisation with significant market power’ means an organisation
authorised to provide fixed public telephone networks and/or voice
telephony services in a Member State which, for the purpose of this
Directive, has been designated by the national regulatory authority
in that Member State as having significant market power and
notified to the Commission.
An organisation shall be presumed to have significant market
power when it has a share of 25 % or more of the relevant market
in the geographical area in a Member State within which it is

authorised to operate.National regulatory authorities may deter-
mine that an organisation with a market share of less than 25 % in
the relevant market has significant market power. They may also
determine that an organisation with a market share of more than 25
% in the relevant market does not have significant market power. In
either case, the determination shall take into account the organisa-
tion’s ability to influence market conditions, its turnover relative to
the size of the market, its control of the means of access to end-
users, its access to financial resources and its experience in provid-
ing products and services in the market.
35 For the purposes of this Directive:
(a) The terms ‘fixed public telephone network’ and ‘public mobile
telephone network’ are described in Annex I of Directive 97/33/
EC on Interconnection.
(b) The term ‘publicly available telephone services’ includes both fixed
public telephone services and public mobile telephone services.-
Fixed public telephone services, as indicated in Annex I part I of
Directive 97/33/EC on Interconnection, may include — in addition
to voice telephony service — access to emergency ‘112’ services, the
provision of operator assistance, directory services, provision of
public pay phones, provision of service under special terms and/or
provision of special facilities for customers with disabilities or with
special social needs, as set out in this Directive, but does not include
value added services provided over the public telephone network.
CHAPTER II
PROVISION OF A DEFINED SET OF SERVICES WHICH MAY BE FUNDED IN THE
CONTEXT OF UNIVERSAL SERVICE
Article 3
Availability of services
i Member States shall ensure that the services set out in this Chapter are
made available to all users in their territory, independent of geographical
location, and, in light of specific national conditions, at an affordable
price.
Taking into account the progressive adjustment of tariffs towards costs,
Member States shall in particular maintain the affordability of the
services set out in this Chapter for users in rural or high cost areas and
for vulnerable groups of users such as the elderly, those with disabilities
or those with special social needs.
To this end, Member States shall remove obligations which prevent or
restrict the use of special or targeted tariff schemes for the provision of
the services specified in this Directive and may, in accordance with
98/10/EC 285
Community law, implement price caps or geographical averaging or

other similar schemes for some or all of the specified services until such
time as competition provides effective price control.
Schemes designed to ensure affordability shall follow the principles of
transparency and non-discrimination. Member States shall publish the
rules and criteria for ensuring affordability at the national level, taking
into account Article 24.
2. | Member States shall publish regular reports on the evolution of tariffs
which should be made available to the public. The Commission shall
publish regular reports on the evolution of tariffs throughout the
Community.
Article 4
Financing schemes
Where the services set out in this Chapter cannot be commercially provided on
the basis of conditions laid down by the Member State, Member States may set
up universal service funding schemes for the shared financing of those services,
in conformity with Community law and, in particular, with Directive 97/33/
EC on Interconnection.
National regulatory authorities shall ensure that organisations benefiting from
such a shared financing scheme make a declaration to their national regulatory
authority indicating the specific elements for which funding is requested, the
information referred to in Article 5 of Directive 97/33/EC on Interconnection
being made available to interested parties on request, in accordance with
Article 11(4).
Member States may impose additional requirements concerning the provision
of telecommunication services in accordance with existing Community law.
Such additional requirements may not have an impact on the costing of
universal service provision as laid down at Community level and may not be
financed from a mandatory contribution by market players.
Article 5
Provision of network connections and access to telephone services
1. | Member States shall ensure that all reasonable requests for connection to
the fixed public telephone network at a fixed location and access to fixed
public telephone services are met by at least one operator and may, if
necessary to this end, designate one or more operators so that the whole
of their territory is covered.
2. | The connection provided shall be capable of allowing users to make and
receive national and international calls, supporting speech, facsimile
and/or data communications.
Article 6
Directory services
de The provisions of this Article are subject to the requirements of relevant
legislation on the protection of personal data and privacy, such as
Directive 95/46/EC and Directive 97/66/EC.
i) Member States shall ensure that:
(a) subscribers have the right to have an entry in publicly available
directories and to verify and, if necessary, correct or request
removal of that entry;
(b) directories of all subscribers who have not expressed opposition to
being listed, including fixed, mobile and personal numbers, are
available to users in a form approved by the national regulatory
authority, whether printed or electronic, or both, and are updated
on a regular basis;
(c) at least one telephone directory enquiry service covering all listed
subscribers numbers is available to all users, including users of
public pay telephones;
In order to ensure provision of the services referred to in paragraph 2(b)
and 2(c), Member States shall ensure that all organisations which assign
telephone numbers to subscribers meet all reasonable requests to make
available the relevant information in an agreed format on terms which are
fair, cost oriented and non-discriminatory.
Member States shall ensure that organisations providing the service
referred to in paragraph 2(b) and 2(c) follow the principle of non-
discrimination in their treatment and presentation of information pro-
vided to them.
Article 7
Public pay telephones
L Member States shall ensure that public pay telephones are provided to
meet the reasonable needs of users in terms of both numbers and
geographical coverage.
A Member State may authorise its national regulatory authority not to
apply the requirements of this paragraph in all or part of its territory if it
is satisfied that these facilities are widely available.
Nw Member States shall ensure that it is possible to make emergency calls
from public pay telephones using the single European emergency call
number ‘112’ referred to in Decision 91/396/EEC and other national
emergency numbers, all free of charge and without having to use coins or
cards.
98/10/EC 287
Article 8
Specific measures for disabled users and users with special social needs
Member States shall, where appropriate, take specific measures to ensure equal
access to and affordability of fixed public telephone services, including
directory services for disabled users and users with special social needs.
CHAPTER III
SPECIFIC PROVISIONS CONCERNING ORGANISATIONS PROVIDING FIXED AND/OR
MOBILE PUBLIC TELEPHONE NETWORKS AND/OR PUBLICLY AVAILABLE
TELEPHONE SERVICES
Article 9
Connection of terminal equipment and use of the network
Member States shall ensure that all users provided with a connection to the
fixed public telephone network can:
(a) connect and use terminal equipment suitable for the connection pro-
vided, in accordance with national and Community law;
(b) access operator assistance services and directory enquiry services in
accordance with Article 6.2(c), unless the subscriber decides otherwise;
(c) access Emergency Services at no charge, using the dialling code ‘112’ and
any other dialling codes specified by national regulatory authorities for
use at a national level.
Member States shall ensure that mobile users can also access the services
mentioned in (b) and (c).
Article 10
Contracts
1. National regulatory authorities shall ensure that organisations providing
access to fixed public telephone networks and mobile public telephone
networks provide a contract. The contract shall specify the service to be
provided or shall make reference to publicly available terms and condi-
tions. The contract or the publicly available terms and conditions shall at
least specify the supply time for initial connection and the types of
maintenance service offered, the compensation and/or refund arrange-
ments for subscribers which apply if the contracted service is not met and
a summary of the method of initiating procedures for the settlement of
disputes in accordance with Article 26 and shall provide information on
service quality levels offered.
2. National regulatory authorities or other competent bodies according to
national legislation shall be able on their own initiative or upon request
by an organisation representing user or consumer interests to require the
alteration of the conditions of contracts referred to in paragraph | and
the conditions of any compensation and/or refund schemes used insofar
as they concern the provisions of this Directive in order to protect the
rights of users and/or subscribers.
Article 11
le Member States shall ensure that all organisations providing fixed public
telephone networks and mobile public telephone networks or publicly
available telephone services publish adequate and up-to-date information
for consumers on their standard terms and conditions with regard to
access to and use of the public telephone networks and/or publicly
available telephone services. In particular, national regulatory authorities
shall ensure that tariffs for end-users, any minimum contractual period, if
relevant, and conditions of renewal of the contracts are presented clearly
and accurately.
National regulatory authorities shall ensure that organisations providing
fixed public telephone networks provide them with details of technical
interface specifications for network access,as identified in Annex II, part
1, to be made available in accordance with paragraph 4. Changes in
existing network interface specifications and information on new net-
work interface specifications shall be communicated to the national
regulatory authority in advance of implementation. The national regula-
tory authority may lay down a suitable period of notice.
Where and for as long as the provision of fixed public telecommunica-
tions networks and voice telephony services are subject to special or
exclusive rights in a Member State, national regulatory authorities shall
ensure that adequate and up-to-date information on access to and use of
the fixed public telecommunications networks and fixed public telephone
services is published according to the list of headings given in Annex II,
part 2 in the manner laid down in paragraph 4.
National regulatory authorities shall ensure that the information is made
available in an appropriate manner in order to provide easy access to that
information for interested parties. Reference to the manner in which this
information is published shall be made in the national Official Gazette of
the Member State concerned.
National regulatory authorities shall notify to the Commission by no
later than 30 June 1998 the manner in which the information referred to
in paragraphs 2 and 3 is made available. The Commission shall regularly
publish a reference to such notifications in the Official Journal of the
European Communities. Any changes shall be notified immediately.
Article 12
Quality of service
i Member States shall be able to set the quality of services identified in this
Directive for organisations providing fixed public telephone networks
and/or fixed public telephone services in accordance with the procedures
set out in this Article.
In accordance with Directive 97/13/EC on Licensing, they may to this
end set performance targets in the individual licences, in particular for
98/10/EC 289
organisations which have significant market power in the provision of

fixed public telephone networks and/or voice telephony services or which
have been designated in accordance with Article 5.
In the case of organisations which retain special or exclusive rights for the
provision of fixed public telecommunications networks and/or voice
telephony services, Member States shall ensure that targets are set and
published for the relevant parameters laid down in Annex III, in
accordance with Article 11(4).
National regulatory authorities shall ensure that organisations with
significant market power or which have been designated in accordance
with Article 5 start to keep up-to-date information concerning their
performance based on the parameters, definitions and measurement
methods laid down in Annex III. National regulatory authorities shall
also be able to request that other organisations which have been
providing fixed public telephone networks and/or fixed public telephony
services for more than 18 months do the same. This information shall be
provided to the national regulatory authority on request.
Where appropriate, and taking account of, in particular, the views of
interested parties in accordance with the provisions of Article 24,
national regulatory authorities shall ensure publication, in accordance
with Article 11(4), of the performance data referred to in paragraph | and
may set performance targets for organisations providing fixed public
telephone networks and/or fixed public telephone services which either
have significant market power or have been designated in accordance
with Article 5 where such targets do not exist already.
Persistent failure by an organisation to meet performance targets may
result in specific measures being taken in accordance with conditions set
out in the relevant authorisation for that organisation.
National regulatory authorities shall have the right to call for indepen-
dent audits of the performance data in order to ensure the accuracy and
comparability of the data made available by the organisations referred to
in paragraph 2.
Article 13
Conditions of access and use and essential requirements
I. Without prejudice to the procedure for the resolution of national disputes
laid down in Article 26(1), national regulatory authorities shall have
procedures in order to address situations where organisations providing
fixed public telephone networks and/or fixed public telephone services, or
at least those organisations providing voice telephony services which
either have significant market power or have been designated in accor-
dance with Article 5 and have significant market power, take measures
such as the interruption, termination, significant variation or reduction
in availability of services at least to organisations providing telecommu-
nications networks and/or services.
The national regulatory authority shall ensure that these procedures

provide for a transparent decision-making process in which due respect
is given to the rights of the parties. The decision shall be taken after both
parties have been given the opportunity to state their case. The decision
shall be duly substantiated and notified to the parties within one week of
its adoption.
A summary of these procedures shall be published in the manner laid
down in Article 11(4).
This provision shall not prejudice the rights of the parties concerned to
apply to the courts.
2. Member States shall ensure that, when access to or use of fixed public
telephone networks and/or the fixed public telephone services is re-
stricted on the basis of essential requirements, the relevant national
provisions identify which of the essential requirements set out in (a) to
(e) below are the basis of such restrictions.
These restrictions shall be imposed through regulatory means and shall
be published in the manner laid down in Article 11(4).
Without prejudice to action which may be taken in accordance with
Articles 3(5) and 5(3) of Directive 90/387/EEC, the following essential
requirements shall apply to the fixed public telephone network and fixed
public telephone services in the following manner:
(a) security of network operations
Member States shall take all necessary steps to ensure that the
availability of fixed public telephone networks and of fixed public
telephone services is maintained in the event of catastrophic net-
work breakdown or in cases of force majeure, such as extreme
weather, earthquake, flood, lightning or fire.In the event of the
circumstances referred to in the first subparagraph, the bodies
concerned shall make every endeavour to maintain the highest level
of service to meet any priorities laid down by the competent
authorities.
National regulatory authorities shall ensure that any restrictions on
grounds of the security of networks are proportionate and non-
discriminatory and are based on objective criteria identified in
advance.
(b) maintenance of network integrity

Member States shall take all necessary steps to ensure that the
integrity of the fixed public telephone network is maintained.
National regulatory authorities shall ensure that restrictions on
grounds of maintenance of network integrity, in order to protect,
inter alia, network equipment, software or stored data, are kept to
IS/IOLZEC 291
the minimum necessary to provide for normal operation of the

network. Such restrictions shall be non-discriminatory and based
on objective criteria identified in advance.
(c) interoperability of services
When terminal equipment is operating in compliance with Direc-
tive 91/263/EEC (15), no further restrictions on use shall be
imposed on the grounds of interoperability of services.
(d) protection of data
Conditions on access to and use of fixed public telephone networks
and/or fixed public telephone services based on the grounds of
protection of data may be imposed only in accordance with relevant
legislation on the protection of personal data and privacy, such as
Directive 95/46/EC and Directive 97/66/EC.
(e) effective use of the frequency spectrum
Member States shall take all necessary steps to ensure the effective
use of the frequency spectrum and the avoidance of harmful
interference between radio-based systems which could restrict or
limit access to or use of fixed public telephone networks and fixed
public telephone services.
Where and for as long as Member States maintain special or exclusive

rights for the provision of public telecommunications networks and voice
telephony services, conditions imposed on users on the basis of such
special or exclusive rights shall be imposed through regulatory means
under the authority of the national regulatory authority.
Article 14
Itemised billing, tone dialling and selective call barring
lk In order to ensure that users have access over fixed public telephone
networks as early as possible to the facilities of:
— tone dialling,
- itemised billing and selective call barring as facilities available on
request,
Member States may designate one or more operators to provide these
facilities to most telephone users before 31 December 1998 and to ensure
that they are generally available by 31 December 2001.
A Member State may authorise its national regulatory authority not to
apply the requirements of this paragraph in all or part of its territory if it
is satisfied that these facilities are widely available.
Tone dialling and selective call barring are specified in Annex I, part 1.
Subject to the requirements of relevant legislation on the protection of
personal data and privacy, such as Directive 95/46/EC and Directive 97/
66/EC, itemised bills shall show a sufficient level of detail to allow
verification and control of the charges incurred in using the fixed public
telephone network and/or fixed public telephone services.
Do. Telecommunications
A basic level of itemised billing shall be available at no extra charge to the

user. Where appropriate, additional levels of detail may be offered to
subscribers at reasonable tariffs or at no charge. National regulatory
authorities may lay down the basic level of itemised bills.
Calls which are free of charge to the calling subscriber, including calls to
helplines, shall not be identified in the calling subscriber’s itemised bill.
Article 15
Provision of additional facilities
ie National regulatory authorities shall ensure that organisations providing
voice telephony services, which either have significant market power or
have been designated in accordance with Article 5 and have significant
market power, provide, subject to technical feasibility and economic
viability, the facilities listed in Annex I, part 2.
Subject to the requirements of relevant legislation on the protection of
personal data and privacy, such as Directive 95/46/EC and Directive 97/
66/EC, Member States shall take ali necessary measures to remove any
regulatory restrictions which prevent provision of the services and
facilities listed in Annex I, part 3, in compliance with the competition
rules of Community law.
National regulatory authorities shall ensure that dates for the introduction
of the facilities listed in Annex I, part 2 are set, taking into account the state
of network development, market demand and progress with standardisa-
tion, and are published in the manner laid down in Article 11(4).
Where the facility of number portability, as referred to in Article 12(5) of
Directive 97/33/EC on Interconnection, is not yet in use, national
regulatory authorities shall ensure that, for a reasonable period after a
subscriber has changed supplier, either a telephone call to his old number
can be re-routed to his new number for a reasonable fee or callers are
given an indication of the new number, without charging the called party
for this service.
National regulatory authorities shall ensure that any fees for the above
facilities are reasonable.
Article 16
Special network access
E. National regulatory authorities shall ensure that organisations with
significant market power in the provision of fixed public telephone
networks deal with reasonable requests from organisations providing
telecommunications services for access to the fixed public telephone
network at network termination points other than the commonly
provided network termination points referred to in Annex IJ, part 1. This
obligation may only be limited on a case-by-case basis and on the
grounds that there are technically and commercially viable alternatives
to the special access requested, and if the requested access is inappropri-
ate in relation to the resources available to meet the request.
9S/IO(EC 293
The organisation making such a request shall be granted an opportunity

to put its case to the national regulatory authority before a final decision
is taken to restrict or deny access in response to a particular request.
Where a request for special network access is denied, the organisation
making the request should be given a prompt and justified explanation of
why the request has been refused.
Technical and commercial arrangements for special network access shall
be a matter for agreement between the parties involved, subject to
intervention by the national regulatory authority as laid down in
paragraphs 2, 4 and 5.
The agreement may include reimbursement to the organisation of its
costs incurred in providing the network access requested; these charges
shall fully respect the principles of cost orientation set out in Annex II to
Directive 90/387/EEC.
National regulatory authorities may intervene on their own initiative at
any time, where justified, in order to ensure effective competition and/or
interoperability of services and shall do so, if requested by either party, in
order to set conditions which are non-discriminatory, fair and reasonable
for both parties and offer the greatest benefit to all users.
National regulatory authorities shall also have the right, in the interest of
all users, to ensure that the agreements include conditions which meet the
criteria set out in paragraph 4, are entered into and implemented in an
efficient and timely manner and include conditions on conformity with
relevant standards, compliance with essential requirements and/or the
maintenance of end-to-end quality.
Conditions set by national regulatory authorities in accordance with
paragraph 5 shall be published in the manner laid down in Article 11(4).
National regulatory authorities shall ensure that organisations with
significant market power referred to in paragraph | adhere to the
principle of non-discrimination when they make use of the fixed public
telephone network and, in particular, use any form of special network
access, for providing publicly available telecommunications services.
Such organisations shall apply similar conditions in similar circum-
stances to organisations providing similar services and shall provide
special network access facilities and information to others under the
same conditions and of the same quality as they provide for their own
services or those of their subsidiaries or partners.
Where appropriate, the Commission shall, in consultation with the ONP
29, request the European Telecommunications Standards Institute (ETSD
to draw up standards for new types of network access. Reference to such
standards shall be published in the Official Journal of the European
Communities in accordance with Article 5 of Directive 90/387/EEC.
Details of agreements for special network access shall be made available
to the national regulatory authority on request. Without prejudice to the
rights and obligations referred to in Article 20(2) of Directive 97/13/EC

on Licensing, national regulatory authorities shall keep confidential
those parts of the agreements referred to in paragraph 3 which deal with
the commercial strategy of the parties.
Article 17
Tariff principles
I Without prejudice to the specific provisions of Article 3 in relation to
affordability or to paragraph 6, national regulatory authorities shall
ensure that organisations providing voice telephony services which either
have significant market power or have been designated in accordance
with Article 5 and have significant market power comply with the
provisions of this Article.
Tariffs for use of the fixed public telephone network and fixed public
telephone services shall follow the basic principles of cost orientation set
out in Annex II to Directive 90/387/EEC.
Without prejudice to Article 7(3) of Directive 97/33/EC on Interconnec-
tion, tariffs for access to and use of the fixed public telephone network
shall be independent of the type of application which the users imple-
ment, except to the extent that they require different services or facilities.
Tariffs for facilities additional to the provision of connection to the fixed
public telephone network and fixed public telephone services shall, in
accordance with Community law, be sufficiently unbundled so that the
user is not required to pay for facilities which are not necessary for the
service requested.
Tariff changes shall be implemented only after an appropriate public
notice period, set by the national regulatory authority, has been observed.
Without prejudice to Article 3 in relation to affordability, a Member State
may authorize its national regulatory authority not to apply paragraphs
1, 2, 3, 4 or 5 of this Article in a specific geographical area where it is
satisfied that there is effective competition in the fixed public telephone
services market.
Article 18
Cost accounting principles
ie Member States shall ensure that, where an organisation has an obligation
for its tariffs to follow the principle of cost orientation in accordance with
Article 17, the cost accounting systems operated by such organisations
are suitable for the implementation of Article 17 and that compliance
with such systems are verified by a competent body which is independent
of those organisations. National regulatory authorities shall ensure that a
statement concerning compliance is published annually.
accounting systems referred to in paragraph 1, showing the main
categories under which costs are compiled and the rules used for the
allocation of costs to voice telephony services, is made available to them
9B/IOZEC 295
on request. National regulatory authorities shall submit to the Commis-

sion, on request, information on the cost accounting systems applied by
the organisations concerned.
Where and as long as the provision of public telecommunications net-
works and voice telephony services are subject to special or exclusive
rights in a Member State, the systems referred to in paragraph | shall,
without prejudice to the last subparagraph of this paragraph, include the
following elements:
(a) the costs of the voice telephony service shall include, in particular,
the direct costs incurred by the telecommunications organisations
in setting up, operating and maintaining the voice telephony service
and in marketing and billing the service;
(b) common costs, i.e. costs which cannot be directly assigned to either
the voice telephony service or other activities, shall be allocated as
follows:
(1) | whenever possible, common cost categories shall be allocated
on the basis of direct analysis of the origin of the costs
themselves;
(ii) when direct analysis is not possible, common cost categories
shall be allocated on the basis of an indirect linkage to another
cost category or group of cost categories for which direct
assignment or allocation is possible; the indirect linkage shall
be based on comparable cost structures;
(111) when neither direct nor indirect measures of cost allocation
can be found, the cost category shall be allocated on the basis
of a general allocator computed by using the ratio of all
expenses directly or indirectly assigned or allocated to, on the
one hand, the voice telephony service and, on the other hand,
other services.
Other cost accounting systems may be applied if they are suitable for the
implementation of Article 17 and have been approved as such by the
national regulatory authority for application by the telecommunications
organisations, subject to the Commission’s being informed prior to their
application.
Member States shall ensure that the financial accounts of all organisa-
tions providing fixed public telephone networks and/or voice telephony
services are drawn up, submitted to audit and published in accordance
with the provisions of national and Community legislation applying to
commercial undertakings. Detailed accounting information shall be
made available to the national regulatory authority in order to ensure
compliance with the provisions of this Directive, on its request and in
confidence, without prejudice to the rights and obligations of national
regulatory authorities referred to in Article 20(2) of Directive 97/13/EC
on Licensing.
Article 19
Discounts and other special tariff provisions
Member States shall ensure that, where an organisation has an obligation for
its tariffs to follow the principle of cost orientation in accordance with Article
17, discount schemes for users, including consumers, are fully transparent and
are published and applied in accordance with the principle of non-discrimina-
tion.
National regulatory authorities may require such discount schemes to be
modified or withdrawn.
Article 20
Specifications for network access, including the socket
1. | Standards suitable for access to fixed public telephone networks shall be
published in the ONP List of Standards referred to in Article 5 of
2. | Where the services referred to in this Directive are supplied to users over
the ISDN network at the S/T reference point, national regulatory
authorities shall ensure that the ISDN network termination points
comply with the relevant physical interface specifications, in particular
those for the socket, referenced in the ONP List of Standards.
Article 21
Non-payment of bills
Member States shall authorise specified measures, which shall be proportion-
ate, non-discriminatory and published in the manner laid down in Article
11(4), to cover non-payment of telephone bills for use of the fixed public
telephone network. These measures shall ensure that due warning of any
consequent service interruption or disconnection is given to the subscriber
beforehand.
Except in cases of fraud, persistent late payment or non-payment, these

measures shall ensure, as far as is technically feasible, that any service
interruption is confined to the service concerned. Member States may decide
that, where appropriate, complete disconnection takes place only after a stated
period during which calls which do not incur a charge to that subscriber are
permitted.
Article 22
1. This Article shall apply where and for as long as the provision of public
telecommunications networks and voice telephony services are subject to
special or exclusive rights in a Member State.
2. National regulatory authorities shall ensure that service offerings of
organisations with such special or exclusive rights continue for a reason-
able period of time and that termination of an offering, or a change that
materially alters the use that can be made of it, can be done only after
98/10/EC 297
consultation with users affected and an appropriate public notice period

set by the national regulatory authority.
3. Without prejudice to other rights of appeal provided for by national law,
Member States shall ensure that users and, where national law so
provides, organisations representing user and/or consumer interests can
bring before the national regulatory authority cases where the users
affected do not agree with the termination date as envisaged by the
organisation concerned.
Article 23
Variation of published conditions
1. This Article shall apply where and for as long as the provision of public
telecommunications networks and voice telephony services are subject to
special or exclusive rights in a Member State.
2. Where, in response to a particular request, an organisation with such
special or exclusive rights considers it unreasonable to provide a connec-
tion to the fixed public telephone network under its published tariffs and
supply conditions, it must seek the agreement of the national regulatory
authority to vary those conditions in that case.
CHAPTER IV
PROCEDURAL PROVISIONS
Article 24
Consultation with interested parties
Member States shall take into account, in accordance with national proce-
dures, the views of the representatives of organisations providing public
telecommunications networks, of users, consumers, manufacturers and service
providers on issues related to the scope, affordability and quality of publicly
available telephone services.
Article 25
1. Member States shall notify to the Commission any changes in the
information which had to be published under Directive 95/62/EC. The
Commission shall publish this information in the Official Journal of the
2. | Member States shall also notify to the Commission:
- organisations with significant market power for the purposes of this
Directive,
~ details of situations where organisations providing fixed public
telephone networks and/or voice telephony services no longer have
to follow the principle of cost orientation of tariffs, in accordance
with Article 17(6),
- organisations designated in accordance with Article 5, if any.
The Commission may request national regulatory authorities to provide

their reasons for classifying or not classifying organisations in either or
both of the categories referred to in the first two indents.
3. Where a Member State maintains special or exclusive rights for the
provision of public telecommunications networks and voice telephony
services, national regulatory authorities shall keep available and submit
to the Commission, on request, details of individual cases brought before
them other than those covered by Article 21, where access to or use of the
fixed public telephone network or voice telephony service has been
restricted or denied, including the measures taken and their justification.
Article 26
Conciliation and resolution of national disputes
Without prejudice to:
(a) any action which the Commission or any Member State may take
pursuant to the Treaty;
(b) the rights of the person invoking the procedure in points 3 and 4, of the
organisations concerned or of any other person under applicable national
law, except insofar as they enter into an agreement for the resolution of
disputes between them;
(c) Article 10(2), which allows the national regulatory authorities to alter the
conditions of subscriber contracts,
the following procedures shall be available:
(1) Member States shall ensure that any party, including, for example, users,
service providers, consumers or other organisations having an unresolved
dispute with an organisation providing fixed public telephone networks and/
or fixed public telephone services concerning an alleged infringement of the
provisions of this Directive, shall have a right to bring cases before the national
regulatory authority or another independent body. Easily accessible and in
principle inexpensive procedures shall be available at a national level to resolve
such disputes in a fair, transparent and timely manner. These procedures shall,
in particular, apply in cases where users are in dispute with an organisation
over their telephone bills or over the terms and conditions under which
telephone service is provided.
Organisations representing user and/or consumer interests may bring to the
attention of the national regulatory authority or another independent body
cases where terms and conditions under which telephone service is provided
are deemed to be unsatisfactory for users.
(2) A user or an organisation may, where the dispute involves organisations

in more than one Member State, invoke the conciliation procedure provided
for in points 3 and 4 by means of a written notification to the national
regulatory authority and to the Commission. Member States may also allow
their national regulatory authority to invoke the conciliation procedure.
98/10/EC 299
(3) Where the national regulatory authority or the Commission finds that
there is a case for further examination, following a notification based on point
2, it may refer the matter to the Chairman of the ONP Committee.
(4) In the circumstances referred to in point 3, the Chairman of the ONP

Committee shall initiate the procedure described below if he is satisfied that all
reasonable steps have been taken at national level:
the Chairman of the ONP Committee shall convene as soon as possible a
working group including at least two members of the ONP Committee
and one representative of the national regulatory authorities concerned,
and the Chairman of the ONP Committee or another official of the
Commission appointed by him. The working group shall be chaired by
the representative of the Commission and shall normally meet within ten
days of having been convened. The Chairman of the working group may
decide, on a proposal by any of the members of the working group, to
invite a maximum of two other persons as experts to advise it,
the working group shall give the party invoking this procedure, the
national regulatory authorities of the Member States involved and the
organisations involved the opportunity to present their opinions in oral
or written form,
the working group shall endeavour to reach agreement between the
parties involved within three months of the date of receipt of the
notification referred to in paragraph 2. The Chairman of the ONP
Committee shall inform that Committee of the results of the procedure
so that it may express its views.
(5) The party invoking the procedure shall bear its own costs of participating
in this procedure.
Article 27
1 Deferments granted in relation to Articles 12 and 13 of Directive 95/62/
EC shall remain unchanged with regard to Articles 17 and 18 of this
Directive.
Deferment of the obligations under Article 15(4) may be requested where
the Member State concerned can prove that they would impose an
excessive burden on certain organisations or classes of organisation. The
Member State shall inform the Commission of the reasons for requesting
a deferment, the date by which the requirements can be met, and the
measures envisaged in order to meet this deadline. The Commission shall
consider the request taking into account the particular situation in that
Member State and the need to ensure a coherent regulatory environment
at a Community level, and shall inform the Member State whether it
deems that the particular situation in that Member State justifies a
deferment and, if so, until which date such deferment is justified.
Article 28
Modifications necessary to adapt Annexes I, II and III to this Directive to
technological developments or to changes in market demand shall be deter-
Article 29
e The Commission shall be assisted by the ONP Committee. The Commit-
tee shall, in particular, consult the representatives of the organisations
providing fixed public telephone networks, publicly available telephone
services, users, consumers and manufacturers.
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
by the Committee. It shall inform the Committee of the manner in which
Article 30
1. Notwithstanding the provisions of Article 29, the following procedure
shall apply in respect of the matters covered by Article 28.
2 The representative of the Commission shall submit to the Committee a
the majority laid down in Article 148(2) of the Treaty in the case of
within the Committee shall be weighted in the manner set out in that
Article. The Chairman shall not vote.
If, on expiry of a period of three months from the date of referral to the
Council, the Council has not acted, the proposed measures shall be
98/10/EC 301
Article 31
Review
the Council on the functioning of this Directive, on the first occasion not later
than 31 December 1999, taking into account the Report on Universal Service
to be published by the Commission before | January 1998. The review shall be
based on, inter alia, the information provided by the Member States to the
Commission and shall examine in particular
- the scope of the Directive, in particular the extent to which it is desirable
to apply the provisions of this Directive to mobile telephony,
~ the provisions in Chapter II in the light of changes in market conditions,
user demand and technological progress,
- the maintenance of the obligations imposed under Articles 17, 18 and 19
in the light of the emergence of competition.
Where necessary, further periodic reviews may be proposed in the report.
Article 32
Transposition
Directive by 30 June 1998. They shall forthwith inform the Commission
thereof.
2. Member States shall inform the Commission of the main provisions of
Article 33
Repeal of Directive 95/62/EC
Directive 95/62/EC is hereby repealed with effect from 30 June 1998, without
prejudice to Member States’ obligations for implementation of that Directive
according to the timescales laid down in Annex IV.
References made to the repealed Directive shall be construed as being made to
this Directive.Annex V provides a comparative table showing the relationship
between the Articles of Directive 95/62/EC and the Articles of this Directive.
Article 34
Entry into force
This Directive shall enter into force on the 20th day following that of its
Article 35
Addressees
Done at Brussels, 26 February 1998.

The President
J. M. GIL-ROBLES
For the Council
The President
B. ROCHE
(1) OJ C 371, 9.12.1996, p. 22 and OJ C 248, 14.8.1997, p. 13.

(2) OJ C 133, 28.4.1997, p. 40.
(3) Opinion of the European Parliament of 20 February 1997 (OJ C 85, 17.3.1997, p. 126),
Council Common Position of 9 June 1997 (OJ C 234, 1.8.1997, p. 87) and Decision of the
European Parliament of 17 September 1997 (OJ C 304, 6.10.1997, p. 82). Decision of the
European Parliament of 29 January 1998 and Decision of the Council of 12 February 1998.
(4) Council Resolution 94/C48 of 7 February 1994 on, Universal Service principles in the
telecommunications sector (OJ C 48, 16.2.1994, p. 1) and Council Resolution 95/C258 of 18
September 1995 on the implementation of the future regulatory framework for telecommuni-
cations (OJ C 258, 3.10.1995, p. 1).
(5) European Parliament Resolution of 19 May 1995 on the Green Paper on the liberalisation of
telecommunications infrastructure and cable television networks — Part II A4-0111/95; (OJ C
UST19I6H1995; p. 27):
(6) Opinion of the Economic and Social Committee of 13 September 1995 on the Green Paper on
the liberalisation of telecommunications infrastructure and cable television networks — Part II
(OJ C 301, 13.11.1995, p. 24).
(7) Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on
interconnection in telecommunications with regard to ensuring universal service and inter-
operability through application of the principles of Open Network Provision (ONP) (OJ L
199, 26.7.1997, p. 32).
(8) OJ L 192, 24.7.1990, p. 1. Directive as amended by Directive 97/51/EC (OJ L 295,
29.10.1997, p..23).
(9) OJ L 321, 30.12.1995, p. 6.
(10) OJ L 199, 26.7.1997, p. 32.
(11) OJ L 281, 23.11.1995, p. 31.
(12) OJ L 24, 30.1.1998, p. 1.
(13) OJ L217, 6.8.1991, p.31.
(14) OJ L 117, 7.5.1997, p. 15.
(15) OJ L 128, 23.5.1991, p. 1, as amended by Directive 93/68/EEC (OJ L 220, 30.8.1993, p. 1).
ANNEX I
Description of facilities referred to in Articles 14 and 15
Part 1
Facilities referred to in Article 14(1)

(a) Tone dialling or DIMF (dual-tone multifrequency operation)
i.e. the fixed public telephone network supports the use of DTMF
telephones for signalling to the exchange, using tones as defined in ETSI
ETR 207, and supports the same tones for end-to-end signalling through-
out the network both within a Member State and between Member
States.
98/107EC 303
(b) Selective call barring for outgoing call

i.e. the facility whereby the subscriber can, on request to the telephone
service provider, bar outgoing calls of defined types or to defined types of
numbers.
Part 2
List of facilities referred to in Article 15(1)
(a) Calling-line identification
i.e. the calling party’s number is presented to the called party prior to the
call’s being established.
This facility should be provided in accordance with relevant legislation
on protection of personal data and privacy, such as Directive 95/46/EC
and Directive 97/66/EC.
(b) Direct dialling-in (or facilities offering equivalent functionality)
i.e. users on a private branch exchange (PBX) or similar private system
can be called directly from the fixed public telephone network, without
the intervention of the PBX attendant.
(c) Call forwarding
1.e. incoming calls sent to another destination in the same or another
Member State (e.g. on no reply, on busy, or unconditionally).
Part 3
List of services and facilities referred to in Article 15(2)
(a) Community-wide access to green/freephone services

These services, variously known as green numbers, freephone services,
cover dial-up services where the caller pays nothing for the call to the
number dialled.
(b) Shared cost services
These services cover dial-up services where the caller pays only part of
the cost of the call to the number dialled.
(c) Community-wide premium rate services/shared revenue services
Premium rate service is a facility whereby charges for the use of a service
accessed through a telecommunications network are combined with the
network call charges.
(d) Community-wide calling-line identification
i.e. the calling party’s number is presented to the called party prior to the
call’s being established.
(e) Access to operator services in other Member States

i.e. users in one Member State can call the operator/assistance service in
(f) Access to directory enquiry services in other Member States
i.e. users in one Member State can call the directory enquiry service in
ANNEX II
Headings for information to be published in accordance with Article 11
Part 1
Information to be supplied to the national regulatory authority in accordance
with Article 11(2)
Technical characteristics of network interfaces
Technical characteristics of interfaces at commonly provided network termina-

tion points are required, including where applicable reference to relevant
national and/or international standards or recommendations:
- for analogue and/or digitally presented networks:
(a) single line interface;
(b) multiline interface;
(c) direct dialling-in (DDI) interface;
(d) other interfaces commonly provided,
- for ISDN: (where provided)
(a) specification of basic and primary rate interfaces at the S/T
reference points, including the signalling protocol;
(b) details of bearer services able to carry voice telephony services;
(c) other interfaces commonly provided,- and any other interfaces
commonly provided.
In addition to the above information to be submitted to the national regulatory

authority on a regular basis in the manner laid down in Article 11(2), all
organisations providing fixed public telephone networks must inform their
national regulatory authority, without undue delay, of any particular network
characteristics which are found to affect the correct operation of terminal
equipment.
The national regulatory authority shall make this information available on
request to terminal equipment suppliers.
98/1I0/EE 305
Part2
Information to be published in accordance with Article 11(3)
Note: The national regulatory authority has a responsibility to ensure that the
information in this Annex is published, in accordance with Article 11(3). It is
for the national regulatory authority to decide which information is to be
published by the organisations providing telecommunications networks and/or
publicly available telephone services and which by the national regulatory
authority itself.
1. Name(s) and address(es) of organisation(s)
i.e. names and head office addresses of organisations providing fixed
public telephone networks and/or publicly available telephone services.
2. Telephone services offered
2.1. Scope of the basic service
Description of the basic telephone services offered, indicating what
is included in the subscription charge and the periodic rental charge
(e.g. operator services, directories, directory services, selective call
barring, itemised billing, maintenance etc).
Description of optional facilities and features of the telephone
service which are tariffed separately from the basic offering,
including where applicable reference to the relevant technical
standards or specifications to which they conform.
2.2. Tariffs
covering access, all types of call charges, maintenance, and includ-
ing details of discounts applied and special and targeted tariff
schemes.
2.3. Compensation/refund policy
including specific details of any compensation/refund schemes
offered.
2.4. Types of maintenance service offered
2.5. Standard contract conditions
including any minimum contractual period, if relevant.
3. | Conditions for attachment of terminal equipment
This shall include a complete overview of requirements for terminal
equipment in line with the provisions of Directives 91/263/EEC or 93/
97/EEC (1), including, where appropriate, conditions concerning custo-
mer premises’ wiring and location of the network termination point.
4. Restrictions on access and useThis shall include any restrictions on
access and use imposed in accordance with the requirements of Article
(ee
(1) OJ L 290, 24.11.1993, p. 1.

DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF
14 DECEMBER 1998 ON THE COORDINATED INTRODUCTION OF A THIRD-
GENERATION MOBILE AND WIRELESS COMMUNICATIONS SYSTEM (UMTS) IN
THE COMMUNITY (128/1999/EC)
Official Journal L 017, 22/01/1999 P. 0001

EUROPEAN UNION,
Having regard to the Treaty establishing the European Community and in
particular Articles 57, 66 and 100a thereof,
Having regard to the opinion of the Committee of the Regions [3],

Treaty [4],
(1) Whereas on 29 May 1997 the Commission presented to the European
Parliament, the Council, the Economic and Social Committee and the
Committee of the Regions a communication on the further development of
mobile and wireless communications;
(2) Whereas on 15 October 1997 the Commission presented a communica-
tion on strategy and policy orientations with regard to the further development
of mobile and wireless communications (UMTS);
(3) Whereas on 1 December 1997 the Council invited the Commission to
submit, by early 1998, a proposal for a European Parliament and Council
Decision which would enable orientations to be established on the substance of
the issue and facilitate, within the existing Community legal framework, the
early licensing of UMTS services and, if appropriate and on the basis of the
existing allocation of competences, in respect of coordinated allocation of
frequencies in the Community and pan-European roaming; whereas on 29
January 1998 the European Parliament adopted a resolution expressing its
strong support for the Commission’s communication of 15 October 1997;
(4) Whereas a new generation of innovative systems needs to be developed for

the provision of wireless wideband multimedia services, including Internet and
other Internet Protocol (I/P) based services, for the provision of flexible and
personalised services and for the support of high volume data rates, each
combining the use of terrestrial fixed and mobile as well as satellite compo-
nents; whereas this Decision will apply to satellite components without
prejudice to European Parliament and Council Decision 710/97/EC of 24
March 1997 on a coordinated authorisation approach in the field of satellite
personal-communication services in the Community [5]; whereas there is a
306
need to ensure rapid market access for seamless, global coverage and low cost
and innovative service offering through a sufficient level of competition;
(5) Whereas in 1992 the International Telecommunications Union (ITU)
World Administrative Radio Conference (WARC 92) identified the frequency
spectrum for the development of both the satellite and terrestrial parts of the
Future Public Land Mobile Telecommunications System (FPLMTS), later
renamed IMT-2000; whereas, according to ITU Resolution 212 and to the
World Radiocommunications Conference in 1995 (WRC 95), the initial
implementation of the terrestrial element should take place around the year
2000;
(6) Whereas the concept of Universal Mobile Telecommunications System
(UMTS) in the Community needs to be compatible with the third-generation
mobile system concept called International Mobile Telecommunications-2000
(IMT 2000) developed by the ITU at world level on the basis of ITU
Resolution 212;
(7) Whereas mobile and wireless communications are of strategic importance

both for the development of the Community telecommunications industry and
the information society as well as for the economy and employment in the
Community as a whole; whereas on 3 December 1997 the Commission adopted
a Green Paper on the convergence of the telecommunications, media and
information technology sectors, and the implications for regulation; whereas
on the basis of the consultations resulting from that Green Paper, the
Commission will take into consideration the impact of convergence on UMTS
considering, in particular, the review of Community telecommunications
regulation by 1999;
(8) Whereas in order to create a favourable climate for investment and
deployment of UMTS and to allow the development of Community-wide as
well as pan-European and global services with the widest possible territorial
coverage, early and specific action at Community level is necessary; whereas
Member States should allow the rapid and coordinated introduction of
compatible UMTS networks and services in the Community on the basis of
internal market principles and pursuant to European standards for UMTS
approved or developed by the European Telecommunications Standards
Institute (ETSI), where available, including in particular a common, open and
internationally competitive air-interface standard; whereas diverging national
laws, regulations and administrative action would hinder or prevent the
provision of Community-wide and global UMTS services and the free move-
ment of related equipment;
(9) Whereas Community legislation, including the competition rules, apply to
this sector, in particular: Commission Directive 96/2/EC of 16 January 1996
amending Directive 90/388/EEC with regard to mobile and personal commu-
nications [6], Commission Directive 96/19/EC of 13 March 1996 amending
128/1999/EC 308
Directive 90/388/EEC with regard to the implementation of full competition

in telecommunications markets [7], European Parliament and Council Direc-
tive 97/13/EC of 10 April 1997 on a common framework for general
authorisations and individual licences in the field of telecommunications
services [8], European Parliament and Council Directive 97/33/EC of 30 June
1997 on interconnection in telecommunications with regard to ensuring
universal service and interoperability through application of the principles of
Open Network Provision (ONP) [9] and European Parliament and Council
Directive 97/66/EC of 15 December 1997 concerning the processing of
personal data and the protection of privacy in the telecommunications sector
(10); whereas the list of conditions which may be attached to authorisations for
UMTS pursuant to Directive 97/13/EC is without prejudice to measures taken
by Member States in accordance with public interest requirements recognised
by the Treaty, in particular Articles 36 and 56, especially in relation to public
security including the investigation of criminal activities;
(10) Whereas organisations providing UMTS networks or services over those
networks should be able to enter the market without unnecessary constraints
or excessive fees to allow for a dynamic market and a broad competitive service
offering;
(11) Whereas pursuant to Community law, in particular European Parlia-
ment and Council Directive 97/13/EC and Commission Directive 96/2/EC:
firstly, individual licences should be limited to the establishment and/or the
operation of UMTS networks, secondly, the number of UMTS licences may be
limited only for reasons of demonstrated lack of frequency spectrum capacity
and thirdly, licences should be granted on the basis of objective, non-
discriminatory, detailed and proportionate criteria, regardless of whether or
not individual applicants for licences are existing operators of other systems;
(12) Whereas licences should allow, and Member States should encourage,
transnational roaming in order to secure Community-wide and pan-European
services; whereas there should be cooperation with the European Conference
of Postal and Telecommunications Administrations (CEPT) through the
European Committee for Telecommunications Regulatory Affairs (ECTRA)
for UMTS; whereas in particular mandates may be issued when necessary, to
establish a one-stop shopping procedure for services;
(13) Whereas the amount of spectrum made available will have a direct
impact on how competitive the market will be; whereas estimated demand
should therefore be taken into account when determining the amount of
spectrum to be allocated; whereas sufficient spectrum must be allocated and
cleared sufficiently in advance to foster a broad competitive offering of mobile
multimedia services;
(14) Whereas spectrum allocation is most efficiently pursued in the context of
the CEPT by the European Radiocommunications Committee (ERC); whereas
it should be ensured that appropriate and timely regulatory measures are taken
to achieve the implementation in the Community of ERC decisions if
necessary; whereas Member States should be encouraged to provide the
Commission with regular information as to the implementation of ERC
measures; whereas complementary Community action may be required to
ensure the timely implementation of CEPT decisions within Member States;
(15) Whereas sufficient spectrum will be necessary to foster the development

of a market with a broad competitive offering of mobile multimedia services;
whereas on 30 June 1997 the ERC adopted Decision ERC/DEC/(97)07 on the
frequency bands for the introduction of UMTS which entered into force on 1
October 1997;
(16) Whereas this ERC decision has designated the frequency bands 1900-
1980 MHz, 2010-2025 MHz and 2110-2170 MHz to terrestrial UMTS
applications, and accommodates UMTS satellite component applications
within the bands 1980-2010 MHz and 2170-2200 MHz; whereas sufficient
spectrum must be allocated within the bands identified by WARC 92 according
to the increasing needs for this spectrum before UMTS services are commer-
cially deployed; whereas additional frequency spectrum may become necessary
within a few years;
(17) Whereas at ITU level the review of spectrum and regulatory issues
relating to UMTS and the facilitation of multimode terminal operation and
worldwide roaming of IMT-2000 have been included in the next WRC agenda
in order to identify additional frequency spectrum to satisfy market demand by
2005 to 2010; whereas therefore European common positions need to be
developed and promoted at global level with the participation of all parties
interested;
(18) Whereas spectrum availability and appropriate pricing, coverage and
quality will be essential aspects to the success of UMTS development; whereas
any spectrum pricing method should not adversely impact on the competitive
structure of the market, and respect the public interest, while ensuring efficient
use of the spectrum as a valuable resource;
(19) Whereas specific cooperation among operators may be necessary to
provide coverage of less-populated areas; whereas this Decision does not
prevent Member States from imposing appropriate forms of national roaming
between authorised operators on their territory to the extent needed to ensure
balanced and non-discriminatory competition;
(20) Whereas a proposal was presented by the Commission for a Council and
European Parliament Directive on connected telecommunications equipment
and the mutual recognition of the conformity of equipment to replace
European Parliament and Council Directive 98/13/EC of 12 February 1998
relating to telecommunications terminal equipment and satellite earth station
equipment, including the mutual recognition of their conformity [11]; whereas
128/1999/EC 310
appropriate harmonised standards developed by ETSI and recognised under

Directive 98/13/EC will ensure free movement of terminal equipment includ-
ing for UMTS;
(21) Whereas the second generation cellular digital mobile communications
systems were originally defined in Council Directive 87/372/EEC of 25 June
1987 on the frequency bands to be reserved for the coordinated introduction of
public pan-European cellular digital land-based mobile communications in the
Community [12] as operating in the 900 MHz bands; whereas DCS-1800 has to
be considered as part of the GSM family and of such second generation;
whereas the Community should build on the success of the current generation
of mobile digital technology including GSM both in Europe and in the world,
taking into consideration interworking between UMTS and second-generation
systems; whereas there should be, pursuant to Community law, no discrimina-
tion between GSM operators and new entrants in UMTS markets; whereas
UMTS should develop in one seamless environment including full roaming
with GSM as well as between the terrestrial and satellite components of UMTS
networks, which is likely to make hybrid terminals such as dual mode/band
GSM/UMTS terminals and terrestrial/satellite terminals necessary;
(22) Whereas it is important for UMTS networks to provide secure and

reliable communications and ensure high level security, including protection
against fraudulent use, at least commensurate with that of second-generation
mobile communications;
(23) Whereas UMTS aims at a global market; whereas a common European

UMTS standard should be adopted and proposed as a member of the ‘IMT
2000 family concept’ developed by the ITU in order to increase the chances of
UMTS being adopted in markets outside Europe; whereas the deadlines set by
the ITU therefore need to be met within the Community and the final ITU
technical requirements to be taken into account;
(24) Whereas while voluntary application of standards remains the general

rule, recourse to mandatory standards may be required for interfaces and
situations where necessary to ensure interoperability and facilitate roaming of
mobile networks and services; whereas harmonised standards are adopted by
standardisation bodies such as ETSI, which facilitates regulatory action;
(25) Whereas in 1995 the Commission granted to ETSI a general standardi-

sation mandate related to UMTS pursuant to Council Directive 83/189/EEC
of 28 March 1983 laying down a procedure for the provision of information in
the field of technical standards and regulations [13] and Council Decision 87/
95/EEC of 22 December 1986 on standardisation in the field of information
technology and telecommunications [14], and may issue further mandates in
the future;
(26) Whereas social and societal effects should be taken into account in the
transition towards the wireless information society; whereas development of
UMTS and relevant standards should be coordinated with related efforts, such
as the development of a Community-wide information society, support of
training on UMTS related technologies, access for elderly and disabled persons
and research into the possible health hazards of mobile communications;
(27) Whereas Community undertakings should benefit fully from interna-

tional trade agreements such as agreements signed within the World Trade
Organisation (WTO), including those relating to tariffs, such as in the
Information Technology Agreement, and from the Istanbul Convention on
the elimination of customs duties on personal effects and professional equip-
ment and have effective market access under the specific terms and conditions,
including national treatment, binding on the member countries of the WTO;
whereas the Commission may take all necessary actions to implement interna-
tional agreements; whereas these may need to be supplemented by specific
bilateral or multilateral agreements and negotiations which the Commission
may start on the basis of mandates from the Council;
(28) Whereas in implementing this Decision, the Commission should be
assisted by the Licensing Committee established by Directive 97/13/EC;
whereas in implementing this Decision the Commission, assisted by the
committee, should cooperate closely with relevant outside bodies,
HAVE ADOPTED THIS DECISION:

Article 1
Purpose
The aim of this Decision shall be to facilitate the rapid and coordinated
introduction of compatible UMTS networks and services in the Community
on the basis of internal market principles and in accordance with commercial
demand.
Article 2
Definition
For the purpose of this Decision, ‘Universal mobile telecommunications
system (UMTS)’ shall mean a third-generation mobile and wireless commu-
nications system capable of supporting in particular innovative multimedia
services, beyond the capability of second generation systems such as GSM, and
capable of combining the use of terrestrial and satellite components. This
system shall at least be capable of supporting the characteristics referred to in
Annex I.
Article 3
Coordinated authorisation approach
1. Member States shall take all actions necessary in order to allow, in
accordance with Article 1 of Directive 97/13/EC, the coordinated and
progressive introduction of the UMTS services on their territory by 1
January 2002 at the latest and in particular shall establish an authorisa-
tion system for UMTS no later than | January 2000.
128/1999/EC 312
Member States shall be granted on request an additional implementation

period of up to 12 months beyond the dates referred to in paragraph 1 for
establishing an authorisation system and the introduction of UMTS
services, to the extent justifiable by exceptional technical difficulties in
achieving the necessary adjustments in their frequency plan. Such a
request must be filed before 1 January 2000. The Commission shall assess
such requests and take a reasoned decision within a period of three
months. Any information provided shall be made available to any
interested party on demand having regard to legitimate interests in the
protection of business and security secrets.
When preparing and applying their authorisation systems, Member
States shall ensure, in compliance with Community legislation, that the
provision of UMTS 1s organised:
= in frequency bands which are harmonised by CEPT in accordance
with the procedure laid down in Article 5,
- pursuant to European standards for UMTS approved or developed
by ETSI, where available, including in particular a common, open
and internationally competitive air-interface standard. Member
States shall ensure that licences allow transnational roaming in the
Community.
Given that, in line with efficient use of radio frequencies, it may be

necessary to limit the number of UMTS systems authorised in Member
States, if it is established in accordance with the procedure laid down in
Article 17 of Directive 97/13/EC and in conjunction with CEPT, that
potential types of systems are incompatible, Member States shall co-
ordinate their approach with a view to authorising compatible types of
UMTS systems in the Community.
Article 4
Roaming rights and obligations
hy Member States shall encourage organisations providing UMTS networks
to negotiate among themselves cross-border roaming agreements to
ensure seamless Community-wide service coverage.
a Member States may where necessary take action, in accordance with
Community law, to ensure the coverage of less-populated areas.
Article
Cooperation with CEPT
le The Commission shall, in accordance with the procedure laid down in
Article 16 of Directive 97/13/EC give CEPT/ERC and CEPT/ECTRA
mandates, inter alia, to harmonise frequency use. Those mandates shall
define the tasks to be performed and lay down a timetable.
The timetable for the first mandates is that set out in Annex II.
On the completion of the mandates, it shall be decided in accordance
with the procedure laid down in Article 17 of Directive 97/13/EC
whether the result of the work done pursuant to the mandates shall be
made applicable in the Community.
4. Notwithstanding paragraph 3, if the Commission or any Member State
considers that work done pursuant to the mandate given to the CEPT/
ECTRA or CEPT/ERC is not progressing satisfactorily having regard to
the timetable laid down, it may refer the matter to the Licensing
Committee, which shall act in accordance with the procedure laid down
in Article 17 of Directive 97/13/EC.
Article6
Cooperation with ETSI
The Commission shall take all necessary measures, where appropriate in
cooperation with ETSI, to promote a common and open standard for the
provision of compatible UMTS services throughout Europe, in accordance
with market requirements, taking into account the need to present a common
standard to the ITU as an option for the worldwide ITU IMT 2000
recommendation.
Article 7
The committee
In the implementation of this Decision the Commission shall be assisted by the
Licensing Committee set up by Article 14 of Directive 97/13/EC.
Article &
1. |The Commission shall regularly inform the committee of the outcome of
consultations with the representatives of organisations providing tele-
communications services or networks, users, consumers, manufacturers
and trade unions.
2. The committee shall, taking into account the Community’s telecommu-
nications policy, encourage the exchange of information between the
Member States and the Commission on the situation and the develop-
ment of regulatory activities regarding the authorisation of UMTS
services.
Article 9
International aspects
1. The Commission shall take all necessary measures to facilitate the
introduction of UMTS services and the free circulation of UMTS
equipment in third countries.
2. For this purpose, the Commission shall seek the implementation of
international agreements applicable to UMTS, and shall, in particular
and where necessary, submit proposals to the Council for appropriate
mandates for the negotiation of bilateral and multilateral agreements
with third countries and international organisations. The Council shall
3. | Measures taken pursuant to this Article shall be without prejudice to the
128/1999/EC 314
Community’s and Member States’ obligations pursuant to relevant

Article 10
Notification
Member States shall give the Commission such information as it may require
for the purpose of verifying the implementation of this Decision.
Article 11
Confidentiality
The provisions of Article 20 of Directive 97/13/EC shall apply to information
pursuant to this Decision.
Article 12
Report
The Commission shall keep developments in the field of UMTS under review
and report to the European Parliament and to the Council within two years on
the effectiveness of action taken pursuant to this Decision.
Article 13
Implementation
Member States shall take all measures necessary, by law or administrative
action, for the measures provided for in, or agreed on pursuant to, this
Decision to be implemented.
Article 14
Duration
This Decision shall enter into force on the day of its publication in the Official
Journal of the European Communities and shall remain in force for four years
after that date.
Article 15
Addressees
This Decision is addressed to the Member States.
Official Journal L 017, 22/01/1999 P. 0001

Done at Brussels, 14 December 1998.

The President
J. M. GIL-ROBLES
For the Council
The President
W. MOLTERER
(1) OJC 131, 29. 4. 1998, p. 9 and OJ C 276, 4. 9. 1998, p. 4.

(2) OJC 214, 10. 7. 1998, p. 92.
(3) Opinion delivered on 16 September 1998 (OJ C 373, 2. 12. 1998).
(4) Opinion of the European Parliament of 18 June 1998 (OJ C 210, 6. 7. 1998), Council Common
Position of 24 September 1998 (OJ C 333, 30. 10. 1998, p. 56) and European Parliament
Decision of 18 November 1998 (OJ C 379, 7. 12. 1998). Council Decision of 30 November
1998.
(6) OJ L 105,523. 4. 1997, p. 4.
(6) OJL 20, 26. 1. 1996, p. 59.
(7) OJ L 74, 22. 3. 1996, p. 13.
jm OU Me SAO 9T. peel
(9) OF L 199, 26. 7. 1997, pi 32.
(10) OJ L 24, 30. 1. 1998, p. 1.
(1) O3 L 74, 12. 3. 1998, p: 1.
C2) OF W196, 172 72 1987, p85:
(13) OJ L 109, 26. 4. 1983, p. 8. Directive replaced by Directive 98/34/EC (OJ L 204, 21. 7. 1998,
jos SW)
(4) FONE 363 77 251987) p: 31.
ANNEX I
Characteristics which UMTS is to be capable of supporting
System capabilities needed to accommodate service features

1. Multimedia capability; full mobility and low mobility applications in
different geographical environments beyond the capability of the sec-
ond-generation systems such as GSM.
2. Efficient access to the Internet, Intranets and other Internet Protocol (I/
P) based services.
3. High-quality speech transmission commensurate with that of fixed net-
works.
4. Service portability across distinct UMTS environments where appro-
priate (e.g. public/private/business; fixed/mobile).
5. Operation in one seamless environment including full roaming with
GSM as well as between the terrestrial and satellite components of
UMTS networks.
128/1999/EC 316
Radio access networks

- new terrestrial air interface for access to all services including to packet
data based services, supporting asymmetric traffic and allowing for band
width/data rate on demand in harmonised frequency bands,
— good overall spectral efficiency including the use of paired and unpaired
frequency.
Core network
- call handling, service control and location and mobility management
including full roaming functionality based on an evolution of existing
core network systems, for example on an evolved GSM core network,
taking the convergence between mobile/fixed networks into account.
ANNEX II
Timetable
From February 1999 issue mandates to CEPT on further spectrum allocation

including availability of additional spectrum beyond WARC-92 FPLMTS
bands for UMTS.From February 1999 issue mandates to CEPT to establish
one-stop-shopping procedure for services where necessary.
9 MARCH 1999 ON RADIO EQUIPMENT AND TELECOMMUNICATIONS TERMINAL
EQUIPMENT AND THE MUTUAL RECOGNITION OF THEIR CONFORMITY
(1999/5/EC)

EUROPEAN UNION,
particular Article 100a,
on 8 December 1998,
(1) Whereas the radio equipment and telecommunications terminal equip-

ment sector is an essential part of the telecommunications market, which is a
key element of the economy in the Community; whereas the directives
applicable to the telecommunications terminal equipment sector are no longer
capable of accommodating the expected changes in the sector caused by new
technology, market developments and network legislation;
(2) Whereas in accordance with the principles of subsidiarity and proportion-
ality referred to in Article 3b of the Treaty, the objective of creating an open
competitive single market for telecommunications equipment cannot be suffi-
ciently achieved by the Member States and can therefore be better achieved by
the Community; whereas this Directive does not go beyond what is necessary
to achieve this aim;
(3) Whereas Member States may rely upon Article 36 of the Treaty to exclude
certain classes of equipment from this Directive;
(4) Whereas Directive 98/13/EC [4] consolidated the provisions relating to
telecommunications terminal equipment and satellite earth station equipment,
including measures for the mutual recognition of their conformity;
(5) Whereas that Directive does not cover a substantial proportion of the
radio equipment market;
(6) Whereas dual-use goods are subject to the Community regime of export
controls introduced by Council Regulation (EC) No 3381/94 [5];
(7) Whereas the broad scope of this Directive requires new definitions of the
expressions ‘radio equipment’ and ‘telecommunications terminal equipment’;
whereas a regulatory regime aimed at the development of a single market for
Sy):
radio equipment and telecommunications terminal equipment should permit

investment, manufacture and sale to take place at the pace of technology and
market developments;
(8) Whereas, given the increasing importance of telecommunications term-

inal equipment and networks using radio transmission besides equipment
connected through wired links, any rules governing the manufacturing,
marketing and use of radio equipment and telecommunications terminal
equipment should cover both classes of such equipment;
(9) Whereas Directive 98/10/EC of the European Parliament and of the
Council of 26 February 1998 on the application of open network provision
(ONP) to voice telephony and on universal service for telecommunications in a
competitive environment [6] calls on national regulatory authorities to ensure
the publication of details of technical interface specifications for network
access for the purpose of ensuring a competitive market for the supply of
terminal equipment;
(10) Whereas the objectives of Council Directive 73/23/EEC of 19 February
1973 on the harmonisation of the laws of the Member States relating to
electrical equipment designed for use within certain voltage limits [7] are
sufficient to cover radio equipment and telecommunications terminal equip-
ment, but with no lower voltage limit applying;
(11) Whereas the electromagnetic compatibility related protection require-
ments laid down by Council Directive 89/336/EEC of 3 May 1989 on the
approximation of the laws of Member States relating to electromagnetic
compatibility [8] are sufficient to cover radio equipment and telecommunica-
tions terminal equipment;
(12) Whereas Community law provides that obstacles to the free movement
of goods within the Community, resulting from disparities in national legisla-
tion relating to the marketing of products, can only be justified where any
national requirements are necessary and proportionate; whereas, therefore, the
harmonisation of laws must be limited to those requirements necessary to
satisfy the essential requirements relating to radio equipment and telecommu-
nications terminal equipment;
(13) Whereas the essential requirements relevant to a class of radio equip-

ment and telecommunications terminal equipment should depend on the
nature and the needs of that class of equipment; whereas these requirements
must be applied with discernment in order not to inhibit technological
innovation or the meeting of the needs of a free-market economy;
(14) Whereas care should be taken that radio equipment and telecommunica-
tions terminal equipment should not represent an avoidable hazard to health;
(15) Whereas telecommunications are important to the well-being and

employment of people with disabilities who represent a substantial and
199975 /EC (BY9
growing proportion of the population of Europe; whereas radio equipment and

telecommunications terminal equipment should therefore in appropriate cases
be designed in such a way that disabled people may use it without or with only
minimal adaptation;
(16) Whereas radio equipment and telecommunications terminal equipment
can provide certain functions required by emergency services;
(17) Whereas some features may have to be introduced on the radio
equipment and telecommunications terminal equipment in order to prevent
the infringement of personal data and privacy of the user and of the subscriber
and/or the avoidance of fraud;
(18) Whereas in some cases interworking via networks with other apparatus
within the meaning of this Directive and connection with interfaces of the
appropriate type throughout the Community may be necessary;
(19) Whereas it should therefore be possible to identify and add specific

essential requirements on user privacy, features for users with a disability,
features for emergency services and/or features for avoidance of fraud;
(20) Whereas it is recognised that in a competitive market, voluntary
certification and marking schemes developed by consumer organisations,
manufacturers, operators and other industry actors contribute to quality and
are a useful means of improving consumers’ confidence in telecommunications
products and services; whereas Member States may support such schemes;
whereas such schemes should be compatible with the competition rules of the
Treaty;
(21) Whereas unacceptable degradation of service to persons other than the

user of radio equipment and telecommunications terminal equipment should
be prevented; whereas manufacturers of terminals should construct equipment
in a way which prevents networks from suffering harm which results in such
degradation when used under normal operating conditions; whereas network
operators should construct their networks in a way that does not oblige
manufacturers of terminal equipment to take disproportionate measures to
prevent networks from being harmed; whereas the European Telecommunica-
tions Standards Institute (ETSI) should take due account of this objective when
developing standards concerning access to public networks;
(22) Whereas effective use of the radio spectrum should be ensured so as to
avoid harmful interference; whereas the most efficient possible use, according
to the state of the art, of limited resources such as the radio frequency spectrum
should be encouraged;
(23) Whereas harmonised interfaces between terminal equipment and tele-
communications networks contribute to promoting competitive markets both
for terminal equipment and network services;
(24) Whereas, however, operators of public telecommunications networks

should be able to define the technical characteristics of their interfaces, subject
to the competition rules of the Treaty; whereas, accordingly, they should
publish accurate and adequate technical specifications of such interfaces so as
to enable manufacturers to design telecommunications terminal equipment
which satisfies the requirements of this Directive;
(25) Whereas, nevertheless, the competition rules of the Treaty and Commis-
sion Directive 88/301/EEC of 16 May 1988 on competition in the markets in
telecommunications terminal equipment [9] establish the principle of equal,
transparent and non-discriminatory treatment of all technical specifications
having regulatory implications; whereas therefore it is the task of the Commu-
nity and the Member States, in consultation with the economic players, to
ensure that the regulatory framework created by this Directive is fair;
(26) Whereas it is the task of the European standardisation organisations,
notably ETSI, to ensure that harmonised standards are appropriately updated
and drafted in a way which allows for unambiguous interpretation; whereas
maintenance, interpretation and implementation of harmonised standards
constitute very specialised areas of increasing technical complexity; whereas
those tasks require the active participation of experts drawn from amongst the
economic players; whereas in some circumstances it may be necessary to
provide more urgent interpretation of or corrections to harmonised standards
than is possible through the normal procedures of the European standardisa-
tion organisations operating in conformity with Directive 98/34/EC of 22 June
1998 of the European Parliament and of the Council laying down a procedure
for the provision of information in the field of technical standards and
regulations and of rules on information society services [10];
(27) Whereas it is in the public interest to have harmonised standards at
European level in connection with the design and manufacture of radio
equipment and telecommunications terminal equipment; whereas compliance
with such harmonised standards gives rise to a presumption of conformity to
the essential requirements; whereas other means of demonstrating conformity
to the essential requirements are permitted;
(28) Whereas the assignment of equipment class identifiers should draw on

the expertise of CEPT/ERC and of the relevant European standards bodies in
radio matters; whereas other forms of cooperation with those bodies is to be
encouraged where possible;
(29) Whereas, in order to enable the Commission to monitor market control

effectively, the Member States should provide the relevant information con-
cerning types of interfaces, inadequate or incorrectly applied harmonised
standards, notified bodies and surveillance authorities;
(30) Whereas notified bodies and surveillance authorities should exchange

information on radio equipment and telecommunications terminal equipment
LDOD/S/EE 321
with a view to efficient surveillance of the market; whereas such cooperation

should make the utmost use of electronic means; whereas, in particular, such
cooperation should enable national authorities to be informed about radio
equipment placed on their market operating in frequency bands not harmo-
nised in the Community;
(31) Whereas manufacturers should notify Member States of their intention

to place radio equipment on the market using frequency bands whose use is not
harmonised throughout the Community; whereas Member States therefore
need to put in place procedures for such notification; whereas such procedures
should be proportionate and should not constitute a conformity assessment
procedure additional to those provided for in Annexes IV or V; whereas it is
desirable that those notification procedures should be harmonised and pre-
ferably implemented by electronic means and one-stop-shopping;
(32) Whereas radio equipment and telecommunications terminal equipment

which complies with the relevant essential requirements should be permitted to
circulate freely; whereas such equipment should be permitted to be put into
service for its intended purpose; whereas the putting into service may be
subject to authorisations on the use of the radio spectrum and the provision
of the service concerned;
(33) Whereas, for trade fairs, exhibitions, etc., it must be possible to exhibit
radio equipment and telecommunications terminal equipment which does not
conform to this Directive; whereas, however, interested parties should be
properly informed that such equipment does not conform and cannot be
purchased in that condition; whereas Member States may restrict the putting
into service, including the switching on, of such exhibited radio equipment for
reasons related to the effective and appropriate use of the radio spectrum,
avoidance of harmful interference or matters relating to public health;
(34) Whereas radio frequencies are allocated nationally and, to the extent
that they have not been harmonised, remain within the exclusive competence of
the Member States; whereas it is necessary to include a safeguard provision
permitting Member States, in conformity with Article 36 of the Treaty, to
prohibit, restrict or require the withdrawal from its market of radio equipment
which has caused, or which it reasonably considers will cause, harmful
interference; whereas interference with nationally allocated radio frequencies
constitutes a valid ground for Member States to take safeguard measures;
(35) Whereas manufacturers are liable for damage caused by defective

apparatus according to the provisions of Council Directive 85/374/EEC [11];
whereas without prejudice to any liability on the part of the manufacturer, any
person who imports apparatus into the Community for sale in the course of his
business is liable according to that Directive; whereas the manufacturer, his
authorised representative or the person responsible for placing the apparatus
on the Community market is liable according to the rules of the law of

contractual or non-contractual liability in the Member States;
(36) Whereas the measures which are appropriate to be taken by the Member
States or the Commission where apparatus declared to be compliant with the
provisions of this Directive causes serious damage to a network or harmful
radio interference shall be determined in accordance with the general princi-
ples of Community law, in particular, the principles of objectivity, proportion-
ality and non-discrimination;
(37) Whereas on 22 July 1993 the Council adopted Decision 93/465/EEC
concerning the modules for the various phases of the conformity assessment
procedures and the rules for the affixing and the use of EC conformity marking
which are intended to be used in the technical harmonisation directives [12];
whereas the applicable conformity assessment procedures should preferably be
chosen from among the available modules laid down by that Decision;
(38) Whereas Member States may request that notified bodies they designate
and their surveillance authorities be accredited according to appropriate
European standards;
(39) Whereas it is appropriate that compliance of radio equipment and
telecommunications terminal equipment with the requirements of Directives
73/23/EEC and 89/336/EEC may be demonstrated using the procedures
specified in those Directives where the apparatus is within their scope; whereas,
as a result, the procedure provided for in Article 10(1) of Directive 89/336/
EEC may be used where the application of harmonised standards gives rise to a
presumption of conformity with the protection requirements; whereas the
procedure provided for in Article 10 [13] may be used where the manufacturer
has not applied harmonised standards or where no such standards exist;

(41) Whereas it is desirable to establish a committee bringing together parties

directly involved in the implementation of regulation of radio equipment and
telecommunications terminal equipment, in particular the national conformity
assessment bodies and national bodies responsible for market surveillance, in
order to assist the Commission in achieving a harmonised and proportionate
application of the provisions so as to meet the needs of the market and the
public at large; whereas representatives of telecommunications operators,
users, Consumers, manufacturers and service providers should be consulted
where appropriate;
LQ9D/SIEC 323
(42) Whereas a modus vivendi between the European Parliament, the

Treaty was concluded on 20 December 1994 [14];
(43) Whereas the Commission should keep under review the implementation
and practical application of this and other relevant directives and take steps to
ensure coordination of the application of all relevant directives in order to
avoid disturbance to telecommunications equipment which affects the health of
humans or is harmful to property;
(44) Whereas the functioning of this Directive should be reviewed in due

course in the light of the development of the telecommunications sector and of
experience gained from application of the essential requirements and the
conformity assessment procedures provided for in this Directive;
(45) Whereas it is necessary to ensure that with the introduction of changes to
the regulatory regime there is a smooth transition from the previous regime in
order to avoid disruption to the market and legal uncertainty;
(46) Whereas this Directive replaces Directive 98/13/EC, which should
accordingly be repealed; whereas Directives 73/23/EEC and 89/336/EEC will
no longer apply to apparatus within the scope of this Directive, with the
exception of protection and safety requirements and certain conformity
assessment procedures,

CHAPTER I
GENERAL ASPECTS
Article 1
Scope and aim
1. | This Directive establishes a regulatory framework for the placing on the
market, free movement and putting into service in the Community of
radio equipment and telecommunications terminal equipment.2. Where
apparatus as defined in Article 2(a) incorporates, as an integral part, or as
an accessory:
(a) a medical device within the meaning of Article 1 of Council
Directive 93/42/EEC of 14 June 1993 concerning medical devices
[15], or
(b) an active implantable medical device within the meaning of Article
1 of Council Directive 90/385/EEC of 20 June 1990 on the
approximation of the laws of the Member States relating to active
implantable medical devices [16],
the apparatus shall be governed by this Directive, without prejudice
to the application of Directives 93/42/EEC and 90/385/EEC to
medical devices and active implantable medical devices, respec-

tively.
Where apparatus constitutes a component or a separate technical unit of
a vehicle within the meaning of Council Directive 72/245/EEC [17]
relating to the radio interference (electromagnetic compatibility) of
vehicles or a component or a separate technical unit of a vehicle within
the meaning of Article 1 of Council Directive 92/61/EEC of 30 June
1992 relating to the type-approval of two or three-wheel motor vehicles,
the apparatus shall be governed by this Directive without prejudice to the
application of Directive 72/245/EEC or of Directive 92/61/EEC respec-
tively.
This Directive shall not apply to equipment listed in Annex I.
This Directive shall not apply to apparatus exclusively used for activities
concerning public security, defence, State security (including the econom-
ic well-being of the State in the case of activities pertaining to State
security matters) and the activities of the State in the area of criminal law.
Article 2
Definitions
For the purpose of this Directive the following definitions shall apply:
(a) ‘apparatus’ means any equipment that is either radio equipment or
telecommunications terminal equipment or both;
(b) ‘telecommunications terminal equipment’ means a product enabling
communication or a relevant component thereof which is intended to be
connected directly or indirectly by any means whatsoever to interfaces of
public telecommunications networks (that is to say, telecommunications
networks used wholly or partly for the provision of publicly available
telecommunications services);
(c) ‘radio equipment’ means a product, or relevant component thereof,
capable of communication by means of the emission and/or reception of
radio waves utilising the spectrum allocated to terrestrial/space radio-
communication;
(d) ‘radio waves’ means electromagnetic waves of frequencies from 9 kHz to
3000 GHz, propagated in space without artificial guide;
(e) ‘interface’ means
(i) a network termination point, which is a physical connection point
at which a user is provided with access to public telecommunica-
tions network, and/or
(ii) an air interface specifying the radio path between radio equipmen-
tand their technical specifications;
(f) ‘equipment class’ means a class identifying particular types of apparatus
which under this Directive are considered similar and those interfaces for
which the apparatus is designed. Apparatus may belong to more than one
equipment class;
199979/EC 1325
(g) ‘technical construction file’ means a file describing the apparatus and
providing information and explanations as to how the applicable
essential requirements have been implemented;
(h) ‘harmonised standard’ means a technical specification adopted by a
recognised standards body under a mandate from the Commission in
conformity with the procedures laid down in Directive 98/34/EC for the
purpose of establishing a European requirement, compliance with which
is not compulsory.
(i) ‘harmful interference’ means interference which endangers the function-
ing of a radionavigation service or of other safety services or which
otherwise seriously degrades, obstructs or repeatedly interrupts a radio-
communications service operating in accordance with the applicable
Community or national regulations.
Article 3
Essential requirements
ie The following essential requirements are applicable to all apparatus:
(a) the protection of the health and the safety of the user and any other
person, including the objectives with respect to safety requirements
contained in Directive 73/23/EEC, but with no voltage limit
applying;
(b) the protection requirements with respect to electromagnetic com-
patibility contained in Directive 89/336/EEC.
In addition, radio equipment shall be so constructed that it effectively
uses the spectrum allocated to terrestrial/space radio communication and
orbital resources so as to avoid harmful interference.
In accordance with the procedure laid down in Article 15, the Commis-
sion may decide that apparatus within certain equipment classes or
apparatus of particular types shall be so constructed that:
(a) it interworks via networks with other apparatus and that it can be
connected to interfaces of the appropriate type throughout the
Community; and/or that
(b) it does not harm the network or its functioning nor misuse network
resources, thereby causing an unacceptable degradation of service;
and/or that
(c) it incorporates safeguards to ensure that the personal data and
privacy of the user and of the subscriber are protected; and/or that
(d) it supports certain features ensuring avoidance of fraud; and/or
that
(e) it supports certain features ensuring access to emergency services;
and/or that
(f) it supports certain features in order to facilitate its use by users with
a disability.
Article 4
Notification and publication of interface specifications
if Member States shall notify the interfaces which they have regulated to the
Commission insofar as the said interfaces have not been notified under
the provisions of Directive 98/34/EC. After consulting the committee in
accordance with the procedure set out in Article 15, the Commission
shall establish the equivalence between notified interfaces and assign an
equipment class identifier, details of which shall be published in the
Each Member State shall notify to the Commission the types of interface
offered in that State by operators of public telecommunications networks.
Member States shall ensure that such operators publish accurate and
adequate technical specifications of such interfaces before services
provided through those interfaces are made publicly available, and
regularly publish any updated specifications. The specifications shall be
in sufficient detail to permit the design of telecommunications terminal
equipment capable of utilising all services provided through the corre-
sponding interface. The specifications shall include, inter alia, all the
information necessary to allow manufacturers to carry out, at their
choice, the relevant tests for the essential requirements applicable to the
telecommunications terminal equipment. Member States shall ensure
that those specifications are made readily available by the operators.
Article 5
Harmonised standards
iy Where apparatus meets the relevant harmonised standards or parts
thereof whose reference numbers have been published in the Official
Journal of the European Communities, Member States shall presume
compliance with those of the essential requirements referred to in Article
3 as are covered by the said harmonised standards or parts thereof.
Where a Member State or the Commission considers that conformity
with a harmonised standard does not ensure compliance with the
essential requirements referred to in Article 3 which the said standard is
intended to cover, the Commission or the Member State concerned shall
bring the matter before the committee.
In the case of shortcomings of harmonised standards with respect to the
essential requirements, the Commission may, after consulting the com-
mittee and in accordance with the procedure laid down in Article 14,
publish in the Official Journal of the European Communities guidelines
on the interpretation of harmonised standards or the conditions under
which compliance with that standard raises a presumption of conformity.
After consultation of the committee and in accordance with the proce-
dure laid down in Article 14, the Commission may withdraw harmonised
standards by publication of a notice in the Official Journal of the
1999/5/EC 327
Article 6
Placing on the market
ly Member States shall ensure that apparatus is placed on the market only if
it complies with the appropriate essential requirements identified in
Article 3 and the other relevant provisions of this Directive when it is
properly installed and maintained and used for its intended purpose. It
shall not be subject to further national provisions in respect of placing on
the market.
In taking a decision regarding the application of essential requirements
under Article 3(3), the Commission shall determine the date of applica-
tion of the requirements. If it is determined that an equipment class needs
to comply with particular essential requirements under Article 3(3), any
apparatus of the equipment class in question which is first placed on the
market before the date of application of the Commission’s determination
can continue to be placed on the market for a reasonable period. Both the
date of application and the period shall be determined by the Commis-
sion in accordance with the procedure laid down in Article 14.
Member States shall ensure that the manufacturer or the person
responsible for placing the apparatus on the market provides information
for the user on the intended use of the apparatus, together with the
declaration of conformity to the essential requirements. Where it con-
cerns radio equipment, such information shall be sufficient to identify on
the packaging and the instructions for use of the apparatus the Member
States or the geographical area within a Member State where the
equipment is intended to be used and shall alert the user by the marking
on the apparatus referred to in Annex VII, paragraph 5, to potential
restrictions or requirements for authorisation of use of the radio equip-
ment in certain Member States. Where it concerns telecommunications
terminal equipment, such information shall be sufficient to identify
interfaces of the public telecommunications networks to which the
equipment is intended to be connected. For all apparatus such informa-
tion shall be prominently displayed.
In the case of radio equipment using frequency bands whose use is not
harmonised throughout the Community, the manufacturer or his
authorised representative established within the Community or the
person responsible for placing the equipment on the market shall notify
the national authority responsible in the relevant Member State for
spectrum management of the intention to place such equipment on its
national market.
This notification shall be given no less than four weeks in advance of the
start of placing on the market and shall provide information about the
radio characteristics of the equipment (in particular frequency bands,
channel spacing, type of modulation and RF-power) and the identifica-
tion number of the notified body referred to in Annex IV or V.
Article 7
Putting into service and right to connect
1. Member States shall allow the putting into service of apparatus for its
intended purpose where it complies with the appropriate essential
requirements identified in Article 3 and the other relevant provisions of
this Directive.
Not withstanding paragraph 1, and without prejudice to conditions
attached to authorisations for the provision of the service concerned in
conformity with Community law, Member States may restrict the putting
into service of radio equipment only for reasons related to the effective
and appropriate use of the radio spectrum, avoidance of harmful
interference or matters relating to public health.
Without prejudice to paragraph 4, Member States shall ensure that
operators of public telecommunications. networks do not refuse to
connect telecommunications terminal equipment to appropriate inter-
faces on technical grounds where that equipment complies with the
applicable requirements of Article 3.
Where a Member State considers that apparatus declared to be compliant
with the provisions of this Directive causes serious damage to a network
or harmful radio interference or harm to the network or its functioning,
the operator may be authorized to refuse connection, to disconnect such
apparatus or to withdraw it from service. The Member States shall notify
each such authorisation to the Commission, which shall convene a
meeting of the committee for the purpose of giving its opinion on the
matter. After the committee has been consulted, the Commission may
initiate the procedures referred to in Article 5(2) and (3). The Commis-
sion and the Member States may also take other appropriate measures.
In case of emergency, an operator may disconnect apparatus if the
protection of the network requires the equipment to be disconnected
without delay and if the user can be offered, without delay and without
costs for him, an alternative solution. The operator shall immediately
inform the national authority responsible for the implementation of
paragraph 4 and Article 9.
Article &
Free movement of apparatus
i Member States shall not prohibit, restrict or impede the placing on the
market and putting into service in their territory of apparatus bearing the
CE marking referred to in Annex VII, which indicates its conformity with
all provisions of this Directive, including the conformity assessment
procedures set out in Chapter II. This shall be without prejudice to
Articles 6(4), 7(2) and 9(5).
At trade fairs, exhibitions, demonstrations, etc., Member States shall not
create any obstacles to the display of apparatus which does not comply
with this Directive, provided that a visible sign clearly indicates that such
T99O/STEC °329
apparatus may not be marketed or put into service until it has been made
to comply.
Where the apparatus is subject to other directives which concern other
aspects and also provide for the affixing of the CE marking, the latter
shall indicate that such apparatus also fulfils the provisions of those other
directives. However, should one or more of those directives allow the
manufacturer, during a transitional period, to choose which arrange-
ments to apply, the CE marking shall indicate that the apparatus fulfils
the provisions only of those directives applied by the manufacturer. In
this case, the particulars of those directives, as published in the Official
Journal of the European Communities, must be given in the documents,
notices or instructions required by those directives and accompanying
such products.
Article 9
Safeguards
lw Where a Member State ascertains that apparatus within the scope of this
Directive does not comply with the requirements of this Directive, it shall
take all appropriate measures in its territory to withdraw the apparatus
from the market or from service, prohibit its placing on the market or
putting into service or restrict its free movement.
The Member State concerned shall immediately notify the Commission
of any such measures indicating the reasons for its decision and whether
non-compliance is due to:
(a) incorrect application of the harmonised standards referred to in
Article 5(1);
(b) shortcomings in the harmonised standards referred to in Article
S(1);
(c) failure to satisfy the requirements referred to in Article 3 where the
apparatus does not meet the harmonised standards referred to in
Article 5(1).
If the measures referred to in paragraph 1 are attributed to incorrect
application of the harmonised standards referred to in Article 5(1) or toa
failure to satisfy the requirements referred to in Article 3 where the
apparatus does not meet the harmonised standards referred to in Article
5(1), the Commission shall consult the parties concerned as soon as
possible. The Commission shall forthwith inform the Member States of
its findings and of its opinion as to whether the measures are justified,
Where the decision referred to in paragraph | is attributed to short-
comings in the harmonised standards referred to in Article 5(1), the
Commission shall bring the matter before the committee within two
months. The committee shall deliver an opinion in accordance with the
procedure laid down in Article 14. After such consultation, the Commis-
sion shall inform the Member States of its findings and of its opinion as
to whether the action by the Member State is justified. If it finds that the
action is justified it shall forthwith initiate the procedure referred to in

Article 5(2).
(a) Notwithstanding the provisions of Article 6, a Member State may,
acting in conformity with the Treaty, and in particular Articles 30
and 36 thereof, adopt any appropriate measures with a view to:
(i) prohibiting or restricting the placing on its market, and/or
(ii) requiring the withdrawal from its market,
of radio equipment, including types of radio equipment,
which has caused or which it reasonably considers will cause
harmful interference, including interference with existing or
planned services on nationally allocated frequency bands.
(b) Where a Member State takes measures in accordance with subpar-
agraph (a) it shall immediately inform the Commission of the said
measures, specifying the reasons for adopting them.
When a Member State notifies the Commission of a measure referred to
in paragraph | or 5 the Commission shall in turn inform other Member
States and consult the committee on the matter.
Where, after such consultation, the Commission considers that:
— the measure is justified, it shall immediately so inform the Member
State which took the initiative and the other Member States,
- the measure is unjustified, it shall immediately so inform the
Member State and request it to withdraw the measure.
The Commission shall maintain a record of the cases notified by Member
States, which shall be made available to them on request.
CHAPTER II
CONFORMITY ASSESSMENT
Article 10
Conformity assessment procedures
iF The conformity assessment procedures identified in this Article shall be
used to demonstrate the compliance of the apparatus with all the relevant
essential requirements identified in Article 3.
At the choice of the manufacturer, compliance of the apparatus with the
essential requirements identified in Article 3(1)(a) and (b) may be
demonstrated using the procedures specified in Directive 73/23/EEC
and Directive 89/336/EEC respectively, where the apparatus is within
the scope of those Directives, as an alternative to the procedures laid out
below.
Telecommunications terminal equipment which does not make use of the
spectrum allocated to terrestrial/space radio communication and receiv-
ing parts of radio equipment shall be subject to the procedures described
in any one of Annexes II, IV or V at the choice of the manufacturer.
1999/S/EC 331
Where a manufacturer has applied the harmonised standards referred to

in Article 5(1), radio equipment not within the scope of paragraph 3 shall
be subject to the procedures described in any one of Annexes III, IV or V
at the choice of the manufacturer.
Where a manufacturer has not applied or has only applied in part the
harmonised standards referred to in Article 5(1), radio equipment not
within the scope of paragraph 3 of this Article shall be subject to the
procedures described in either of Annexes IV or V at the choice of the
manufacturer.
Records and correspondence relating to the conformity assessment
procedures referred to in paragraphs 2 to 5 shall be in an official language
of the Member State where the procedure will be carried out, or in a
language accepted by the notified body involved.
Article 11
Notified bodies and surveillance authorities
Ls Member States shall notify the Commission of the bodies which they
have designated to carry out the relevant tasks referred to in Article 10.
Member States shall apply the criteria laid down in Annex VI in
determining the bodies to be designated.
Member States shall notify the Commission of the authorities established
within their territory which are to carry out the surveillance tasks related
to the operation of this Directive.
The Commission shall publish a list of the notified bodies, together with
their identification numbers and the tasks for which they have been
notified, in the Official Journal of the European Communities. The
Commission shall also publish a list of surveillance authorities in the
provide the Commission with all information necessary to keep these
lists up to date.
CHAPTER III
CE CONFORMITY MARKING AND INSCRIPTIONS
Article 12
CE marking
e. Apparatus complying with all relevant essential requirements shall bear
the EC conformity marking referred to in Annex VII. It shall be affixed
under the responsibility of the manufacturer, his authorized representa-
tive within the Community or the person responsible for placing the
apparatus on the market.
Where the procedures identified in Annex III, [IV or V are used, the
marking shall be accompanied by the identification number of the
notified body referred to in Article 11(1). Radio equipment shall in
addition be accompanied by the equipment class identifier where such
indentifier has been assigned. Any other marking may be affixed to the
equipment provided that the visibility and legibility of the EC marking is
not thereby reduced.
No apparatus, whether or not it complies with the relevant essential
requirements, may bear any other marking which is likely to deceive third
parties as to the meaning and form of the EC marking specified in Annex
VIL.
The competent Member State shall take appropriate action against any
person who has affixed a marking not in conformity with paragraphs 1
and 2. If the person who affixed the marking is not identifiable,
appropriate action may be taken against the holder of the apparatus at
the time when non-compliance was discovered.
Apparatus shall be identified by the manufacturer by means of type,
batch and/or serial numbers and by the name of the manufacturer or the
person responsible for placing the apparatus on the market.
CHAPTER IV
THE COMMITTEE
Article 13
Constitution of the committee
The Commission shall be assisted by a committee, the Telecommunication
Conformity Assessment and Market Surveillance Committee (TCAM), com-
posed of representatives of the Member States and chaired by a representative
of the Commission.
Article 14
Advisory committee procedure
l. The committee shall be consulted on the matters covered by Articles 5,
6(2), 7(4), 9(4) and Annex VII(5).
De The Commission shall consult the committee periodically on the surveil-
lance tasks related to the application of this Directive, and, where
appropriate, issue guidelines on this matter.
minutes.
its opinion has been taken into account and decide within one month
after having received the opinion of the committee.
1999/S/EC 333
4. The Commission shall periodically consult the representatives of the

telecommunications networks providers, the consumers and the manu-
facturers. It shall keep the committee regularly informed of the outcome
of such consultations.
Article 15
Regulatory committee procedure
bk. Notwithstanding the provisions of Article 14, the following procedure
shall apply in respect of the matters covered by Articles 3(3) and 4(1).
2. The representative of the Commission shall submit to the committee a
Article.
The chairman shall not vote.
accordance with the opinion of the committee. If the measures envisaged
are not in accordance with the opinion of the committee, or if no opinion
is delivered, the Commission shall, without delay, submit to the Council a
proposal relating to the measures to be taken. The Council shall act by a
qualified majority.
If, on the expiry of a period of three months from the date of referral to
CHAPTER V
FINAL AND TRANSITIONAL PROVISIONS
Article 16
Third countries
encountered, de jure or de facto, by Community undertakings with
respect to placing on the market in third countries, which have been
brought to their attention.
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 undertakings in
these third countries. The Council shall decide by qualified majority.
Measures taken pursuant to paragraph 2 shall be without prejudice to the
obligations of the Community and of the Member States under relevant
Article 17
Review and reporting
The Commission shall review the operation of this Directive and report
thereon to the European Parliament and to the Council, on the first occasion
not later than 7 October 2000 18 months after the entry into force of this
Directive and every third year thereafter. The report shall cover progress on
drawing up the relevant standards, as well as any problems that have arisen in
the course of implementation. The report shall also outline the activities of the
committee, assess progress in achieving an open competitive market for
apparatus at Community level and examine how the regulatory framework
for the placing on the market and putting into service of apparatus should be
developed to:
(a) ensure that a coherent system is achieved at Community level for all
apparatus;
(b) allow for convergence of the telecommunications, audiovisual and
information technology sectors;
(c) enable harmonisation of regulatory measures at international level.
It shall in particular examine whether essential requirements are still
necessary for all categories of apparatus covered and whether the
procedures contained in Annex IV, third paragraph, are proportionate
to the aim of ensuring that the essential requirements are met for
apparatus covered by that Annex. Where necessary, further measures
may be proposed in the report for full implementation of the aim of the
Directive.
Article 18
Transitional provisions
1% Standards under Directive 73/23/EEC or 89/336/EEC whose references
have been published in the Official Journal of the European Communities
may be used as the basis for a presumption of conformity with the
essential requirements referred to in Article 3(1)(a) and Article 3(1)(b).
Common technical regulations under Directive 98/13/EC whose refer-
ences have been published in the Official Journal of the European
Communities may be used as the basis for a presumption of conformity
with the other relevant essential requirements referred to in Article 3. The
Commission shall publish a list of references to those standards in the
Official Journal of the European Communities immediately after this
Directive enters into force.
Member States shall not impede the placing on the market and putting
into service of apparatus which is in accordance with the provisions in
Directive 98/13/EC or rules in force in their territory and was placed on
the market for the first time before this Directive entered into force or at
the latest two years after this Directive entered into force.
Apart from the essential requirements referred to in Article 3(1), the
Member States may request to continue, for a period of up to 30 months
LODGLIFEEC 335
following the date referred to in the first sentence of Article 19(1), and in
conformity with the provisions of the Treaty, to require telecommunica-
tions terminal equipment not to be capable of causing unacceptable
deterioration of a voice telephony service accessible within the frame-
work of the universal service as defined in Directive 98/10/EC.
The Member State shall inform the Commission of the reasons for
requesting a continuation of such a requirement, the date by which the
service concerned will no longer need the requirement, and the measures
envisaged in order to meet this deadline. The Commission shall consider
the request taking into account the particular situation in the Member
State and the need to ensure a coherent regulatory environment at
Community level, and shall inform the Member State whether it deems
that the particular situation in that Member State justifies a continuation
and, if so, until which date such continuation is justified.
Article 19
Transposition
ie Member States shall not later than 7 April 2000 adopt and publish the
laws, regulations and administrative provisions necessary to comply with
this Directive. They shall forthwith inform the Commission thereof. They
shall apply these provisions as from 8 April 2000.
reference shall be laid down by Member States.
domestic law which they adopt in the field covered by this Directive.
Article 20
Repeal
1. Directive 98/13/EC is hereby repealed as from 8 April 2000.
2. This Directive is not a specific directive within the meaning of Article
2(2) of Directive 89/336/EEC. The provisions of Directive 89/336/EEC
shall not apply to apparatus falling within the scope of this Directive,
with the exception of the protection requirements in Article 4 and Annex
III and the conformity assessment procedure in Article 10(1) and (2) of,
and Annex I to, Directive 89/336/EEC, as from 8 April 2000.
3. The provisions of Directive 73/23/EEC shall not apply to apparatus
falling within the scope of this Directive, with the exceptions of the
objectives with respect to safety requirements in Article 2 and Annex I
and the conformity assessment procedure in Annex III, Section B, and
Annex IV to Directive 73/23/EEC, as from 8 April 2000.
Article 2]
Entry into force
This Directive shall enter into force on the day of its publication in the Official
Journal of the European Communities.
Article 22
Addressees
Done at Brussels, 9 March 1999

The President
J. M. GIL-ROBLES
For the Council

The President
W. RIESTER
(1) OJ C 248, 14.8.1997, p. 4.

Q) OFC 73; 9:3:1998,,.p; 10:
(3) Opinion of the European Parliament of 29 January 1998 (OJ C 56, 23.2.1998, p. 27), Council
common position of 8 June 1998 (OJ C 227, 20.7.1998, p. 37) and Decision of the European
Parliament of 6 October 1998 (OJ C 328, 26.10.1998, p. 32). Decision of the Council of 25
January 1999 and Decision of the European Parliament of 10 February 1999.
(4) OJL74, 12.3.1998, p. 1.
©) OJ 367, 31.12.1994, p.1.
(6) OJL 101, 1.4.1998, p. 24.
(7) OJ L 77, 26.3.1973, p. 29. Directive as amended by Directive 93/68/EEC (OJ L 220,
30.8.1993, p. 1).
(8) OJ L 139, 23.5.1989, p. 19. Directive as last amended by Directive 93/68/EEC.
(9) OJ L 131, 27.5.1988, p. 73. Directive as amended by Directive 94/46/EC (OJ L 268,
19.10.1994, p. 15).
(10) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998,
p. 18).
(11) OJ L 210, 7.8:1985, p. 29.
(12) OJ L 220, 30.8.1993, p. 23.
(13)—OJ L 220, 30.8.1993, p. 23.
(14) OJ C 102, 4.4.1996, p. 1.
(15). OF.E 1695912279935 pel.
(16) OJ L 152, 6.7.1972, p. 15. Directive as last amended by Commission Directive 95/54/EC (OJ
L 266, 8.11.1995, p. 1).
(17) OJ L 225, 10.8.1992, p. 72. Directive as amended by the 1994 Act of Accession.
L999 S/EC 337
ANNEX I
Equipment not covered by this Directive as referred to in Article 1(4)
Radio equipment used by radio amateurs within Article 1, definition 53,

of the International Telecommunications Union (ITU) radio regulations
unless the equipment is available commercially.
Kits of components to be assembled by radio amateurs and commercial
equipment modified by and for the use of radio amateurs are not
regarded as commercially available equipment.
Equipment falling within the scope of Council Directive 96/98/EC of 20
December 1996 on marine equipment [1].
Cabling and wiring.
Receive only radio equipment intended to be used solely for the reception
of sound and TV broadcasting services
Products, appliances and components within the meaning of Article 2 of
Council Regulation (EEC) No 3922/91 of 16 December 1991 on the
harmonisation of technical requirements and administrative procedures
in the field of civil aviation [2].
Air-traffic-management equipment and systems within the meaning of
Article 1 of Council Directive 93/65/EEC of 19 July 1993 on the
definition and use of compatible technical specifications for the procure-
ment of air-traffic-management equipment and systems [3].
(1) OJ L 46, 17.2.1997, p. 25.

(2) OJ L 373, 31.12.1991, p. 4. Regulation as amended by Commission Regulation (EC) No
2176/96 (OJ L 291, 14.11.1996, p. 15).
(3) OJ L 187, 29.7.1993, p. 52. Directive as last amended by Commission Directive 97/15/EC
(OJ L 95, 10.4.1997, p. 16).
ANNEX II
Conformity assessment procedure referred to in Article 10(3)
Module A (internal production control)
This module describes the procedure whereby the manufacturer or his

authorised representative established within the Community, who carries
out the obligations laid down in point 2, ensures and declares that the
products concerned satisfy the requirements of this Directive that apply
to them. The manufacturer or his authorised representative established
within the Community must affix the CE marking to each product and
draw up a written declaration of conformity.
The manufacturer must establish the technical documentation described
in point 4 and he or his authorised representative established within the
Community must keep it for a period ending at least 10 years after the
last product has been manufactured at the disposal of the relevant
national authorities of any Member State for inspection purposes.
3. Where neither the manufacturer nor his authorised representative is

documentation available is the responsibility of the person who places the
product on the Community market.
4. The technical documentation must enable the conformity of the product
with the essential requirements to be assessed. It must cover the design,
manufacture and operation of the product, in particular:
_ a general description of the product,
- conceptual design and manufacturing drawings and schemes of
components, sub-assemblies, circuits, etc.,
= descriptions and explanations necessary for the understanding of
said drawings and schemes and the operation of the product,
-- a list of the standards referred to in Article 5, applied in full or in
part, and descriptions and explanations of the solutions adopted to
meet the essential requirements of the Directive where such stan-
dards referred to in Article 5 have not been applied or do not exist,
= results of design calculations made, examinations carried out, etc.,
= test reports.
5. The manufacturer or his authorised representative must keep a copy of
the declaration of conformity with the technical documentation.
6. The manufacturer must take all measures necessary in order that the
manufacturing process ensures compliance of the manufactured products
with the technical documentation referred to in point 2 and with the
requirements of this Directive that apply to them.
ANNEX III
(Internal production control plus specific apparatus tests) [1]
This Annex consists of Annex II, plus the following supplementary require-
ments:
For each type of apparatus, all essential radio test suites must be carried out by
the manufacturer or on his behalf. The identification of the test suites that are
considered to be essential is the responsibility of a notified body chosen by the
manufacturer except where the test suites are defined in the harmonised
standards. The notified body must take due account of previous decisions
made by notified bodies acting together.
The manufacturer or his authorised representative established within the

Community or the person responsible for placing the apparatus on the market
must declare that these tests have been carried out and that the apparatus
complies with the essential requirements and must affix the notified body’s
identification number during the manufacturing process.
(1) Annex based on Module A with additional requirements appropriate to the sector.
L99QISIEC 339
ANNEX IV
(Technical construction file)
This Annex consists of Annex III plus the following supplementary require-
ments:
The technical documentation described in point 4 of Annex II and the

declaration of conformity to specific radio test suites described in Annex III
must form a technical construction file.
The manufacturer, his authorised representative established within the Com-
munity or the person responsible for placing the apparatus on the market, must
present the file to one or more notified bodies, each of the notified bodies must
be informed of others who have received the file.
The notified body must review the file and if it is considered that it has not been
properly demonstrated that the requirements of the Directive have been met,
the notified body may issue an opinion to the manufacturer, his representative
or the person responsible for placing the apparatus on the market and must
inform the other notified bodies who have received the file accordingly. Such an
opinion must be given within four weeks of receipt of the file by the notified
body. On receipt of this opinion, or after the end of the four-week period, the
apparatus may be placed on the market, without prejudice to Articles 6(4) and
9(5).
The manufacturer or his authorised representative established within the
Community or the person responsible for placing the apparatus on the market
must keep the file for a period ending at least 10 years after the last apparatus
has been manufactured at the disposal of the relevant national authorities of
any Member States for inspection.
ANNEX V
Conformity assessment procedure referred to in Article 10

1. Full quality assurance is the procedure whereby the manufacturer who
The manufacturer must affix the marks referred to in Article 12(1) to each
product and draw up a written declaration of conformity.
2. The manufacturer must operate an approved quality system for design,
3 and must be subject to surveillance as specified in point 4.
3. Quality system
Saly The manufacturer must lodge an application for assessment of his
quality system with a notified body. The application must include:
~ all relevant information for the products envisaged,
- the quality system’s documentation.
yids The quality system must ensure compliance of the products with the
requirements of the Directive that apply to them. All the elements,
requirements and provisions adopted by the manufacturer must be
documented in a systematic and orderly manner in the form of
written policies, procedures and instructions. This quality system
documentation must ensure a common understanding of the quality
policies and procedures such as quality programmes, plans, man-
uals and records.
It must contain in particular an adequate description of:
— the quality objectives and the organisational structure, re-
= the technical specifications, including the harmonised stan-
referred to in Article 5(1) will not be applied in full, the means
that will be used to ensure that the essential requirements of
the Directive that apply to the products will be met,- the
design control and design verification techniques, processes
and systematic actions that will be used when designing the
products pertaining to the product category covered,
- the corresponding manufacturing, quality control and quality
will be used,
= the examinations and tests that will be carried out before,
during and after manufacture, and the frequency with which
they will be carried out, as well as the results of the tests
carried out before manufacture where appropriate,
— the means by which it is ensured that the test and examination
= the quality records, such as inspection reports and test data,
cerned, etc.,
— the means to monitor the achievement of the required design
system.
1999/5/EC 34)
3558 The notified body must assess the quality system to determine
whether it satisfies the requirements referred to in point 3.2. It must
systems that implement the relevant harmonised standard.
The notified body must assess in particular whether the quality
supplied in respect of points 3.1 and 3.2 including, where relevant,
The auditing team must have at least one member experienced as an
assessor in the product technology concerned.
The evaluation procedure must include an assessment visit to the
manufacturer’s premises.
The decision must be notified to the manufacturer. The notification
must contain the conclusions of the examination and the reasoned
3.4. The manufacturer must undertake to fulfil the obligations arising
rerhains adequate and efficient.
The manufacturer or his authorised representative must keep the
The notified body must evaluate the modifications proposed and
requirements referred to in point 3.2 or whether a reassessment is
required.
It must notify its decision to the manufacturer. The notification
must contain the conclusions of the examination and the reasoned
4. EC surveillance under the responsibility of the notified body
system.
4.2. The manufacturer must allow the notified body access for inspec-
and testing, and storage and must provide it with all necessary
— the quality records as foreseen by the design part of the
etes

cerned, etc.
4.3. The notified body must carry out audits at reasonable intervals to
system and must provide an audit report to the manufacturer.
functioning of the quality system where necessary; it must provide
5. The manufacturer must, for a period ending at least 10 years after the last
authorities:
~ the documentation referred to in the second indent of point 3.1,
- the updating referred to in the second paragraph of point 3.4,
= the decisions and reports from the notified body which are referred
to in the final paragraph of point 3.4 and in points 4.3 and 4.4.
6. Each notified body must make available to the other notified bodies the
relevant information concerning quality system approvals including
references to the product(s) concerned, issued and withdrawn.
ANNEX VI
Minimum criteria to be taken into account by Member States when designating
notified bodies in accordance with Article 11(1)
1. The notified body, its director and the staff responsible for carrying out
the tasks for which the notified body has been designated must not be a
designer, manufacturer, supplier or installer of radio equipment or
telecommunications terminal equipment, or a network operator or a
service provider, nor the authorised representative of any of such parties.
They must be independent and not become directly involved in the
design, construction, marketing or maintenance of radio equipment or
telecommunications terminal equipment, nor represent the parties en-
gaged in these activities. This does not preclude the possibility of
exchanges of technical information between the manufacturer and the
notified body.
2. The notified body and its staff must carry out the tasks for which the
judgement or the results of any inspection, especially from persons or
1999/5/EC 343
The notified body must have at its disposal the necessary staff and
The staff responsible for inspections must have:
- sound technical and professional training,
- satisfactory knowledge of the requirements of the tests or inspec-
tions that are carried out and adequate experience of such tests or
inspections,
— the ability to draw up the certificates, records and reports required
to authenticate the performance of the inspections.
The impartiality of inspection staff must be guaranteed. Their remunera-
The notified body must take out liability insurance unless its liability is
assumed by the Member State in accordance with national law, or the
Member State itself is directly responsible.
The staff of the notified body is bound to observe professional secrecy
a-vis the competent administrative authorities of the Member State in
which its activities are carried out) under this Directive or any provision
of national law giving effect thereto.
ANNEX VII
Marking of equipment referred to in Article 12(1)
The CE conformity marking must consist of the initials ‘CE’ taking the
following form:
> PIC FILE= ‘L.1999091EN.002702.EPS’ >
If the CE marking is reduced or enlarged, the proportions given in the
above graduated drawing must be respected.
The CE marking must have a height of at least 5 mm except where this is
not possible on account of the nature of the apparatus.
The CE marking must be affixed to the product or to its data plate.
Additionally it must be affixed to the packaging, if any, and to the
accompanying documents.
The CE marking must be affixed visibly, legibly and indelibly.
The equipment class identifier must take a form to be decided by the
Commission in accordance with the procedure laid down in Article 14.
Where appropriate it must include an element intended to provide
information to the user that the apparatus makes use of radio frequency
bands where their use is not harmonised throughout the Community.
It must have the same height as the initials ‘CE’.
Joint Declaration of the European Parliament, the Council and the Commis-
sion
The European Parliament, the Council and the Commission recognise the
importance of the requirement relating to the prevention of harm to the
network or its functioning which causes an unacceptable degradation of service
taking into account in particular the need to safeguard the interests of the
consumer.
Therefore, they note that the Commission will carry out a continuous
assessment of the situation in order to evaluate whether that risk occurs
frequently and, in such a case, to find an appropriate solution in the framework
of the Committee acting in accordance with the procedure laid down in Article
15:
Such a solution will, where appropriate, consist of the systematic application of
the essential requirement provided for in Article 3(3)(b).
Furthermore, the European Parliament, the Council and the Commission state
that the procedure described above applies without prejudice to the possibi-
lities foreseen in Article 7(5) and to the development of voluntary certification
and marking schemes to prevent either the degradation of service or any harm
to the network.
1.1.2. Satellite Communications Specific Documents
COUNCIL RESOLUTION OF 19 DECEMBER I99I ON THE DEVELOPMENT OF THE

COMMON MARKET FOR SATELLITE COMMUNICATIONS SERVICES AND EQUIPMENT
(92/C8/o1)
Official Journal No. C 008, 14/01/1992 P. 0001 — 0002

Having regard to the Green Paper on the development of the common market
for telecommunications services and equipment,
Having regard to the Green Paper on a common approach in the field of
satellite communications in the European Community,
Having regard to the opinions of the telecommunications and broadcasting
sector, telecommunications and space industry, the trade unions and in
particular the users and service providers,
Whereas the Green Paper on the development of the common market for
telecommunications services and equipment and its subsequent implementa-
tion action plan accord priority to the working out of a common European
position regarding the future regulation and development of satellite commu-
nications in the Community;
Whereas the Council resolution of 30 June 1988 on the development of the
common market for telecommunications services and equipment [1] declares
as a policy goal in telecommunications the ‘working out of a common position
on satellite communications, so that this new information medium can develop
in a favourable environment, taking account of the general rules of operation
and exploitation of the network environment, as well as the competition rules
of the Treaty and existing international commitments of the Member States’;
Whereas, subsequently, a number of Directives, recommendations, resolutions
and Decisions have been adopted to devise and implement a European
telecommunications policy, the principles of which should be extended to the
fields of satellite communications;
Whereas the Community must adopt measures with the aim of progressively
establishing the internal market, over a period expiring on 31 December 1992;
whereas, to this end, the present resolution defines an action plan for the
progressive achievement of a competition-oriented Community-wide satellite
communications market and the strengthening of European competitiveness in
this field;
Whereas the social, regional and trade aspects must be kept carefully in mind
during the progressive implementation of such a plan of action, particularly by
345
taking into account the need for transitional periods with respect to liberal-
ization policies in certain Member States, where they are justified by the level of
development of their terrestrial networks;
Whereas the industrial aspects must be kept carefully in mind, including the
need for an internationally competitive European industry in the field of
satellite communications;
Whereas the access to space capacity of separate satellite systems should be left
to the providers of that capacity,
WITHOUT PREJUDICE TO FUTURE DECISIONS, CONSIDERS THE

FOLLOWING POINTS AS MAJOR GOALS IN SATELLITE
TELECOMMUNICATIONS POLICY:
1. harmonization and liberalization for appropriate satellite earth stations,
including where applicable the abolition of exclusive or special rights in
this area, subject in particular to conditions necessary for compliance
with essential requirements;
2. harmonization and liberalization as far as required to facilitate the
provision and use of Europe-wide satellite telecommunications services
subject, where applicable, to conditions necessary for compliance with
essential requirements and special or exclusive rights;
3. separation in all Member States of regulatory and operational functions
in the field of satellite communications;
4. improved access to the space segment and access to the space capacity of
intergovernmental organizations operating satellite systems and effective
and accelerated procedures for the establishment of and access to
separate satellite systems;
THEREFORE GIVES ITS SUPPORT:

to the general goals of the Commission’s Green Paper on a common approach
in the field of satellite communications in the European Community;
NOTES WITH INTEREST THE INTENTION OF THE COMMISSION:

1. to propose, where required, the measures necessary to achieve the goals
set out under 1, 2 and 3 above, in particular for the creation of a
competitive common market for satellite telecommunications services
and equipment and taking account of the different situations of national
terrestrial networks and also of the existing international commitments
of Member States and the necessity of international cooperation in this
field as well as of the external dimension of these measures.
These should include measures on the basis of the appropriate Commu-
nity procedures:
(a) for the extension of the principles concerning competition in the
markets for telecommunications terminal equipment and telecom-
92/C 8/01 347
munications services to aspects of trade and use of the appropriate

satellite earth stations before 1 January 1993;
(b) for the approximation of the laws in the Member States concerning
appropriate satellite earth stations including the mutual recognition
of their conformity in line with the principles already established for
telecommunications terminal equipment, before | January 1993;
(c) for the establishment of a harmonized regulatory framework for the
licensing of satellite networks and satellite services, before 1
January 1993;
(d) for strengthened cooperation with CEPT following the principles of
the Council resolution of 28 June 1990 [2] with respect to the
frequency aspects of the provision of satellite services in the
Community;
(e) to ensure the free circulation and transborder use of mobile and
transportable satellite earth stations throughout the Community,
before 1 January 1993;
to analyse the effects of the abovementioned measures on the European
satellite communications industry and to make proposals, as required,
with the aim of establishing competitiveness with regard to third
countries, in particular in the following areas:
_ relations with third countries,
- standards processes,
- research programmes;
to report periodically on the progress made with regard to the implemen-
tation of the abovementioned measures;
INVITES THE MEMBER STATES to work as quickly as possible towards:
i. the development of effective, non-discriminatory and accelerated proce-
dures for the establishment of separate satellite systems;
Dy the improvement and broadening of access to the space segments of
intergovernmental organizations operating satellite systems, taking ac-
count of the special or exclusive rights for the provision of public
telecommunications services and working along the following lines of
action:
- active participation of the Member States within the intergovern-
mental organizations operating satellite systems to work towards
that goal,
- the development of effective procedures, e.g. along the line of
Signatories Affairs Offices, as an initial step,
~ drawing up conditions for fair, non-discriminatory and transparent
access to space capacity for earth segment operators.
(1) OJ No C 257, 4. 10. 1988, p. 1.

(2) OJ No C 166, 7.7. 1990, p. 4.
EUROPEAN PARLIAMENT RESOLUTION OF 19 JANUARY 1993 ON A COMMON
APPROACH IN THE FIELD OF SATELLITE COMMUNICATIONS IN THE EUROPEAN
COMMUNITY (A3-0344/92)
The European Parliament

~ having regard to the motion for a resolution by Mr Beumer on a common
approach in the field of satellite communications in the European
Community (B3-0861/91).
= having regard to the Commission communication containing a Green
Paper on a common approach in the field of satellite communications in
the European Community (COM(90)0490).
— having regard to the report of the Community on Economic and
Monetary Affairs and Industrial Policy (A3-0344/92).
1. Calls on the Commission to propose the appropriate legislation in order
to exploit fully the potential of satellite communications for the comple-
tion of the internal market and the continental dimension resulting from
developments in Central and Eastern Europe;
2. Calls on the Commission to create the environment to enable existing
constraints to be removed and new activities developed in the field of
satellite communications;
3. Stresses that accommodation on the part of all states, with due regard for
GATT, will maximize the opening-up of the markets for satellite commu-
nications;
4. Stresses that the tasks to be carried out can be solved only as part of a
common strategy for satellite communications;
5. Stresses the need to harmonize and liberalize the operation of satellite
terminal equipment for which this is appropriate, abolishing exclusive or
special rights in this area, where necessary, and laying down special
conditions governing compliance with essential requirements;
6. Stresses the need to harmonize and liberalize the provision and utilization
of trans-European satellite communications services to the extent re-
quired, laying down conditions governing compliance with essential
requirements and governing the granting of special or exclusive rights;
7. Considers it necessary that regulatory and operational functions be
separated in the field of satellite communications in all Member States
in order to prevent the unrestricted development of private providers
from being considerably hampered;
8. Considers it necessary that access to space segment be improved both as
regards the use of segment capacity of the international organizations
which operate satellite systems and as regards the development of
separate satellite systems and access to them;
9. Instructs its President to forward this resolution to the Council, the
Commission and the parliaments of the Member States.
348
COUNCIL DIRECTIVE OF 29 OCTOBER 1993 SUPPLEMENTING DIRECTIVE 91/
263/EEC IN RESPECT OF SATELLITE EARTH STATION EQUIPMENT (93/97/EEC)
Official Journal No. L290, 24/11/1993


(1) Whereas the Commission has issued a Green Paper on a common

approach in the field of satellite communications in the Community proposing
the introduction of mutual recognition of type approval for satellite earth
station equipment as one of the major preconditions for, inter alia, a
Community-wide market for satellite earth station equipment;
(2) Whereas the Council resolution of 19 December 1991 on the development

of a common market for satellite communications services and equipment [4]
considers as one of the major goals in satellite telecommunications policy the
harmonization and liberalization of appropriate satellite earth station equip-
ment, subject, in particular, to conditions necessary for compliance with
essential requirements;
(3) Whereas that resolution notes with interest the intention of the Commis-
sion to propose measures for the approximation of the laws of the Member
States concerning the appropriate satellite earth station equipment, including
the mutual recognition of their conformity, in line with the principles already
established in Directive 91 /263/EEC;
(4) Whereas the goal of an advanced, open Community-wide market for
satellite earth station equipment requires effective and efficient harmonized
procedures for certification, testing, marking, quality assurance and product
surveillance; whereas the alternative to Community legislation is an analogous
system of provisions negotiated between Member States, which would involve
obvious difficulties because of the number of organisms which would be
involved in multiple bilateral negotiations; whereas this is not practicable,
rapid or efficient; whereas therefore the objectives of the proposed action
cannot be sufficiently achieved by the Member States; whereas on the contrary
the form of a Community directive has repeatedly shown itself, in the sector of
telecommunications among others, as a practicable, rapid and efficient means;
whereas the objective of the action under consideration can therefore be better
achieved at Community level;
349
(5) Whereas Community law in its present form provides, notwithstanding

one of the fundamental rules of the Community, namely the free movement of
goods, that obstacles to movement within the Community, resulting from
disparities in national legislations relating to the marketing of products, must
be accepted in so far as such requirements can be recognized as being necessary
to satisfy essential requirements; whereas, therefore, the harmonization of laws
in this case must be limited only to those requirements necessary to satisfy the
essential requirements relating to satellite earth station equipment; whereas
these requirements must replace the relevant national requirements because
they are essential;
(6) Whereas Council Directive 73/23/EEC of 19 February 1973 on the
harmonization of the laws of the Member States relating to electrical equip-
ment designed for use within certain voltage limits [6] and Council Directive
83/189/EEC of 28 March 1983 laying down a procedure for the provision of
information in the field of technical standards and regulations [7], are
applicable, inter alia, to the fields of telecommunications and information
technology;
(7) Whereas Directive 73/23/EEC in general also covers safety of persons;

(8) Whereas Council Directive 89/336/EEC of 3 May 1989 on the approx-
imation of the laws of the Member States relating to electromagnetic compat-
ibility [8] sets out harmonized procedures for the protection of apparatus by
electromagnetic disturbances and defines the protection requirements and
inspection procedures relating thereto; whereas the general requirements of
that Directive also apply to satellite earth station equipment; whereas electro-
magnetic compatibility requirements are covered by this Directive in so far as
they are specific to satellite earth station equipment;
(9) Whereas Decision 87/95/EEC sets out the measures to be implemented

for the promotion of standardization in Europe and the preparation and
implementation of standards in the field of information technology and
telecommunications;
(10) Whereas bearing in mind the essential requirements, it is desirable in
order to help manufacturers to prove conformity with these essential require-
ments, to have standards harmonized at European level to safeguard the
general interest in the design and manufacture of satellite earth station
equipment and allow checks on conformity with these essential requirements;
whereas these standards harmonized at European level are drawn up by
private-law bodies and must retain their non-binding status; whereas for this
purpose the European Committee for Standardization (CEN), the European
Committee for Electrotechnical Standardization (Cenelec) and the European
Telecommunications Standards Institute (ETSI) are the bodies recognized as
competent to adopt harmonized standards;
DSOT/EEC 35)
(11) Whereas the proposals for common technical regulations are, as a

general rule, drawn up on the basis of harmonized standards, and, in order to
ensure appropriate technical coordination on a broad European basis, of
additional consultations, in particular with the Telecommunications Regula-
tions Application Committee (TRAC);
(12) Whereas Directive 91/263/EEC introduced the full mutual recognition

of type approval for telecommunications terminal equipment and established
the Approvals Committee for Terminal Equipment (ACTE) composed of
representatives of the Member States and chaired by the representative of the
Commission to assist the Commission in executing the tasks entrusted to it by
that Directive;
(13) Whereas Directive 91/263/EEC does not explicitly apply to satellite

earth station equipment;
(14) Whereas it is therefore necessary to extend to satellite earth station

equipment the principles already established in that Directive in relation to
telecommunications terminal equipment;
(15) Whereas the scope of this Directive must be based on a general

definition of the term ‘satellite earth station equipment’ so as to allow the
technical development of products; whereas the scope excludes purpose-built
satellite earth station equipment intended for use as part of the public
terrestrial telecommunications network; whereas this is intended to exclude,
inter alia, gateway satellite earth stations for major trunking applications
within the context of the infrastructure provision (such as large size diameter
stations) and satellite tracking and control earth stations;
(16) Whereas this Directive does not affect current special or exclusive rights
concerning satellite communications which may in accordance with Commu-
nity law, be retained by the Member States;
(17) Whereas satellite earth station equipment is configured, as far as its
interface to the space-based system is concerned, either for the transmission of
radio communications signals or for both the transmission and reception of
radio-communications signals, or for the reception-only of radio-communica-
tions signals;
(18) Whereas satellite earth station equipment is, as far as the terrestrial
interface is concerned, either intended for, or not intended for terrestrial
connection to the public telecommunications network;
(19) Whereas orbits (such as the geo-stationary orbit, low earth orbits and
elliptical orbits) are paths in space described by satellites or other space-based
systems, and are limited, nature-given resources;
(20) Whereas orbital resources are used in conjunction with the radio
frequency spectrum which is also a limited, nature-given resource; whereas
transmitting satellite earth station equipment makes use of both these

resources;
(21) Whereas the effective use of orbital resources in conjunction with the
radio frequency spectrum and avoidance of harmful interference between
space-based and terrestrial communications systems and other technical
systems is of importance for the development of European satellite commu-
nications; whereas the International Telecommunications Union (ITU) estab-
lishes criteria for effective use of orbital resources as well as for radio-
coordination to enable space and terrestrial systems to co-exist without undue
interference;
(22) Whereas harmonizing conditions for the placing on the market of
satellite earth station equipment will create the conditions for an open and
unified market and further will achieve an effective use of orbital resources and
the radio frequency spectrum and facilitate avoidance of harmful interference
between space-based and terrestrial communications systems and other
technical systems;
(23) Whereas in respect of the essential requirements related to effective use
of orbital resources and the radio frequency spectrum, and avoiding harmful
interference with space-based and terrestrial communications systems and
other technical systems, it is in general not possible to comply with such
requirements other than by the application of special technical solutions;
whereas common technical regulations are therefore necessary;
(24) Whereas the parameters for the use of the frequency spectrum by
transmitters are covered by the essential requirements in Article 4 (c) and (e)
of Directive 91/263/EEC, with the test methods and the limit values being
specified in conjunction with the technical features of the specific equipment;
(25) Whereas satellite earth station equipment, capable of being used for
transmission or for transmission and reception of radio-communications
signals, may be subject to licensing terms, in addition to the provisions of this
Directive;
(26) Whereas satellite earth station equipment, only capable of being used for
reception of radio-communications signals, shall not be subject to licensing
terms but only to the provisions of this Directive unless they are intended for
terrestrial connection to the public telecommunications network, as proposed
in the Green Paper on satellite communications in the European Community;
whereas the use of such satellite earth station equipment must be in conformity
with national regulations, compatible with Community law;
(27) Whereas real, comparable access to third country markets, in particular

the United States of America and Japan, for European manufacturers should
preferably be achieved through multilateral negotiations within the GATT,
93/97 /EEC 353
although bilateral talks between the Community and third countries may also
contribute to this process;
(28) Whereas representatives of the telecommunication organizations, users,
consumers, manufacturers, service providers and the trade unions should have
the right to be consulted;
(29) Whereas the addressees of any decision taken under this Directive must
be informed of the reasons for such a decision and the means of appeal open to
them;
(30) Whereas transitional arrangements are required in order that the

manufacturers have the necessary time to adapt the design and production of
satellite earth station equipment to the common technical regulations; whereas
in order to have the necessary flexibility the transition arrangements must be
worked out on a case-by-case basis; whereas the common technical regulations
shall lay down the necessary transition arrangements;
(31) Whereas ACTE has to play an important role in the application of this
Directive; whereas it should work in close cooperation with relevant commit-
tees dealing with licence procedures for satellite network and services,

CHAPTER I
Scope, placing on the market and free circulation
Article |
1. This Directive shall apply to satellite earth station equipment as defined
in paragraph 2.
— the definitions given in Directive 91/263/EEC shall apply, where
relevant,
— satellite earth station equipment means equipment which is capable
of being used either for transmission only, or for transmission and
reception (transmit-receive), or for reception only (receive-only), of
radio-communication signals by means of satellites or other space-
based systems, but excluding purpose-built satellite earth station
equipment intended for use as part of the public telecommunica-
tions network of a Member State,
~ terrestrial connection to the public telecommunications network
means any connection to the public telecommunications network
which does not include a space segment.
3. The manufacturer of supplier of satellite earth station equipment shall
declare if the equipment is either intended for, or not intended for
terrestrial connection to the public telecommunications network.
Article 2
ihe Member States shall take all appropriate measures to ensure that receive-
only satellite earth station equipment not intended for terrestrial connec-
tion to the public telecommunications network may be placed on the
market and put into service and used on their territory, in conformity
with national law compatible with Community law, only if it complies
with the requirements of this Directive when it is properly installed and
maintained and used for its intended purposes.
Such use must be in conformity with any national law, compatible with
Community law, which restricts the use to the reception of services
intended for that user.
Member States shall take all appropriate measures to ensure that other
satellite earth station equipment may be placed on the market only if it
complies with the requirements of this Directive when it is properly
installed and maintained and used for its intended purposes. The use of
such equipment may be subject to licensing terms in conformity with
Community law.
satellite earth station equipment which is not intended for terrestrial
connection to the public telecommunications network is not permitted to
be connected to the public telecommunications network.
connection to the public telecommunications network is disconnected
from the public telecommunications network.
Member States shall moreover take all appropriate measures, according
to their national laws, to prevent terrestrial connection to the public
telecommunications network of such equipment.
Article 3
Member States shall not impede the free circulation and the placing on the
market of satellite earth station equipment conforming to the provisions of this
Directive.
Article 4
1. Satellite earth station equipment shall satisfy the same essential require-
ments as those set out in Article 4 of Directive 91/263/EEC.
2. For the purpose of this Directive, as well as Directive 91/263/EEC, the
essential requirements of Article 4 (a) of Directive 91/263/EEC shall
imply the safety of persons in the same way as in Directive 73/23/EEC.
3. In the context of transmit or transmit-receive satellite earth station
equipment, the essential requirement set out in Article 4 (e) of Directive
91/263/EEC concerning effective use of the radio frequency spectrum
shall include the effective use of orbital resources and the avoidance of
harmful interference between space-based and terrestrial communica-
tions systems and other technical systems.
Y3/9T/EEC 355
In the context of satellite earth station equipment, electromagnetic

compatibility requirements in so far as they are specific to satellite earth
station equipment shall be subject to the essential requirement set out in
Article 4 (c) of Directive 91/263/EEC.
Satellite earth station equipment shall satisfy the essential requirement set
out in Article 4 (f) of Directive 91/263/EEC, regarding the interworking
of satellite earth station equipment with the public telecommunications
network.
out in Article 4 (g) of Directive 91/263/EEC regarding the interworking
of satellite earth station equipment via the public telecommunications
network in justified cases.
Cases where satellite earth station equipment is capable of supporting and
intended to support a service for which the Council has decided that there
should be Community-wide availability are considered as justified cases
and the requirements concerning this interworking shall be determined in
accordance with the procedure laid down in Article 16 of this Directive.
Notwithstanding paragraphs 1, 5 and 6 of this Article, satellite earth
station equipment which is not intended for connection to the public
telecommunications network shall not be required to satisfy the essential
requirements set out in Article 4 (b), (d), (f) and (g) of Directive 91/263/
EEC.
Article 5
I, Member States shall presume compliance with the essential requirements
referred to in Article 4 (a) and (b) of Directive 91/263/EEC in respect of
satellite earth station equipment which is in conformity with the national
standards implementing the relevant harmonized standards, the refer-
ences of which have been published in the Official Journal of the
European Communities. Member States shall publish the references of
such national standards.
Article 16 of this Directive, adopt:
- as a first step, the measures identifying the type of satellite earth
station equipment for which a common technical regulation is
required, as well as the associated scope statement for that regula-
tion, with a view to its transmission to the relevant standardization
bodies,
~ as a second step, once they have been prepared by the relevant
standardization bodies, the corresponding harmonized standards,
to in Article 4 (2) to (5), which shall be transformed into common
Article 6
Where a Member State or the Commission considers that the harmonized
standards referred to in Article 5 of this Directiveexceed or do not entirely meet
the relevant essential requirements referred to in Article 4 of this Directive, the
same enquiry and notification procedures shall apply as those set out in Article
7 of Directive 91/263/EEC.
Article 7
1. Where a Member State finds that satellite earth station equipment
bearing the marking under the provisions laid down in Chapter III does
not comply with the relevant essential requirements when properly used
in accordance with the purpose intended by the manufacturer, the same
measures, information and consultation procedures shall apply as those
set out in Article 8 (1) (2) and (4) of Directive 91/263/EEC.
2. Where satellite earth station equipment which does not comply with the
relevant essential requirements bears the CE marking, the competent
Member State shall take appropriate action against whomsoever has
affixed the marking. The same notification procedures shall apply as
those set out in Article 8 (3) and (4) of Directive 91/263/EEC.
CHAPTER II
Article §
1. All transmit or transmit receive satellite earth station equipment shall,
according to the choice of the manufacture or his authorized representa-
tive established within the Community, be subject to all the provisions of
Article 9 (1) and (2) of Directive 91/263/EEC concerning conformity
assessment.
2. The same procedures regarding language requirements shall apply as
those set out in Article 9 (3) of Directive 91/263/EEC.
3. Article 10 (5) of Directive 89/336/EEC shall not apply to equipment
falling within the scope of this Directive or of Directive 91/263/EEC.
Article 9
Receive-only satellite earth station equipment, which is intended for terrestrial
connection to the public telecommunications network, shall, as far as its
terrestrial interface is concerned, be subject to the provisions of Article 8 (1)
concerning conformity assessment while, as far as other elements are con-
cerned, they shall be subject either to the provisions of Article 8 (1) or to the
Community internal production control procedures set out in the Annex, as far
the requirements of this Directive are concerned.
Article 10
Receive-only satellite earth station equipment which is not intended for
terrestrial connection to the public telecommunications network shall be
D3/97/EEC 357
subject either to the provisions of Article 8 (1) or to the Community internal

production control procedures set out in the Annex as far the requirements of
this Directive are concerned.
Article 11
In addition to the provisions of Articles 8, 9 and 10 of this Directive satellite
earth station equipment which is not intended for connection to the public
telecommunications network shall be accompanied by a manufacturer’s or
supplier’s declaration made and transmitted in accordance with the same
procedures as those set out in Article 2 and Annex VIII to Directive 91/263/
EEC, except that the declaration shall make a reference to this Directive
instead of Directive 91/263/EEC.
Article 12
In relation to satellite earth station equipment, the same procedures for notified
bodies and test laboratories shall apply as those set out in Article 10 and Annex
V to Directive 91/263/EEC.
CHAPTER II
CE MARKING OF CONFORMITY AND INSCRIPTIONS
Article 13
1. The marking of satellite earth station equipment complying with this
Directive shall consist of the CE marking consisting of the symbol ‘CE’,
followed by the identifying symbol of the notified body responsible and,
where relevant, a symbol indicating that the equipment is intended and is
suitable to be connected through a terrestrial connection to the public
telecommunications network. The ‘CE’ symbol and these two other
symbols shall be the same as those shown in Annex VI to Directive 91/
263/EEC.
2. The affixing of marks which are likely to be confused with the CE
marking referred to in paragraph 1| above shall be prohibited.
3. Satellite earth station equipment shall be identified by the manufacturer
by means of type, batch and/or serial numbers and by the name of the
manufacturer and/or supplier responsible for placing it on the market.
4. Notwithstanding paragraph 1, the marking of receive-only satellite earth
station equipment which is not intended for terrestrial connection to the
public telecommunications network and which has been subject to the
Community internal production control procedure set out in the Annex
as far as the requirements of this Directive are concerned, shall consist of
the CE marking, consisting of the symbol CE.
Article 14
Where it is established that the marking referred to in Article 13 (1) of this
Directive has been affixed to satellite earth station equipment which:
- does not conform to an approved type, or

requirements applicable to it, or where the manufacturer has failed to
fulfil his obligations under the relevant Community declaration of
conformity, the same procedures shall apply as those set out in Article
12 of Directive 91/263/EEC.
CHAPTER IV
COMMITTEE PROCEDURES
Article 15
ike The Approvals Committee for Terminal Equipment (hereinafter referred
to as ‘the Committee’) set up under Article 13 (1) of Directive 91/263/
EEC shall assist the Commission in implementing this Directive.
minutes.
by the Committee. The Commission shall inform the Committee of the
manner in which its opinion has been taken into account.
The Commission will periodically consult the representatives of the
telecommunications organizations, users, consumers, manufacturers,
service providers and trade unions and will inform the Committee of the
outcome of such consultations, with a view to taking due account of the
outcome.
Article 16
ike Notwithstanding Article 15 (1) and (2), the procedure laid down in the
following paragraphs shall apply for matters covered by Articles 4 (6) and
5 (2).
The representative of the Commission shall submit to the Committee set
up_under Article 14 a draft of the measures to be taken as referred to in
Articles 4 (6) and 5 (2). 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.
93/97
/BEC 359
taken. The Council shall act by a qualified majority. If, within three
months from the date referred to it, the Council has not acted, the
proposed measures shall be adopted by the Commission.
CHAPTER V
Article 17
3 The Commission shall report on the implementation of this Directive at
the same time and in the same manner as provided for in Article 15 of
The Commission shall, when submitting those draft measures referred to
in Article 5 (2) of this Directive dealing with common technical
regulations, ensure that transition arrangements, where appropriate,
form part of the draft measures.
Article 18
Directive no later than 1 May 1995. They shall forthwith inform the
Commission thereof.
Article 19
Official Journal No. L290, 24/11/1993

For the Council
The President
R. URBAIN
(1) OJ No C 4, 8.1.1993, p. 3.
(2) OJ No C 176, 28.6.1993, p. 74 and Decision of 27 October 1993 (not yet published in the
Official Journal).
(3) OJ No C 161, 14.6.1993, p. 11.
(4) OJ No C 8, 14.1.1992, p. 1.
(5) OJ No L 128, 23.5.1991, p. 1.
(6) OJ No L 77, 26.3.1973, p. 29:
(7) OJ No L 109, 26.4.1983, p. 8. Directive as last amended by Commission Decision 92/400/

EEC (OJ No L 221, 6.8.1992, p. 55).
(8) OJ No L 139, 23.5.1989, p. 19. Directive as last amended by Directive 92/31 /EEC (OJ No L
1265 11992. pa lt)):
(9) OJ No L 36, 7.2.1987, p. 31.
ANNEX
Community internal production control procedure
This Annex describes the procedure whereby the manufacturer or his

authorized representative established within the Community, who carries
out the obligations laid down in 2, ensures and declares that the products
concerned satisfy the requirements of this Directive that apply to them.
The manufacturer must affix the CE marking to each product and draw
up a written declaration of conformity.
in 3 and he or his authorized representative established within the
Community must keep it, for a period ending at least 10 years after the
last product has been manufactured, at the disposal of the relevant
national authorities for inspection purposes.
documentation available is the responsibility of the person who places the
product on the Community market.
Technical documentation must enable the conformity of the products to
be assessed against the requirements of this Directive that apply to them.
It must contain, so far as relevant for assessment:
— a general description of the product,
~ conceptual design and manufacturing drawings and lists of compo-
nents, sub-assemblies, circuits, etc.,
the said drawings and lists and the operation of the product,
- a list of the standards mentioned in Article 5 of this Directive
applied in full or as far as is relevant or, in the absence of such
standards, the technical construction file, and descriptions of the
solutions adopted to meet those requirements of this Directive that
apply to the products,
- results of design calculations made, examinations carried out, etc.,
= test reports.
The manufacturer or his authorized representative must keep a copy of

The manufacturer must take all measures necessary to ensure that the
manufacturing process ensures compliance by the manufactured pro-
ducts with the technical documentation referred to in 2 and with those
requirements of this Directive that apply to them.
COUNCIL RESOLUTION OF 7 DECEMBER 1993 ON THE INTRODUCTION OF
SATELLITE PERSONAL COMMUNICATION SERVICES IN THE COMMUNITY
(93/C 339/01)

Having regard to the Green Paper of 30 June 1987 on the development of the
common market for telecommunications services and equipment,
Having regard to the Green Paper of 29 November 1990 on a common
approach in the field of satellite communications in the European Community,
Whereas the Green Paper on a common approach proposed a future-oriented

structure for the development of satellite communications in the European
Community by outlining a framework of Community legal measures and
actions; whereas, the Council resolution of 19 December 1991 on the develop-
ment of the common market for satellite communications services and
equipment [1] gave support to the general goals set out in the Commission’s
Green Paper;
Whereas, based on further Commission proposals, the Council has adopted
Directive 93/97/EEC of 29 October 1993 supplementing Directive 91/263/
EEC concerning satellite earth station equipment [2];
Whereas the Commission communication of 23 September 1992 on the

European Community and space underlines the importance of a Community
contribution to the European space effort by helping to establish the appro-
priate conditions for the development of space applications markets and a
competitive European space industry; whereas that communication empha-
sizes the need for appropriate regulatory conditions allowing the development
of new markets for satellite communications services and the need to
encourage a competitive European space industry and promote its interests at
international level;
Whereas the planned introduction of satellite personal communications net-
works and services on a global scale will play a role in the development of
telecommunications services in the Community in general and in that of
satellite and mobile services in particular, as well as in the development of the
Community’s space and telecommunications equipment and services indus-
tries;
Whereas it is becoming increasingly evident that the types of service which are
envisaged give rise to a range of policy issues relating to the Community’s
telecommunications, trade, regional development and space policies; whereas,
therefore, the introduction of these services merits early consideration;
361
Whereas the Community’s telecommunications policy in general and the

satellite communications policy in particular underline the need for competi-
tive provision of services, in line with the rules on competition laid down in the
Treaty; whereas the dichotomy of competitive service provision and limited
availability of frequency resources will need careful consideration in any
proposed introduction scenario;
Whereas the global dimension of these systems and their role in providing
personal mobile telecommunications services as well as the related global
regulatory structure under which they are provided should play an important
part in the political considerations for the establishment of a Community
policy; whereas the global regulatory framework under which these systems
will have to operate is strategically and politically one of the most crucial
aspects to be considered,
RECOGNIZES:
1. the importance of the planned use of satellites for personal communica-
tions, and of the opportunities this may offer for European industry,
service providers, and users;
2. the global characteristics of satellite personal communications services,
in particular if provided through non-geostationary satellite systems, and
the need to clarify their particular characteristics as they affect the
European and international regulatory regimes;
3. the challenge for the Community to develop a forward-looking regula-
tory framework which allows the introduction of satellite personal
communications services, taking full account of the global nature of these
systems, and the desirability of coordinated action;
NOTING:
- that the advantages of satellite personal communications may be ex-
tended to a vast range of potential users, in particular to those who do not
have access to established services, including users in regions with a less-
developed telecommunications infrastructure,
— noting also that any policy in this area may concern all the European
conference of postal and telecommunications administrations (CEPT)
authorities, including those of central and eastern Europe;
THEREFORE STRESSES:
the importance of developing a Community policy with regard to satellite
personal communications that will build on existing policies regarding tele-
communications, in particular satellite communications, and on future policy
on mobile communications based on the Green Paper on the subject and, if
necessary, on regional development and trade policies in general;
93/C339/01, 363
INVITES THE MEMBER STATES:

to make efforts towards developing as soon as possible a Community policy
concerning satellite personal communications, and a coordinated position, in
particular within the context of international organizations, such as the
International Telecommunications Union (ITU), and in relation to third
countries;
AND INVITES THE COMMISSION:

i to investigate the significance of satellite personal communications in the
formulation of Community policies for telecommunications, space, trade,
industry and regional development;
to define, in collaboration with Member States, an effective joint policy
on those systems, with the cooperation, where appropriate, of the
European Space Agency (ESA) in order to improve the competitive
position of the European space and related telecommunications indus-
tries so as to enable operators, service providers, industry and users to
participate in a global, open market in satellite personal communications,
in accordance with Community law and the general guidelines laid down
in the said Council resolution of 19 December 1991;
to continue to monitor closely international developments, particularly in
this respect the regulatory proceedings outside the Community and to
consult, where appropriate, with non-Community countries on the
coordinated introduction of these systems at a global level;
to reinforce its cooperation with European Telecommunications Stan-
dards Institute (ETSI), European Radiocommunications Committee
(ERC) and European Committee for Telecommunications Regulatory
Matters (Ectra) in examining the related standardization, radio frequency
and licensing issues respectively;
to set up as part of the consultation process a platform for strategic
discussions among all interested parties;
to report regularly on developments in this area, in particular the
granting of licences and any other matters affecting trade in services,
and, where necessary, propose appropriate measures and/or actions.
(1) OJ No C8, 14. 1. 1992, p. 1.

(2) OJ No L 290, 24. 11. 1993, p. 1.
COMMISSION DIRECTIVE OF 13 OCTOBER 1994 AMENDING DIRECTIVE 88/301/
EEC AND DIRECTIVE 90/388/EEC IN PARTICULAR WITH REGARD TO
SATELLITE COMMUNICATIONS (94/ 46/EC)

Whereas:
1. The Green Paper on a common approach in the field of satellite commu-

nications in the European Community, adopted by the Commission in
November 1990, set out the major changes in the regulatory environment
necessary to exploit the potential of this means of communications. This
Satellite Green Paper called for, inter alia, full liberalization of the satellite
services and equipment sectors, including the abolition of all exclusive or
special nights in this area, subject to licensing procedures, as well as for the
free (unrestricted access to space segment capacity.
2. The Council Resolution of 19 December 1991 on the development of the
common market for satellite communications services and equipment [1], gave
general support to the positions set out in the Commission’s Satellite Green
Paper, and considered as major goals: the harmonization and liberalization of
the market for appropriate satellite earth stations, including where applicable
the abolition of exclusive or special rights in this field, subject in particular to
the conditions necessary for compliance with essential requirements.
3. The European Parliament, in its Resolution on the development of the
common market for satellite communications services and equipment [2] calls
upon the Commission to enact the necessary legislation in order to create the
environment to enable existing constraints to be removed and new activities
developed in the field of satellite communications, while stressing the need to
harmonize and liberalize the markets in satellite equipment and services.
4. Several Member States have already opened up certain satellite commu-

nications services to competition and have introduced licensing schemes.
Nevertheless, the granting of licences in some Member States still does not
follow objective, proportional and non-discriminatory criteria or, in the case of
operators competing with the telecommunications organizations, is subject to
technical restrictions such as a ban on connecting their equipment to be
switched network operated by the telecommunications organization. Other
Member States have maintained the exclusive rights granted to the national
public undertakings.
5. Commission Directive 88/301/EEC of 16 May 1988 on competition in the
markets in telecommunications terminal equipment [3], as amended by the
364
Agreement on the European Economic Area, provides for the abolition of

special or exclusive rights to import, market, connect, bring into service and
maintain telecommunications terminal equipment. It does not cover all types
of satellite earth station equipment.
6. In its judgment in Case C-202/88, France v. Commission [4], the Court of

Justice of the European Communities upheld Commission Directive 88/301/
EEC. However, in so far as it relates to special rights, the Directive was
declared void on the grounds that neither the provisions of the Directive nor
the preamble thereto specify the type of rights which are actually involved and
in what respect the existence of such rights is contrary to the various provisions
of the Treatry. As far as importation, marketing, connection, bringing into
service and maintenance of telecommunications equipment are concerned,
special rights are in practice rights that are granted by a Member State to a
limited number of undertakings, through any legislative, regulatory or admin-
istrative instrument which, within a given geographical area,
- limits to two or more the number of such undertaking, otherwise than
according to objective, proportional and non-discriminatory criteria, or
- designates, otherwise than according to such criteria, several competing
undertakings, or
-- confers on any undertaking or undertakings, otherwise than according to
such criteria, legal or regulatory advantages which substantially affect the
ability of any other undertaking to engage in any of the abovementioned
activities in the same geographical area under substantially equivalent
conditions.
This definition is without prejudice to the application of Article 92 of the EC

Treaty.
7. The existence of exclusive rights has the effect of restricting the free
movement of such equipment either as regards the importation and marketing
of telecommunications equipment (including satellite equipment), because
certain products are not marketed, or as regards the connection, bringing into
service or maintenance because, taking into account the characteristics of the
market and in particular the diversity and technical nature of the products, a
monopoly has no incentive to provide these services in relation to products
which it has not marketed or imported, nor to align its prices on costs, since
there is no threat of competition from new entrants. Taking into account the
fact that in most equipment markets there is typically a large range of
telecommunication equipment, and the likely development of the markets in
which there are as yet a limited number of manufacturers, any specialy right
which directly or indirectly — for example by not providing for an open and
non-discrimnatory authorization procedure — limits the number of the under-
takings authorized to import, market, connect, bring into service and maintain
such equipment, is liable to have the same kind of effect as the grant of
exclusive rights.
94/46/EEC 366
Such exclusive or special rights constitute measures having equivalent effect to

quantitative restrictions incompatible with Article 30 of the EC Treaty. None of
the specific features of satellite earth stations or of the market for their sale or
maintenance is such as to justify their being treated differently in law from
other telecommunications terminal equipment. Thus it is necessary to abolish
all existing exclusive rights in the importation, marketing, connection, bringing
into service and maintenance of satellite earth station equipment, as well as
those rights having comparable effects - that is to say, all special rights except
those consisting in legal or regulatory advantages conferred on one or more
undertakings and affecting only the ability of other undertakings to engage in
any of the abovementioned activities in the same geographical area under
substantially equivalent conditions.
8. Satellite earth station equipment must satisfy the essential requirements
harmonized by Council Directive 93/97/EEC [5] with special reference to the
efficient use of frequencies. It will be possible to monitor the application of
these essential requirements partly through the licences granted for the
provision of the services concerned. Alignment on the essential requirements
will be achieved mainly through the adoption of common technical rules and
harmonization of the conditions attached to licences. Even where these
conditions are not harmonized, Member States will nevertheless have to adapt
their rules. In either case, Member States must in the meantime ensure that the
application of such rules does not create barriers to trade.
9. The abolition of special or exclusive rights relating to the connection of

satellite earth station equipment makes it necessary to recognize the right to
connect this equipment to the switched networks operated by the telecommu-
nications organizations so that licensed operators can offer their services to the
public.
10. Commission Directive 90/388/EEC of 28 June 1990 on competition in
the markets for telecommunications services [6], as amended by the Agreement
on the EBA, provides for the abolition of special or exclusive rights granted by
Member States in respect of the provision of telecommunications services.
However, the Directive excludes satellite services from its field of application.
11. In Joined Cases C-271/90, C-281/90 and C-289/90, Spain v. Commis-
sion (7), the Court of Justice of the European Communities upheld this
Commission Directive on 17 November 1992. However, in so far as it relates
to special rights, the Directive was declared void by the Court of Justice on the
grounds that neither the provisions of the Directive nor the preamble thereto
specify the type of rights which are actually involved and in what respect the
existence of such rights is contrary to the various provisions of the Treaty.
Consequently, these rights must be defined in this Directive. As far as
telecommunications services are concerned, special rights are in practice 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,
- limits to two or more, otherwise than according to objective, propor-
tional and non-discriminatory criteria, the number of undertakings
which are authorized to provide any such service, of
= designates, otherwise than according to such criteria, several competing
undertakings as those which are authorized to provide any such service,
or
- confers on any undertaking or undertakings, otherwise than according to
such criteria, legal or regulatory advantages which substantially affect the
ability of any other undertaking to provide the same telecommunications
service in the same geographical area under substantially equivalent
conditions.
This definition is without prejudice to the application of Article 92 of the EC
Treaty.
In the field of telecommunications services, such special legal or regulatory

advantages may consist, among other things, in a right to make compulsory
purchases in the general interest, in derogations from law on town-and-country
planning, or in the possibility of obtaining an authorization without having to
go through the usual procedure.
12. Where the number of undertakings authorized to provide satellite tele-

communications services is limited by a Member State through special rights,
and a fortiori exclusive rights, these constitute restrictions that could be
incompatible with Article 59 of the Treaty, whenever such limitation is not
justified by essential requirements, since these rights prevent other under-
takings from supplying (or obtaining) the services concerned to (or from) other
Member States. In the case of satellite network services, such essential
requirements could be the effective use of the frequency spectrum and the
avoidance of harmful interference between satellite telecommunications sys-
tems a other space-based or terrestrial technical systems. Consequently,
provided that equipment used to offer the services satisfies the essential
requirement applicable to satellite communications, separate legal treatment
of the latter is not justified. On the other hand, special rights consisting only in
special legal or regulatory advantages, do not, in principle, preclude other
undertakings from entering the market. The compatibility of these rights with
the EC Treaty must therefore be assessed on a case-by-case basis, regard being
had to their impact on the effective freedom of other entities to provide the
same telecommunications service and their possible justifications regarding the
activity concerned.
13. The exclusive rights that currently exist in the satellite communications
field were generally granted to organizations that already enjoyed a dominant
position in creating the terrestrial networks, or to one of their subsidiaries.
94/46/EEC 368
Such rights have the effect of extending the dominant position enjoyed by those
organizations and therefore strengthening that position. The exclusive rights
granted in the satellite communications field are consequently incompatible
with Article 90 of the EC Treaty, read in conjunction with Article 86.
14. These exclusive rights limiting access to the market also have the effect of
restricting or preventing, to the detriment of users, the use of satellite
communications that could be offered, thereby holding back technical progress
in this area. Because their investment decisions are likely to be based on
exclusive rights, the undertakings concerned are often in a position to decide
to give priority to terrestrial technologies, whereas new entrants might exploit
satellite technology. The telecommunications organizations have generally
given preference to the development of optical-fibre terrestrial links, and
satellite communications have been used chiefly as a technical solution of last
resort in cases where the cost of the terrestrial alternatives has been prohibitive,
or for the purpose of data broadcasting and/or television broadcasting, rather
than being used as a fully complementary transmission technology in its own
right. Thus the exclusive rights imply a restriction on the development of
satellite communication, and this is incompatible with Article 90 of the Treaty,
read in conjunction with Article 86.
15. However, where the provision of satellite services is concerned, licensing
or declaration procedures are justified in order to ensure compliance with
essential requirements, subject to the proportionality principle. Licensing is not
justified when a mere declaration procedure would suffice to attain thte
relevant objective. For example, in the case of provision of a satellite service
which involves only the use of a dependent VSAT earth station in a Member
State, the latter should impose no more than a declaration procedure.
16. Article 90 (6) of the Treaty provides for an exception to Article 86 in cases
where the application of the latter would obstruct the performance, in law or
infact, of the particular tasks assigned to the telecommunications organiza-
tions. Pursuant to that provision, Directive 90/388/EEC allows exclusive
rights to be maintained for a transitional period in respect of voice telephony.
‘Voice telephony’ is defined in Article 1 of Directive 90/388/EEC as the

speech in real-time between public switched network termination points,
point in order to communicate with another termination point. In the case of
direct transport and switching of speech via satellite earth station networks,
such commercial provision for the public in general can take place only when
the satellite earth station network is connected to the public switched network.
As regards all services other than voice telephony, no special treatment under
Article 90 (2) is justified especially in view of the insignificant contribution of
such services to the turnover of the telecommunications organizations.
17. The provision of satellite network services for the conveyance of radio
and television programmes is a telecommunications service for the purpose of
this Directive and thus subject to its provisions. Notwithstanding the abolition
of certain special and exclusive rights in respect of receive-only satellite earth
stations not connected to the public network of a Member State and the
abolition of special and exclusive rights in respect of satellite services provided
for public or private broadcasters, the content of satellite broadcasting services
to the general public or private broadcasters, the content of satellite broad-
casting services to the general public provided via frequency bands defined in
the Radio Regulations for both Broadcasting Satellite Services (BSS) and
Fixed-Satellite Services (FSS) will continue to be subject to specific rules
adopted by Member States in accordance with Community law and is not,
therefore, subject to the provisions of this Directive.
18. This Directive does not prevent measure being adopted in accordance
with Community law and existing international obligations so as to ensure that
nationals of Member States are afforded equivalent treatment in third
countries.
19. The offering by satellite operators of space segment capacity of national,

private or international satellite systems to licensed satellite earth station
network operators, is still, in some Member States, subject to regulatory
restrictions other than those compatible with frequency and site coordination
arrangements required under the international commitments of Member
States. These additional restrictions are contrary to Article 59, which implies
that such satellite operators should have full freedom to provide their services
in the whole Community, once they are licensed in one Member State.
20. Tests to establish whether satellite earth stations of licensed operators

other than national operators conform to specifications governing technical
and operational access to intergovernmental satellite systems, are, in most of
the Member States, carried out by the national Signatory of the nation upon
whose territory the station is operating. These conformity assessments are
therefore performed by service providers which are competitors.
This is not compatible with the Treaty provisions, notably Articles 3 (g) and 90,
read in conjunction with Article 86. Member States therefore need to ensure
that these conformity assessments can be carred out direct between the satellite
earth station network operator concerned and the intergovernmental organiza-
tion itself, under supervision of the regulatory authorities alone.
21. Most of the available space segment capacity is offered by the interna-
tional satellite organizations. The charges for using such capacity are still high
in many Member States because the capacity can be acquired only from the
signatory for the Member State in question. Such exclusivity, permitted by
some Member States, leads to a partitioning of the Common Market to the
detriment of customers requiring capacity. In its resolution of 19 December
94/46/EEC 370
1991, the Council consequently called on the Member States to improve access
to the space segment of the intergovernmental organizations. As regards the
establishment and use of separate systems, restrictive measure taken under
international conventions signed by Member States could also have effects
incompatible with Community law, by limiting supply at the expense of the
consumer within meaning of Article 86 (b). Within the international satellite
organizations, reviews of the provisions of the relevant constituent instruments
are under way, inter alia, in respect of improved access and in respect of the
establishment and use of separate systems. In order to enable the Commission
to carry out the monitoring task assigned to it by the EC Treaty, instruments
should be provided to help Member States to comply with the duty of
cooperation enshrined in the first paragraph of Article 5, read in conjunction
with Article 234 (2), of the Treaty.
22. In assessing the measures of this Directive, the Commission, in the
context of the achievement of the fundamental objectives of the Treaty referred
to in Article 2 thereof, including that of strengthening the Community’s
economic and social cohesion as referred to in Article 130 (a), will also take
into account the situation of those Member States in which the terrestrial
network is not yet sufficiently developed and which could justify the deferment
for these Member States, as regards satellite services and to the extent
necessary, of the date of full application of the provisions of this Directive until
1 January 1996,

Article 1
(a) The last sentence of the first indent is replaced by the following:
‘Terminal equipment also means satellite earth station equipment’.
(b) The following indents are added after the second indent:
— ‘special rights’ means rights that are granted by a Member State to a
6
limited number of undertakings, through any legislative, regulatory

or administrative instrument, which, within a given geographical
area,
— limits to two or more the number of such undertakings, otherwise
than according to objective, proportional and non-discriminatory
criteria, or
= designates, otherwise than according to such criteria, several
competing undertakings, or
— confers on any undertaking or undertakings, otherwise than
according to such criteria, any legal or regulatory advantages which
substantially affect the ability of any other undertaking to import,
market, connect, bring into service and/or maintain telecommuni-
cation terminal equipment in the same geographical area under

substantially equivalent conditions;
‘satellite earth station equipment’ means equipment which is cap-
able of being used for the transmission only, or for the transmission
and reception (‘transmit/receive’), or for the reception only (‘re-
ceive-only’) of radiocommunication signals by means of satellites or
other space-based systems’
2. The first paragraph of Article 2 is replaced by the following text.
‘Member States which have granted special or exclusive rights to undertakings

shall ensure that all exclusive rights are withdrawn, as well as those special
rights which
(a) limit two or more the number of undertakings within the meaning of
Article 1, otherwise than according to objective, proportional and non-
discriminatory criteria, or
(b) designate, otherwise than according to such criteria, several competing
undertakings within the meaning of Article 1’
3. The first indent of Article 3 is replaced by the following text:
6
in the case of satellite earth station equipment, refuse to allow such
equipment to be connected to the public telecommunications net-
work and/or to be brought into service where it does not satisfy the
relevant common technical regulations adopted in pursuance of
Council Directive 93/97/EEC (8)() or, in the absence thereof, the
essential requirements laid down in Article 4 of that Directive. In
the absence of common technical rules of harmonized regulatory
conditions, national rules shall be proportionate to those essential
requirements and shall be notified to the Commission in pursuance
of Directive 83/189/EEC where that Directive so requires.
in the case of other terminal equipment, refuse to allow such
equipment to be connected to the public telecommunications net-
work where it does not satisfy the relevant common technical
regulations adopted in pursuance of Council Directive 91/263/
EEC (9)() or, in the absence thereof, the essential requirements laid
down in Article 4 of that Directive’
Article 2
1. Article 1 is amended as follows:

(a) Paragraph | is amended as follows:
(i) the seconds indent is replaced by the following:

“
— ‘exclusive rights’ means the rights that are granted by a
Member State to one undertaking through any legislative,
regulatory or administrative instrument, reserving it the right
94/46/EEC 372
to provide a telecommunication service or undertake an

activity within a given geographical area.’
(il) The following is inserted as the third indent:
6
- ‘special rights’ means 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,
— limits to two or more the number of such undertakings
authorized to provide a service or undertake an activity,
otherwise than according to objective, proportional and non-
- designates, otherwise than according to such criteria, several
competing undertakings as being authorized to provide a
service or undertake an activity, or
~ confers on any undertaking or undertakings, otherwise than
according to such criteria, legal or regulatory advantages
which substantially affect the ability of any other undertaking
to provide the same telecommunications service or to under-
take the same activity in the same geographical area under
substantially equivalent conditions.’
(iii) The fourth indent is replaced by the following:
‘
— ‘telecommunications services’ means services whose provision
consists wholly or partly in the transmission and routing of
signales on a public telecommunications network by means of
telecommunications processes, with the exception of radio- and
television-broadcasting to the public, and satellite services.’
(iv) the following indents are inserted after the fourth indent:
— ‘satellite earth station network’ means a configuration of two
¢
or more earth stations which interwork by means by means of

a satellite;
— ‘satellite network services’ means the establishment and
operation of satellite earth station networks; these services
consist, as a minimum, in the establishment, by satellite earth
stations, of radiocommunications to space segment (‘up-
links’), and in the establishment of radiocommunications
between space segment and satellite earth stations (‘down-
links’);
— ‘satellite communications services’ means service whose pro-
vision makes use, wholly or partly, of satellite network
services;
— ‘satellite services’ means the provision of satellite communica-
tions services and/or the provision of satellite networks
services;’
(v) the second sentence of the sixth indent is replaced by the following
text:
‘Those reasons are security of network operations, maintenance of
network integrity, and, in justified cases, interoperability of services,
data protection and, in the case of satellite network services, the
effective use of the frequency spectrum and the avoidance of
harmful interference between satellite telecommunications systems
and other space-based or terrestrial technical systems,’
(b) Paragraph 2 is replaced by the following:
‘2. This Directive shall not apply to the telex service or to terrestrial
mobile radiocommunications.’
2 Article 2 is amended as follows:
(a) The first paragraph is replaced by the following:
‘Without prejudice to Article 1 (2), Member States shall withdraw all
those measures which grant:
(a) exclusive rights for the supply of telecommunications services
otherwise than voice telephony and
(b) special rights which limit to two or more the number of under-
takings authorized to supply such telecommunication services,
otherwise than according to objective, proportional and non-
(c) special rights which designate, otherwise than according to such
criteria, several competing undertakings to provide such telecom-
munication services.
They shall take the measures necessary to ensure that any operator
is entitled to supply any such telecommunications services, other-
wise than voice telephony’.
(b) The following paragraphs are added:

‘Member States shall communicate the criteria on which authorizations
are granted, together with the conditions attached to such authorizations
and to the declaration procedures for the operation of transmitting earth
stations.
Member States shall continue to inform the Commission of any plans to
introduce new licensing procedures or to change existing procedures’.
2, Article 6 is amended as follows:

(a) The following paragraphs are added after the second paragraph:
‘Member States shall ensure that any fees imposed on providers of
services as part of authorization procedures, shall be based on objective,
transparent and non-discriminatory criteria.
Fees, the criteria upon which they are based, and any changes thereto,
shall be published in an appropriate and sufficiently detailed manner, so
as to provide easy access to that information.
94/46/EEC 374
Member States shall notify to the Commission no later than nine months
after publication of this Directive, and thereafter whenever changes
occur, the manner in which the information is made available. The
Commission shall regularly publish references to such notifications.’
(b) The following paragraph is added:
‘Member States shall ensure that any regulatory prohibition or restric-
tions on the offer of space-segment capacity to any authorized satellite
earth station network operator are abolished, and shall authorize 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 his space segment capacity,
Article 3
Member States which are party to the international conventions setting up the
international organizations Intelsat, Inmarsat, Eutelsat and Intersputnik for
the purposes of satellite operatons shall communicate to the Commission, at its
request, the information they possess on any measure that could prejudice
compliance with the competition rules of the EC Treaty or affect the aims of
this Directive or of the Council Directives on telecommunications.
Article 4
Commission to confirm that Articles 1 and 2 have been complied with.
Article 5
Article 6

For the Commission
Karel VAN MIERT
(1) OJ No C8, 14. 1. 1992, p. 1.

(2) OJ No C 42, 15. 2. 1993, p. 30.
(3) OJ No L 131, 27. 5. 1988, p. 73.
(4) [1991] ECR 1-1223.
(5) OJ No L 290, 24. 11. 1993, p. 1.
(6) OJ No L 192, 24. 7. 1990, p. 10.
(7) [1992] ECRI-5833.
(8) OJ No L 290, 24. 11. 1993, p. 1.
(9) OJ No L 128, 23. 5. 1991, p. 1.
COUNCIL RESOLUTION OF 22 DECEMBER 1994 ON FURTHER DEVELOPMENT OF
THE COMMUNITY’S SATELLITE COMMUNICATIONS POLICY, ESPECIALLY WITH
REGARD TO THE PROVISION OF, AND ACCESS TO, SPACE SEGMENT CAPACITY
(94/C 379/04)
Having regard to the Commission communication of 10 June 1994 on satellite
communications: the provision of, and access to, space segment capacity,
Having regard to Commission Directive 94/46/EC of 13 October 1994
amending Directive 88/301/EEC and Directive 90/388/EEC in particular
with regard to satellite communications [1],
Having regard to the Council resolution of 19 December 1991 on the
development of the common market for satellite communications services and
equipment [2],
Whereas in its resolution of 19 December 1991, the Council gave its support to
the general goals of the Commission’s Green Paper on a common approach in
the field of satellite communications in the European Community;
Whereas in its resolution of 6 May 1994 on the Community and space [3], the
European Parliament addresses the importance of a reinforcement of efforts to
assist in the development of, inter alia, a competitive European satellite
communications sector through a series of policy initiatives and actions, and
proposes the firm establishment of a longer term Community satellite commu-
nications policy, taking full account of both the telecommunications and the
space issues affecting the future of the sector;
Whereas efforts should be undertaken to ensure the future of this strategically
important sector;
Whereas successful European participation in the global satellite communica-
tions market is, inter alia, dependent on the creation of a competitive satellite
sector in a liberalized environment, on comparable and effective access to third
country markets, on the availability of suitable technology, and on attracting
substantial private investment;
Whereas these factors are, inter alia, essential elements to be taken into account
to enable the satellite sector to make an appropriate contribution to the
development of trans-European telecommunications networks and the devel-
opment of a global information society;
Whereas the Community aims are to develop a common market for satellite
communications services and to foster the competitiveness of the European
satellite services sector; whereas these aims shall be achieved, inter alia, by the
2h
introduction and stimulation of competition among satellite communications

service providers;
Whereas in an increasingly competitive environment, the availability of

suitable, transparent and non-discriminatory, access arrangements to space
segment resources is essential;
Whereas the effective management by the Member States of orbital and related
frequency resources is closely connected with these arrangements;
Whereas space segment capacity is available from intergovernment satellite

organizations — in particular from Intelsat, Inmarsat and Eutelsat -, from
public satellite operators, and from private satellite operators;
Whereas in general national telecommunications operators, either as signa-
tories in the framework of intergovernmental systems or as owners of national
systems, control access to a majority share of the space segment capacity;
whereas these national operators are also in competition with other service
providers in the provision of satellite services;
1. RECALLING that the Council resolution of 19 December 1991 on the
development of the common market for satellite services and equipment:
- considered as a major goal improved access to the space segment and
access to the space capacity of the intergovernmental organizations
operating satellite systems and effective and accelerated procedures for
the establishment of and access to separate satellite systems,
- expressed the need to keep carefully in mind industrial aspects, including
the need for an internationally competitive European industry in the field
of satellite communications;
2. RECOGNIZING:
2.1. in relation to the Community satellite communications sector:
(a) that this sector is a high technology sector of strategic importance,
which has to be taken into account when further developing the
Community’s communications policy;
(b) that the consolidation and growth of a competitive Community
satellite communications sector is dependent on, inter alia, the full
reflection of its potential in the consideration of the satellite
communications policy, research and development policy, external
relations policy and industrial policy;
2.2. in relation to intergovernmental satellite organizations such as Intelsat,
Inmarsat and in particular Eutelsat:
(a) that these organizations are of considerable importance in the
supply of space segment capacity and that this capacity at present
is supplied to signatories on a universal basis and under non-
discriminatory conditions;
94/C 379/04 377
(b) that presently a review of the institutional and economic basis of

these organizations is in progress;
(c) that Member States pursuant to the rules of the Treaty shall take all
appropriate steps to ensure that signatories exercise their functions
with regard to the allocation of space capacity in a non-discrimina-
tory manner in accordance with Directive 94/46/EC;
that a balanced approach by Member States with regard to effective
management of orbital and related frequency resources, ensuring effec-
tive representation of their interests, is essential in order to assure
equitable, non-discriminatory access by providers of space segment
capacity, taking due account of the new competitive and commercial
environment;
2.4. that satellite-based networks, services, and applications may contribute
to the fast development of trans-European networks and that this may
also contribute to the global information society;
2: IDENTIFIES AS BASIC GOALS for the further development of the
satellite communications policy:
ade. non-discriminatory access, for all providers and users of satellite services
throughout the Community, to space segment capacity, including in
particular space segment capacity provided by intergovernmental satel-
lite organizations;
a2. urgent adjustment of the intergovernmental satellite organizations such
as Intelsat, Inmarsat and in particular Eutelsat in the light of the
Community regulatory framework and the market requirements in
accordance with the Treaty obligations and with the interest of the
Community satellite communications sector, taking into account, inter
alia, the following principles:
(a) strict separation of all regulatory and operational aspects;
(b) separation or more flexibility in the linkage of investment shares
and usage;
(c) non-discrimination and transparency, if both space segment capa-
city and satellite services are provided;
Ries comparable and effective access to third country markets, in parallel with
the Community market liberalization;
3.4. effective management of orbit and frequency resources within the frame-
work of the International Telecommunications Union, building on the
cooperation in CEPT and taking full account of Member States’ sover-
eign rights, with the aim of improving the economic benefits and
efficiency, and the market orientation of the current approach;
4. NOTES the intention of the Commission, to use, where necessary, the
means available through the application of the Treaty provisions, in particular
the competition rules to remove restrictions within the Community on access

to space segment capacity;
De INVITES the Member States:
to assist each other, where necessary, and to cooperate closely, where
appropriate, in implementing the basic goals mentioned above with
regard to the reform of the intergovernmental satellite organizations such
as Intelsat, Inmarsat and in particular Eutelsat, and with regard to the
effective management of orbit and frequency resources,
to apply the constituent instruments of these organizations at national
level in line with the Treaty obligations, in particular with the competition
rules, and with Community law,
to provide for non-discriminatory access to space segment capacity at
national level taking account of the relevant provisions of this resolution;
INVITES the Commission:
to monitor the access arrangements in third country markets with a view
to ensuring comparable and effective market access to third countries, in
line with the GATT framework and other international obligations of
Member States,
to take due account, inter alia, of advantages offered by satellite-based
applications in its development of a coherent strategy for Trans-European
Networks;
Me REQUESTS the Commission to report on the progress in the implementa-
tion of the basic goals and the implementation of Community measures such as
Directive 94/46/EC to the European Parliament and the Council.
(1) OJ No L 268, 19. 10. 1994, p. 15.

(2) OJNoC8, 14. 1. 1992, p. 1.
(3) OJ No C 205, 25. 7. 1994, p. 467.
DECISION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF
24 MARCH 1997 ON A COORDINATED AUTHORISATION APPROACH IN THE FIELD
OF SATELLITE PERSONAL COMMUNICATION SERVICES IN THE COMMUNITY
(710/97/EC)

EUROPEAN UNION,
Having regard to the Treaty establishing the European Community and in
particular Articles 57, 66 and 100a thereof,
Having regard to the proposal of the Commission [1],
Treaty [3],
(1) Whereas on 7 December 1993 the Council adopted a resolution on the

introduction of satellite personal-communications services in the Community
[4]; whereas in that resolution the Council recognized the desirability of
coordinated action to allow the introduction of satellite personal-communica-
tions services in the Community, taking full account of the global nature of
such services; whereas the Council stressed the importance of developing an
effective policy and asked the Commission to study the matter, monitor
international developments and propose appropriate measures and/or actions;
(2) Whereas on 19 May 1995, the European Parliament adopted a resolution
on mobile and personal communications in the European Union [5] in which it
considered it a priority objective to establish a harmonized licensing approach
for satellite-based mobile and personal communications and, on that basis, to
initiate procedures for licensing such systems at an early stage; whereas,
according to that resolution, that approach should have been implemented by
1 January 1996 in order to take account of the rapid development of such
services at global level and of their potential in both social and commercial
terms;
(3) Whereas on 29 June 1995 the Council adopted a resolution on the further
development of mobile and personal communications in the European Union
[6] in which it considered it a priority objective to ensure, before 1 June 1996,
the specification of a harmonized licensing approach for satellite-based mobile
and personal communications, after investigation by the European Committee
for Telecommunications Regulatory Affairs (Ectra);
(4) Whereas on 18 June 1996 the Council adopted common position No 34/
96 with a view to adopting 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
379
open network provision (ONP) [7], hereinafter referred to as ‘the interconnec-

tion Directive’; whereas principles to govern the interconnection of mobile
services which include satellite personal-communications services with sepa-
rate telecommunications networks are set out in this Directive;
(5) Whereas on 6 December 1995 the Commission submitted a proposal for a
Directive of the European Parliament and of the Council relating to tele-
communications terminal equipment and satellite earth-station equipment,
including the mutual recognition of their conformity (consolidated version);
(6) Whereas the European Parliament and the Council are examining a
common position with a view to the adoption of the Directive of the European
Parliament and of the Council on a common framework for general authoriza-
tions and individual licences in the field of telecommunications services (8),
hereinafter referred to as ‘the licensing Directive’; whereas, given the urgency of
these matters and the fact that no such authorization measures have been
adopted or implemented, the area of satellite personal-communications
services therefore requires action at Community level in accordance with this
Decision; whereas that action should be of limited duration;
(7) Whereas, having considered the telecommunications, trade and industry
aspects as well as the frequency and standardization aspects of satellite
personal communications and having consulted the industry concerned, the
Commission has submitted a proposal for a decision and the related timetable
with the aim of harmonizing the authorization of satellite personal-commu-
nications services on the basis of a common approach;
(8) Whereas, in accordance with Commission Directive 94/46/EC of 13

October 1994 amending Directive 88/301/EEC and Directive 90/388/EEC in
particular with regard to satellite communications [9], market entry for satellite
personal communications space-segment operators can be restricted only on
the basis of objective, transparent, proportionate and non-discriminatory
selection criteria relating to the availability of scarce resources; whereas if
spectrum is not available for the accommodation of all candidate systems,
decisions on such restrictions should be coordinated;
(9) Whereas there is an urgent need for harmonization of the use of frequency
bands for satellite personal-communications services, which for the purposes
of this Decision are defined as those operating in the 1.6/2.4 GHz and 1.9/2.1
GHz frequency bands; whereas the Member States’ final assignment of
frequencies to individual systems should comply with established International
Telecommunication Union procedures;
(10) Whereas each country has the sovereign right to decide whether and how
to participate in satellite personal-communications systems and to determine
the terms and conditions of access to such systems from its territory, known as
uplinks, and satellite personal-communications services operators are required
to operate at the point of delivery under the legal, financial and regulatory
710/97/EEC 381
requirements of the Member State within the territory of which those services
are authorized; as a consequence, satellite personal-communications services
operators are concurrently subject to the jurisdictions of the notifying admin-
istrations for the satellite personal-communications systems and to those of the
countries in which services are authorized;
(11) Whereas, despite the priority at present given to services operating in the
aforementioned 1.6/2.4 GHz and 1.9/2.1 GHz frequency bands, Member
States recognize the possible need to harmonize the use of other satellite
frequency bands, in particular those corresponding to ‘small LEOs’ (non-vocal,
non-geostationary satellite mobile-telecommunications systems);
(12) Whereas, since satellite personal communications by their nature

primarily address the needs of mobile users travelling between Member States
and especially outwith the Community, diverging national laws, regulations
and administrative provisions would hinder or even prevent the provision of
Community-wide satellite personal-communications services, the free move-
ment of related equipment and, as a consequence, the successful introduction
of satellite personal-communications services on the internal market;
(13) Whereas the freedom to provide satellite personal-communications
services and the free movement of related equipment on the internal market
requires the approximation of national regulations and administrative provi-
sions;
(14) Whereas, owing to the need for the widest possible territorial coverage
by satellite personal-communications systems, Member States should aim at
the rapid and simultaneous introduction of compatible satellite personal-
communications services in the Community on the basis of internal market
principles by means of a coordinated approach;
(15) Whereas, given the timetable laid down for the implementation of
satellite personal-communications systems, this Decision is intended to ensure
that, within its limited duration, appropriate regulatory measures are taken in
the Community to achieve the harmonized provision of satellite personal
communications, taking due account of the international dimension and its
consequent requirements;
(16) Whereas it is necessary to determine whether the scarcity of frequencies
in the 1.6/2.4 GHz and 1.9/2.1 GHz frequency bands represents a constraint
on the number of satellite personal-communications services which can be
provided in the Community in these bands shared among candidate systems;
whereas, to prevent the emergence of ‘paper satellite systems’ due account must
be taken of the advanced stage of development of those systems;
(17) Whereas the principle of transparency should apply at all stages of the
procedure to any measure adopted pursuant to this Decision without prejudice
to the legitimate right to confidentiality;
(18) Whereas authorizations are granted pursuant to the national regimes

applicable in accordance with Directive 94/46/EC;
(19) Whereas measures adopted by the European Radiocommunications
Committee (ERC) and Ectra are, if consistent with Community law, a basis
for the use of the relevant frequencies by and for the preparation of the criteria
for the authorization of satellite personal-communications services;
(20) Whereas European standardization bodies such as the European Tele-
communications Standards Institute (ETSI) and the European Committee for
Standardization (CEN) and the European Committee for Electrotechnical
Standardization (Cenelec) may be called upon in due course to prepare the
necessary standards in this area;
(21) Whereas the European Conference of Postal and Telecommunications
Administrations (CEPT), Ectra and ERC in particular will also be given
mandates to harmonize authorization conditions and procedures;
(22) Whereas to facilitate the granting of satellite personal-communications
services authorizations to undertakings in more than one Member State, a
‘one-stop-shopping procedure’ should be established; whereas that one-stop-
shopping procedure should be implemented without prejudice to national
provisions relating to the language used in the relevant procedures;
(23) Whereas the global dimension of satellite personal-communications
systems and services and the related global regulatory structure under which
they are provided play an important role in the Community’s deliberations;
whereas the Commission should monitor developments, particularly in respect
of the regulatory process, outwith the Community and, if appropriate, consult
with third countries on the coordinated introduction of satellite personal
communications at global level; whereas this action at Community level should
permit the Community and its Member States to exert greater influence on the
worldwide development of mobile and personal communications;
(24) Whereas the inherent global nature of satellite personal-communica-
tions services may require the conclusion of a substantial number of agree-
ments with third countries on, inter alia, interconnection, the free movement
and use of equipment, satellite-system and satellite-control operations, access
to gateway stations and access to third countries’ markets; whereas those
agreements are closely related to market access arrangements;

(26) Whereas, therefore, the Commission may start multilateral and bilateral
negotiations on those aspects of satellite personal communications on the basis
710/97/EEC 383
of specific mandates from the Council, which should make it possible to

conclude balanced agreements ensuring in particular effective and comparable
access for Community operators in third countries;
(27) Whereas the results of international consultations and other changes in

the situation may require that decisions taken pursuant to this Decision be
amended or other appropriate measures be undertaken;
(28) Whereas Member States should take all appropriate measures to

implement this Decision and decisions arising therefrom in due course and
communicate all national implementation measures to the Commission;
(29) Whereas the industry concerned should be requested to cooperate
closely with the Commission and national regulatory authorities in the
implementation of this Decision;
(30) Whereas the nature of the information provided by applicants and by

other representatives of the industry concerned may be of a commercially
confidential nature; whereas the utmost discretion should be exercised in
connection with that information,
HAVE ADOPTED THIS DECISION:

Article 1
Scope
The aim of this Decision shall be to facilitate the rapid introduction of
compatible satellite personal-communications services in the Community on
the basis of internal-market principles within a comparable time-frame by
means of a coordinated approach.
Article 2
Coordinated authorization approach
1. When preparing and applying their authorization systems Member States
shall ensure that the provision of satellite personal-communications
services is organized in frequency bands which are harmonized by CEPT
in accordance with the procedure laid down in Article 3.
2. If it is established, in accordance with Article 3 and in conjunction with
CEPT, that it is necessary to limit the number of satellite personal-
communications services authorizations owing to the scarcity of the
frequency spectrum available, Member States shall coordinate their
authorization procedures with a view to authorizing the same satellite
personal-communications services throughout the Community.
3. | Member States may attach the conditions listed in Annex I to authoriza-
tions.
Those conditions may be imposed even if no part of the satellite personal-
communications systems concerned is located within the territory of a
Member State.
4. | Member States shall take all technical and other appropriate measures to
ensure the free movement of technical equipment within their territories
in accordance with European harmonized standards and common
technical regulations (CTRs).
Article3
Cooperation with CEPT
ie The Commission shall, in accordance with the procedure laid down in
Article 7, give CEPT/Ectra and CEPT/ERC mandates to harmonize
frequency use and the conditions attached to general authorizations for
satellite personal-communications services, without prejudice to the
scope established in the licensing Directive for individual licences. Those
mandates shall define the tasks to be performed and lay down a timetable.
The timetable for the first mandates shall be as set out in Annex II.
On the completion of the mandates it shall be decided in accordance with
the procedure laid down in Article 6 whether the result of the work done
pursuant to the mandates shall be made applicable in the Community.
Notwithstanding Article 2 (1), if the Commission or any Member State
considers that work done pursuant to the mandate given to CEPT/Ectra
or CEPT/ERC is not progressing satisfactorily having regard to the
timetable laid down, it may refer the matter to the committee provided
for in Article 5, which shall act in accordance with the procedure laid
down in Article 6.
Article 4
One-stop-shopping procedure
iD 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 6. Information on that one-stop-shopping
procedure shall be published in the Official Journal of the European
Communities.
The one-stop-shopping procedure shall comply with the following condi-
tions:
(a) it shall be open to all undertakings wishing to operate telecommu-

nications services in the Community;
(b) the submission of applications and notifications shall be possible
and one or more bodies to which applications and 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
FIOVOT/EEC 385
to the national regulatory authorities concerned, within two work-

ing days of formal receipt, by the bodies to which they were
submitted;
(d) inthe case of individual licenses, the national regulatory authorities
concerned shall decide within a reasonable time whether to grant
them; inter alia, they shall inform the applicants of their decisions as
soon as possible but not more than six weeks after receiving the
applications. Member States may extend that time limit to up to
four months in objectively justified cases which are defined specifi-
cally in the provisions adopted to implement the licensing Directive.
In the case of comparative bidding procedures in particular,
Member States may further extend that time limit by up to four
months. Those time limits shall be without prejudice to any
applicable international agreements relating to international fre-
quency and satellite coordination.
Within one week of taking their decisions, national regulatory
authorities shall inform both the applicants and the bodies to which
the relevant applications were submitted accordingly.
In the case of general authorizations, the national regulatory
authorities concerned may require the applicants to wait for up to
four weeks after the authorities’ formal receipt of all the informa-
tion required, before starting to provide the services covered by the
general authorizations;
(e) the bodies to which applications and notifications may be sumbitted
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;
(f) the bodies involved in the one-stop-shopping procedure shall under-
take to observe the level of confidentiality prescribed in Article 11.
Article 5
The committee
Ik: In the implementation of this Decision the Commission shall be assisted
by the Licensing Committee set up by the licensing Directive. The
Licensing Committee shall proceed in accordance with Articles 6 and 7.
2. In view of the urgency of these matters and until the committee referred
to in paragraph | is set up, the Commission shall be assisted by an
interim ad hoc committee which it shall convene when necessary and
which shall proceed in accordance with Articles 6 and 7.
Article 6
Committee procedure IT b (10)
I. The representative of the Commission shall submit to the committee a
2. The Commission shall adopt 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 which it has
decided for a period of three months from the date of communica-
tion;
- the Council, acting by a qualified majority, may take a different
decision within the time limit laid down in the first indent.
Article 7
Committee procedure I [11]
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
The Commission shall take the utmost possible 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 8
1. |The Commission shall regularly inform the committee of the outcome of
consultations with the representatives of telecommunications organiza-
tions, users, consumers, manufacturers, service providers and trade
unions.
2. _ The committee shall, taking into account the Community’s telecommu-
nications policy, encourage the exchange of information between the
Member States and the Commission on the situation and the develop-
ment of regulatory activities regarding the authorization of satellite
personal-communications services.
Article 9
International aspects
encountered, de jure or de facto, by Community organizations on the
introduction of satellite personal-communications services in third coun-
tries which have been brought to their attention.
FIO/97/EEC 387
2. Whenever the Commission is informed of such difficulties it may, if

necessary, submit a proposal to the Council for an appropriate mandate
for negotiation with the aim of ensuring effective and comparable access
for Community organizations in those third countries. The Council shall
3. Measures taken pursuant to paragraph 2 shall be without prejudice to the
Community’s and Member States’ obligations pursuant to relevant
Article 10
Notification
Member States shall give the Commission such information as it may require
for the purpose of verifying the implementation of this Decision.
Article 11
Confidentiality
1. Neither the Commission nor the national regulatory authorities shall
disclose any information covered by the obligation of professional
secrecy, in particular information about undertakings, their business
relations or their cost components.
2. Paragraph | 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 propor-
tionate and shall have regard to the legitimate interests of the under-
takings in the protection of their business secrets.
3. Paragraph 1 shall not preclude the publication of information on
licensing conditions which does not include information of a confidential
nature.
Article 12
Duration
This Decision shall enter into force on the 20th day after its publication in the
Official Journal of the European Communities and shall remain in force for
three years after that date.
Article 13
Report
The Commission shall keep developments in the field of satellite personal
communications under review and report to the European Parliament and to
the Council on the effectiveness of action taken pursuant to this Decision after
two years.
Article 14
Implementation
Member States shall take all measures necessary, by law or administrative
action, for the measures provided for in, or agreed on pursuant to this Decision
to be implemented.
Article 15
Addressees

Done at Brussels, 24 March 1997.
The President
J. M. GIL-ROBLES
For the Council
The President
H. VAN MIERLO
(1) OJ No C 15, 20. 1. 1996, p. 6, and OJ No C 350, 21. 11.1996, p. 14.

(2) OJ No C 204, 15. 7. 1996, p. 8.
(3) Opinion of the European Parliament of 19 June 1996 (OJ No C 198, 8. 7. 1996, p. 93), Council
common position of 9 December 1996 (OJ No C 41, 10. 2. 1997, p. 37) and Decision of the
European Parliament of 20 February 1997 (OJ No C 85, 17. 3. 1997). Council Decision of 6
March 1997.
(4) OJ No C 339, 16. 12. 1993, p. 1.
(5) OJ No C 151, 19. 6. 1995, p. 473.
(6) OJ No C 188, 22. 7. 1995, p. 3.
(7) OJ Noi 22052947:11996,2p: 13:
(8) OJ No C 41, 10. 2. 1997, p. 48.
(9) OJ No L 268, 19. 10. 1994, p. 15.
(10) 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
L97STS OTe O87 Spas):
ANNEX I
Conditions that may be attached to authorizations
Any conditions which are attached to authorizations must be consistent

with the competition rules of the Treaty.
Conditions which may be attached to all authorizations, where justified
2.1. Conditions intended to ensure compliance with relevant essential
requirements.
2.2. Conditions linked to the provision of information reasonably
tions and for statistical purposes.
2.3. Conditions intended to prevent anti-competitive behaviour in tele-
are non-discriminatory and do not distort competition.
2.4. Conditions relating to the effective and efficient use of numbering
capacity.
7IO/97/EEC 389
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 propor-
tionality:
yl i Conditions relating to the protection of users and subscribers, in
- the prior approval of 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
services.
nee 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.
3D: Special arrangements for disabled people.
3.05 Conditions relating to the interconnection of networks and the
interoperability of services in accordance with the interconnection
Directive and obligations pursuant to Community law.
Specific conditions which may be attached to individual licences, 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 manage-
ment of radio frequencies.
4.3. Specific environmental and specific town and country planning
facility sharing.
4.4. Maximum duration, which shall not be unreasonably short, in
or numbers or to grant access to public or private land, without
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 the principles of open network provision (ONP) to
voice telephony [1].
4.6. Conditions applied to operators having significant market power, as

notified by Member States within the meaning of the interconnec-
tion 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-a-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 tele-
communications 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 is without prejudice to:
- any other conditions which are not specific to the telecommu-
nications 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 activ-
ities, and public policy.
(1) OJ No L 321, 30. 12. 1995, p. 6.

(OJ No L 181, 15. 7. 1994, p. 40).
12 FEBRUARY 1998 RELATING TO TELECOMMUNICATIONS TERMINAL
EQUIPMENT AND SATELLITE EARTH STATION EQUIPMENT, INCLUDING THE
MUTUAL RECOGNITION OF THEIR CONFORMITY (98/13/EC )

EUROPEAN UNION,
particular Article 100a thereof;

Treaty [2],
(1) Whereas Council Directive 91/263/EEC of 29 April 1991 on the approx-

imation of the laws of the Member States concerning telecommunications
terminal equipment, including the mutual recognition of their conformity [3],
and Council Directive 93/97/EEC of 29 October 1993 supplementing Direc-
tive 91/263/EEC in respect of satellite earth station equipment [4] should, for
the sake of clarity and rationality, be codified in a single text;
(2) Whereas the sector covering telecommunications terminal equipment and
satellite earth station equipment is a vital part of the telecommunications
industry, which is one of the industrial mainstays of the economy in the
Community;
(3) Whereas the Commission, in its Green Paper on the development of the
common market for telecommunications services and equipment, has pro-
posed to accelerate the introduction of the full mutual recognition of type
approval as the measure vital for the development of a competitive Commu-
nity-wide terminal market;
(4) Whereas the Commission, in its Green Paper on a common approach in
the field of satellite communications in the Community, has proposed the
introduction of mutual recognition of type approval for satellite earth station
equipment as one of the major preconditions for, inter alia, a Community-wide
market for satellite earth station equipment;
(5) Whereas the Council, in its resolution of 30 June 1988 [5] on the
development of the common market for telecommunications services and
equipment, has confirmed as a major goal in the telecommunications policy
the full mutual recognition of type approval for terminal equipment on the
basis of the rapid development of common European conformity specifica-
tions;
Sl
(6) Whereas the Council, in its resolution of 19 December 1991 on the

development of the common market for satellite communications services and
equipment (6), has recognised as one of the major goals in satellite telecommu-
nications policy the harmonisation and liberalisation of appropriate satellite
earth station equipment, subject, in particular, to conditions necessary for
compliance with essential requirements;
(7) Whereas the Council, in its Decision 87/95/EEC [7], has set out the
measures to be implemented for the promotion of standardisation in Europe
and the preparation and implementation of standards in the field of informa-
tion technology and telecommunications;
(8) Whereas the Council, in its resolution of 7 May 1985 [8] has provided for
a new approach to technical harmonisation and standards;
(9) Whereas the scope of this Directive must be based on a general definition
of the terms ‘telecommunications terminal equipment’ and ‘satellite earth
station equipment’ so as to allow the technical development of products;
whereas the scope excludes purpose-built satellite earth station equipment
intended for use as part of the public terrestrial telecommunications network;
whereas this is intended to exclude, inter alia, gateway satellite earth stations
for major trunking applications within the context of the infrastructure
provision (such as large-diameter stations) and earth stations for satellite
tracking and control;
(10) Whereas this Directive does not affect current special or exclusive rights
concerning satellite communications which may, in accordance with Commu-
nity law, be retained by the Member States;
(11) Whereas harmonising conditions for the placing on the market of
telecommunications terminal equipment will create the conditions for an open
and unified market; whereas the same applies to the goal of an advanced, open
trans-European market for satellite earth stations equipment, which requires
effective and efficient harmonised procedures for certification, testing, mark-
ing, quality assurance and product surveillance; whereas the alternative to
Community legislation is an analogous system of provisions negotiated
between Member States, which would involve obvious difficulties because of
the number of organisms which would be involved in multiple bilateral
negotiations; whereas this is hardly practicable, and would be neither rapid
nor efficient; whereas therefore the objectives of the proposed action cannot be
sufficiently achieved by the Member States; whereas on the contrary the form
of a Community Directive has repeatedly shown itself, in the sector of
telecommunications among others, to be a practicable, rapid and efficient
means; whereas the objectives of the action under consideration can therefore
be better achieved at Community level;
(12) Whereas Community law in its present form provides — notwithstanding

one of the fundamental rules of the Community, namely the free movement of
D8/ISTEC 393
goods — that obstacles to movement within the Community, resulting from

disparities in national legislation on the marketing of products, must be
accepted in so far as such requirements can be recognised as being necessary
to satisfy imperative requirements; whereas, therefore, the harmonisation of
laws in this case must be limited only to those requirements necessary to satisfy
the essential requirements relating to telecommunications terminal equipment
and satellite earth station equipment; whereas these requirements must replace
the relevant national requirements because they are essential;
(13) Whereas the essential requirements must be satisfied in order to safe-
guard the general interest; whereas those requirements must be applied with
discernment to take account of the state of the art at the time of manufacture,
and economic requirements;
(14) Whereas Council Directive 73/23/EEC of 19 February 1973 on the
harmonisation of the laws of the Member States relating to electrical equip-
ment designed for use within certain voltage limits [9] and Council Directive
83/189/EEC of 28 March 1983 laying down a procedure for the provision of
information in the field of technical standards and regulations [10], are
applicable inter alia to the fields of telecommunications and information
technology;
(15) Whereas Directive 73/23/EEC in general also covers safety of persons;

(16) Whereas Council Directive 89/336/EEC of 3 May 1989 on the approx-
imation of the laws of the Member States relating to electromagnetic compat-
ibility [11] sets out harmonised procedures for the protection of apparatus from
electromagnetic disturbances and defines the protection requirements and
inspection procedures relating thereto; whereas the general requirements of
Directive 89/336/EEC apply inter alia to the fields of telecommunications and
information technology and also to satellite earth station equipment; whereas
electromagnetic compatibility requirements are covered by this Directive in so
far as they are specific to telecommunications terminal equipment and satellite
earth station equipment;
(17) Whereas in respect of the essential requirements and in order to help
manufacturers to prove conformity to those requirements, it is desirable to
have standards harmonised at European level to safeguard the general interest
in the design and manufacture of terminal equipment and in order to allow
checks as to conformity to those requirements; whereas these standards,
harmonised at European level, are drawn up by private-law bodies and must
retain their non-binding status; whereas for this purpose the European
Committee for Standardisation (CEN), the European Committee for Electro-
technical Standardisation (Cenelec) and the European Telecommunications
Standards Institute (ETSI), are the bodies recognised as competent to adopt
harmonised standards; whereas, for the purposes of this Directive, a harmo-
nised standard is a technical specification (European standard or harmonisa-
tion document) adopted by one of those bodies, on the basis of a remit from the
Commission in accordance with the provisions of Directive 83/189/EEC, and
in accordance with the general guidelines referred to above;
(18) Whereas in respect of the essential requirements relating to interworking
with public telecommunications networks and, in cases where it is justified,
through such networks, it is in general not possible to comply with such
requirements other than by the application of unique technical solutions;
whereas such solutions should therefore be mandatory;
(19) Whereas the proposals for common technical regulations are, as a
general rule, drawn up on the basis of harmonised standards, and in order to
ensure appropriate technical coordination on a broad European basis, through
additional consultations, in particular with the Telecommmunications Regula-
tions Application Committee (TRAC);
(20) Whereas satellite earth station equipment is configured, as far as its
interface to the space-based system is concerned, either for the emission of
radio-communications signals or for both the emission and reception of radio-
communications signals, or for the reception only of radio-communications
signals;
(21) Whereas satellite earth station equipment is, as far as the terrestrial
interface is concerned, either intended or not intended for terrestrial connec-
tion to the public telecommunications network;
(22) Whereas orbits (such as the geo-stationary orbit, low earth orbits and
elliptical orbits) are paths in space described by satellites or other space-based
systems, and are limited resources determined by nature;
(23) Whereas orbital resources are used in conjunction with the radio
frequency spectrum which is also a limited resource determined by nature;
whereas transmitting satellite earth station equipment makes use of both those
resources;
(24) Whereas the effective use of orbital resources in conjunction with the
radio frequency spectrum and avoidance of harmful interference between
space-based and terrestrial communications systems and other technical
systems is of importance for the development of European satellite commu-
nications; whereas the International Telecommunications Union (ITU) estab-
lishes criteria for effective use of orbital resources as well as for radio-
coordination to enable space and terrestrial systems to co-exist without undue
interference;
(25) Whereas harmonising conditions for the placing on the market of
satellite earth station equipment will create conditions permitting an effective
use of orbital resources and the radio frequency spectrum and will facilitate
avoidance of harmful interference between space-based and terrestrial com-
munication systems and other technical systems;
98/13/EC 395
(26) Whereas in respect of the essential requirements related to effective use

of orbital resources and the radio frequency spectrum, and avoiding harmful
interference with space-based and terrestrial communications systems and
other technical systems, it is in general not possible to comply with such
requirements other than by the application of specific technical solutions;
whereas common technical regulations are therefore necessary;
(27) Whereas satellite earth station equipment capable of being used for
transmission or for transmission and reception of radio-communication
signals may be subject to licensing, in addition to the provisions of this
Directive;
(28) Whereas satellite earth station equipment, capable only of being used for
the reception of radio-communications signals, may not be subject to licensing
but only to the provisions of this Directive unless they are intended for
terrestrial connection to the public telecommunications network, as proposed
in the Green Paper on satellite communications in the Community; whereas
the use of such satellite earth station equipment must be in conformity with
national regulations compatible with Community law;
(29) Whereas it is essential to ensure that notified bodies are of a high
standard throughout the Community and meet minimum criteria of compe-
tence, impartiality and financial and other independence from clients;
(30) Whereas the Approvals Committee for Terminal Equipment (ACTE)
composed of representatives of the Member States and chaired by the
representative of the Commission, should assist the Commission in executing
the tasks entrusted to it;
(31) Whereas representatives of the telecommunication organisations, users,
consumers, manufacturers, service providers and the trade unions should have
the right to be consulted;
(32) Whereas ACTE should work in close cooperation with relevant commit-
tees dealing with licence procedures for satellite networks and services;
(33) Whereas the Member States’ responsibility for safety, health and the
other aspects covered by the essential requirements on their territory must be
recognised in a safeguard clause providing for proper Community protection
procedures;
(34) Whereas the addressees of any decision taken under this Directive must
be informed of the reasons for such a decision and the remedies available to
them;
(35) Whereas transitional arrangements are required in order that the
manufacturers have the necessary time to adapt the design and production of
satellite earth station equipment to meet the common technical regulations;
whereas in order to have the necessary flexibility the transition arrangements
must be worked out on a case-by-case basis; whereas the common technical

regulations shall lay down the necessary transition arrangements;
(36) Whereas real, comparable access to third country markets, in particular

the United States of America and Japan, for European manufacturers should
preferably be achieved through multilateral negotiations within the World
Trade Organisation (WTO), although bilateral talks between the Community
and third countries may also contribute to this process;
(37) Whereas this Directive should not affect the obligations on the part of
the Member States concerning the deadlines for the transposition of the
Directives set out in Annex X, Part B,

TABLE OF CONTENTS
Page
Article 1: Scope and definitions . 5
Title I: Telecommunications terminal equipment . 5
Title II: Satellite earth station equipment . 8
Title III: Common provisions . 11
Annex I: EC type-examination . 13
Annex II: Conformity of type . 15
Annex III: Production quality assurance . 16
Annex IV: Full quality assurance . 18
Annex V: Minimum criteria to be taken into account by Member States when
designating notified bodies in accordance with Article 11 (1). 20
Annex VI: Marking for the terminal equipment referred to in Article 12 (1) . 21
Annex VII: Marking for the equipment referred to in Article 12 (4) . 21
Annex VIII: Model of declaration referred to in Article 3 (1) . 22
Annex IX: Community internal production control procedure . 23
Annex X: Part A — list of repealed Directives and provisions . 24. Part B — list
of deadlines for transposition into national laws . 24
Annex XI: Correlation table . 25
Article 1
Scope and definitions
1. This Directive shall apply to terminal equipment and to satellite earth
station equipment.
- ‘public telecommunications network’ shall mean the public tele-
communications infrastructure which permits the conveyance of
signals between defined network termination points by wire, by
microwave, by optical means or by other electromagnetic means,
- ‘terminal equipment’ shall mean equipment intended to be con-
nected to the public telecommunication network, namely:
98/13/EC 397
(a) to be connected directly to the termination of a public

telecommunications network; or
(b) to interwork with a public telecommunications network being
connected directly or indirectly to the termination of a public
telecommunications network in order to transmit, process or
receive information.
The system of connection may be wire, radio, optical or other
electromagnetic system,
~ ‘technical specification’ shall mean a specification contained in a
document which lays down the characteristics required of a product
such as levels of quality, performance, safety or dimensions,
including the requirements applicable to the product as regards
terminology, symbols, testing and test methods, packaging, mark-
ing and labelling,
- ‘standard’ shall mean a technical specification adopted by a
recognised standards body for repeated or continuous application,
compliance with which is not compulsory,
- ‘satellite earth station equipment’ shall mean equipment which is
capable of being used either for transmission only, or for transmis-
sion and reception (transmission-receive), or for reception only
(receive-only), of radio-communication signals by means of satel-
lites or other space-based systems, but excluding satellite earth
station equipment intended for use as part of the public telecommu-
nications network of a Member State,
~ ‘terrestrial connection to the public telecommunications network’
shall mean any connection to the public telecommunications net-
work which does not include a space segment.
TITLE!
TELECOMMUNICATIONS TERMINAL EQUIPMENT
CHAPTER I
PLACING ON THE MARKET AND FREE CIRCULATION
Article 2
The intended purpose of the equipment shall be declared by the manufacturer
or supplier of the equipment. However, terminal equipment within the meaning
of Article 1 (2), second indent, which makes use of a system of communication
employing the radio frequency spectrum is presumed to be intended for
connection to the public telecommunications network.
Article 3
1. Notwithstanding Articles 1 and 2, equipment which is capable of being
connected to the public telecommunications network, but is not intended
for such a purpose, shall be accompanied by a manufacturer’s or supplier’s
declaration, the model of which is to be found in Annex VIII and by the
operating manual. At the time of placing the equipment on the market for
the first time, a copy of such documentation shall be transmitted to the
notified body referred to in Article 11 (1) in the Member State where this
first placing on the market takes place. In addition, such equipment shall
be subject to the provisions of Article 12 (4).
2. The manufacturer or supplier shall be prepared to justify once, at the
request of any notified body referred to in Article 11 (1), the intended
purpose of such equipment on the basis of its relevant technical
characteristics, its functions and indications of the market segment it is
intended for.
Article 4
1. Member States shall take all appropriate measures to ensure that
terminal equipment may be placed on the market and put into service
only if it bears the CE marking provided for in Article 12 attesting to its
conformity to the requirements of this Directive, including the confor-
mity assessment procedures laid down in Chapter II and where it is
properly installed and maintained and used for its intended purpose.
2. Member States shall also take all appropriate measures to ensure that
equipment referred to in Article 3 may be placed and allowed to remain
on the market only if it complies with the requirements laid down by this
Directive for this equipment and may not be connected to the public
telecommunications network within the meaning of Article 1 (2), first
indent.
3. | Member States shall also take all appropriate measures to ensure that
terminal equipment or equipment referred to in Article 3 is disconnected
from the public telecommunications network if it is not used for its
intended purpose. Member States may moreover take all appropriate
measures, according to their national laws, to prevent connection to the
public telecommunications network of terminal equipment that is not
used in conformity with its intended purpose.
4. (a) Where the terminal equipment is subject to other Directives
concerning other aspects and which also provide for the affixing of
the CE marking, the latter shall indicate that the equipment is also
presumed to conform to the provisions of those other Directives;
(b) however, where one or more of those Directives allow the manu-
facturer, during a transitional period, to choose which arrange-
ments to apply, the CE marking shall indicate conformity to the
provisions only of those Directives applied by the manufacturer. In
such a case, particulars of the Directives applied, as published in the
Official Journal of the European Communities, must be given in the
documents, notices or instructions required by the Directives and
accompanying the terminal equipment.
Article 5
Terminal equipment shall satisfy the following essential requirements:
OS/IBTEC 1399
(a) user safety, in so far as this requirement is not covered by Directive 73/
23/EEC. For the purposes of this Directive, the essential requirements
shall imply the safety of persons in the same way as in Directive 73/23/
EEC;
(b) safety of employees of public telecommunications networks operators, in
so far as this requirement is not covered by Directive 73/23/EEC;
(c) electromagnetic compatibility requirements in so far as they are specific
to terminal equipment;
(d) protection of the public telecommunications network from harm;
(e) effective use of the radio frequency spectrum, where appropriate;
(f) interworking of terminal equipment with public telecommunications
network equipment for the purpose of establishing, modifying, charging
for, holding and clearing real or virtual connection;
(g) interworking of terminal equipment via the public telecommunications
network, in justified cases.
The cases where terminal equipment supports:

(i) reserved service according to Community law; or
(il) a service for which the Council has decided that there should be
Community-wide availability,
are considered as justified cases and the requirements concerning this
interworking are determined in accordance with the procedure provided
for in Article 29. In addition, after consultation of representatives of the
bodies referred to in Article 28 (3) and taking due account of the result of
these consultations, the Commission may propose that this essential
requirement be recognised as being justified for other terminal equipment
in accordance with the procedure provided for in Article 29.
Article 6
Member States shall not impede the placing on the market and the free
circulation and use on their territory of terminal equipment which complies
with the provisions of this Directive.
Article 7
l. Member States shall presume compliance with the essential requirements
referred to in Article 5 (a) and (b) in respect of terminal equipment which
is in conformity with the national standards implementing the relevant
harmonised standards, the references of which have been published in the
publish the references of such national standards.
Article 29, adopt:
— as a first step, the measures identifying the type of terminal
equipment for which a common technical regulation is required, as
well as the associated scope statement for that regulation, with a
view to its transmission to the relevant standardisation bodies,
= as a second step, once they have been prepared by the relevant

standardisation bodies, the corresponding harmonised standards,
to in Article 5 (c) to (g), which shall be transformed into common
Article 8
Where a Member State or the Commission considers that the harmonised
standards referred to in Article 7 exceed or do not entirely meet the essential
requirements referred to in Article 5, the Commission or the Member State
concerned shall bring the matter before the Committee referred to in Article
28, giving the reasons therefor. The Committee shall deliver an opinion as soon
as possible.
In the light of the Committee’s opinion and after consultation of the standing
Committee set up by Directive 83/189/EEC, the Commission shall inform the
Member States whether or not it is necessary to withdraw reference to those
standards and any related technical regulations from the Official Journal of the
European Communities and shall take the necessary steps to correct the
shortcomings noted in the standards.
Article 9
1. Where a Member State finds that terminal equipment bearing the
markings under the provision laid down in Chapter III does not comply
with the relevant essential requirements when properly used in accor-
dance with the purpose intended by the manufacturer, it shall take all
appropriate measures to withdraw such products from the market or to
prohibit or restrict their being placed on the market.
The Member State concerned shall immediately inform the Commission
of any such measure indicating the reasons for its decision, and in
particular whether non-compliance is due to:
(a) incorrect application of the harmonised standards or common
technical regulations referred to in Article 7;
(b) shortcomings in the harmonised standards or common technical
regulations themselves referred to in Article 7.
2. The Commission shall enter into consultation with the parties concerned
as soon as possible. Where, after such consultation, the Commission finds
that any measure as referred to in paragraph 1 is justified it shall
immediately so inform the Member State that took the action and the
other Member States. Where the decision referred to in paragraph 1 is
attributed to shortcomings in the harmonised standards or common
technical regulations, the Commission, after consulting the parties
concerned, shall bring the matter before the committee referred to in
Article 28 within two months if the Member State which has taken the
98/13/EC 401
measure intends to maintain them, and shall initiate the procedure

referred to in Article 8.
Where terminal equipment which does not comply with the relevant
essential requirements bears the CE marking the competent Member State
shall take appropriate action against whomsoever has affixed the marking
and shall inform the Commission and the other Member States thereof.
The Commission shall keep the Member States informed of the progress
and outcome of the procedure.
CHAPTER II
Article 10
1 According to the choice of the manufacturer or his authorised represen-
tative established within the Community, terminal equipment shall be
subject to either the EC type-examination, as described in Annex I, or to
the EC declaration of conformity, as described in Annex IV.
An EC type-examination, as described in Annex I, shall be accompanied
by a declaration issued according to the EC declaration of conformity to
type procedure, as described in Annex II or Annex III.
The records and correspondence relating to the procedure referred to in
this Article shall be in an official language of the Member State where the
said procedure will be carried out, or in a language acceptable to the
notified body involved.
Article 11
i; Member States shall notify the Commission and the other Member States
of the bodies established within the Community which they have
designated for carrying out the certification, product checks and asso-
ciated surveillance tasks pertaining to the procedures referred to in
Article 10, together with the identification numbers assigned to them
beforehand by the Commission.
Member States shall apply the minimum criteria set out in Annex V for
the designation of such bodies. Bodies that satisfy the criteria fixed by the
relevant harmonised standards shall be presumed to satisfy the criteria
set out in Annex V.
Member States shall inform the Commission of test laboratories estab-
lished in the Community which they have designated for carrying out
tests pertaining to the procedures referred to in Article 10. Notified
bodies shall apply the criteria fixed by the appropriate parts of the
relevant harmonised standards for the designation of such laboratories.
The Commission shall publish in the Official Journal of the European
Communities a list of notified bodies together with their identification
numbers and a list of test laboratories, together with the tasks for which
they have been designated, and shall ensure that those lists are kept up to
date.
A Member State having designated a notified body or a test laboratory

under paragraph | or 2 shall annul the designation if the notified body or
the test laboratory no longer meets the relevant criteria for designation.
It shall immediately inform the other Member States and the Commis-
sion accordingly and withdraw the notification. Where a Member State or
the Commission considers that a notified body or a test laboratory
designated by a Member State does not meet the relevant criteria the
matter shall be brought before the committee referred to in Article 28,
which shall give its opinion within three months; in the light of the
committee’s opinion the Commission shall inform the Member State
concerned of any changes needed if that notified body or test laboratory
is to retain its recognised status.
In order to facilitate the determination of conformity of terminal
equipment with technical regulations and standards, the notified bodies
shall recognise documentation issued by third country relevant bodies,
when agreements between the Community and the third country con-
cerned have been concluded on the basis of a mutually satisfactory
understanding.
The notified bodies shall, when issuing an EC type-examination certifi-
cate as referred to in Annex I, followed by the appropriate document
referred to in Annex II or III, or a decision on quality assurance
assessment as referred to in Annex IV, issue at the same time an
administrative approval for the connection of the concerned terminal
equipment to the public telecommunications network.
CHAPTER III
Article 12
1: The marking of terminal equipment complying with this Directive shall
consist of the CE marking consisting of the initials CE, followed by the
identification number of the notified body involved in the production
control stage and a symbol indicating that the equipment is intended and
is suitable to be connected to the public telecommunications network.
The form of CE marking to be used, together with the other information,
is shown in Annex VI.
The affixing of markings on the equipment which are likely to deceive
third parties as to the meaning and form of the CE marking specified in
Annexes VI and VII shall be prohibited. Any other marking may be
affixed to the equipment provided that the visibility and legibility of the
CE marking is not thereby reduced.
Terminal equipment shall be identified by the manufacturer by means of
type, batch number and/or serial number and by the name of the
manufacturer and/or supplier responsible for placing it on the market.
98/13/EC 403
4. Equipment manufacturers or suppliers who place on the market equip-

ment as referred to in Article 3 shall affix the symbol specified in Annex
VII in such a way that it follows the initials CE as shown in Annex VI and
visually forms an integral part of the total marking.
Article 13
Without prejudice to Article 9:
(2) where a Member State establishes that the CE marking has been affixed
improperly, the manufacturer or his authorised representative established
within the Community shall be obliged to make the equipment conform
with the provisions concerning the CE marking and to end the infringe-
ment under the conditions imposed by the Member State;
(b) where non-conformity continues, the Member State must take all appro-
priate measures to restrict or prohibit the placing on the market of the
equipment in question or to ensure that it is withdrawn from the market
in accordance with the procedures laid down in Article 9.
TIFLE AI
SATELLITE EARTH STATION EQUIPMENT
CHAPTER I
PLACING ON THE MARKET AND FREE CIRCULATION
Article 14
The manufacturer or supplier of satellite earth station equipment shall declare
whether the equipment is intended or not intended for terrestrial connection to
the public telecommunications network.
Article 15
1. | Member States shall take all appropriate measures to ensure that receive-
only satellite earth station equipment not intended for terrestrial connec-
tion to the public telecommunications network may be placed on the
market and put into service and used on their territory, in conformity
with national law compatible with Community law, provided that it
installed and maintained and used for its intended purposes.
Such use must be in conformity with any national law, compatible with
Community law, which restricts the use to the reception of services
intended for that user.
2. | Member States shall take all appropriate measures to ensure that other
satellite earth station equipment may be placed on the market only if it
installed and maintained and used for its intended purposes. The use of
such equipment may be subject to licensing in conformity with Commu-
nity law.
3 Member States shall also take all appropriate measures to ensure that
connection to the public telecommunications network is not permitted to
be connected to the public telecommunications network.
connection to the public telecommunications network is disconnected
from the public telecommunications network.
Member States shall moreover take all appropriate measures, according
to their national laws, to prevent terrestrial connection to the public
telecommunications network of such equipment.
Article 16
Member States shall not impede the free circulation and the placing on the
market of satellite earth station equipment conforming to the provisions of this
Directive.
Article 17
ie Satellite earth station equipment shall satisfy the same essential require-
ments as those set out in Article 5.
De, For the purpose of this Directive, the essential requirements of Article 5
(a) shall imply the safety of persons in the same way as in Directive 73/
23/EEC.
In the context of transmission or transmission-receive satellite earth
station equipment, the essential requirement set out in Article 5 (e)
concerning effective use of the radio frequency spectrum shall include
the effective use of orbital resources and the avoidance of harmful
interference between space-based and terrestrial communications sys-
tems and other technical systems.
In the context of satellite earth station equipment, electromagnetic
compatibility requirements in so far as they are specific to satellite earth
station equipment shall be subject to the essential requirement set out in
Article 5 (c).
out in Article 5 (f) regarding the interworking of satellite earth station
equipment with the public telecommunications network.
out in Article 5 (g) regarding the interworking of satellite earth station
equipment via the public telecommunications network in justified cases.
Cases where satellite earth station equipment is capable of supporting
and intended to.support a service for which the Council has decided that
there should be Community-wide availability are considered as justified
cases and the requirements concerning this interworking shall be deter-
Notwithstanding paragraphs 1, 5 and 6, satellite earth station equipment
which is not intended for connection to the public telecommunications
98/13/EC 405
network shall not be required to satisfy the essential requirements set out
in Article 5 (b), (d), (f) and (g).
Article 18
iE Member States shall presume compliance with the essential requirements
referred to in Article 5 (a) and (b) in respect of satellite earth station
equipment which is in conformity with the national standards implement-
ing the relevant harmonised standards, the references of which have been
published in the Official Journal of the European Communities. Member
States shall publish the references of such national standards.
Article 29, adopt:
- as a first step, the measures identifying the type of satellite earth
station equipment for which a common technical regulation is
required, as well as the associated scope statement for that regula-
tion, with a view to its transmission to the relevant standardisation
bodies,
- as a second step, once they have been prepared by the relevant
standardisation bodies, the corresponding harmonised standards,
to in Article 17 (3) to (6), which shall be transformed into common
Article 19
Where a Member State or the Commission considers that the harmonised
standards referred to in Article 18 exceed or do not entirely meet the relevant
essential requirements referred to in Article 17, the same enquiry and
notification procedures shall apply as those set out in Article 8.
Article 20
le Where a Member State finds that satellite earth station equipment
bearing the marking under the provisions laid down in Chapter III of
this Title does not comply with the relevant essential requirements when
properly used in accordance with the purpose intended by the manufac-
turer, the same measures, information and consultation procedures shall
apply as those set out in Article 9 (1), (2) and (4).
Where satellite earth station equipment which does not comply with the
relevant essential requirements bears the CE marking, the competent
Member State shall take appropriate action against whomsoever has
affixed the marking. The same notification procedures shall apply as
those set out in Article 9 (3) and (4).
CHAPTER II
Article 21
1. All transmission or transmission-receive satellite earth station equipment
shall, according to the choice of the manufacturer or his authorised
representative established with the Community, be subject to all the
provisions of Article 10 (1) and (2) concerning conformity assessment.
2. The same procedures regarding language requirements shall apply as
those set out in Article 10 (3).
Article 22
Receive-only satellite earth station equipment which is intended for terrestrial
connection to the public telecommunications network shall, as far as its
terrestrial interface is concerned, be subject to the provisions of Article 21 (1)
concerning conformity assessment while, as far as other elements are con-
cerned, they shall be subject either to the provisions of Article 21 (1) or to the
Community internal production control procedure set out in Annex IX.
Article 23
Receive-only satellite earth station equipment which is not intended for
terrestrial connection to the public telecommunications network shall be
subject either to the provisions of Article 21 (1) or to the Community internal
production control procedure set out in Annex IX.
Article 24
In addition to the provisions of Articles 21, 22 and 23, satellite earth station
equipment which is not intended for connection to the public telecommunica-
tions network shall be accompanied by a manufacturer’s or supplier’s declara-
tion made and transmitted in accordance with the same procedures as those set
out in Article 3 and Annex VIII.
Article 25
In relation to satellite earth station equipment, the same procedures for notified
bodies and test laboratories shall apply as those set out in Article 11 and Annex V.
CHAPTER III
Article 26
1. The marking of satellite earth station equipment complying with this
Directive shall consist of the CE marking consisting of the initials ‘CE’,
followed by the identification number of the notified body responsible
and, where relevant, by a symbol indicating that the equipment is
intended and is suitable to be connected through a terrestrial connection
to the public telecommunications network. The ‘CE’ symbol, the identi-
fication number and the symbol of suitability shall be the same as those
shown in Annex VI.
98/13/EC 407
The affixing of marks which are likely to be confused with the CE

marking referred to in paragraph | above shall be prohibited.
Satellite earth station equipment shall be identified by the manufacturer
by means of type, batch number and/or serial number and by the name of
the manufacturer and/or supplier responsible for placing it on the
market.
Notwithstanding paragraph 1, the marking of receive-only satellite earth
station equipment which is not intended for terrestrial connection to the
public telecommunications network and which has been subject to the
Community internal production control procedure set out in Annex IX
shall consist of the CE marking, consisting of the initials ‘CE’.
Article 27
Where it is established that the marking referred to in Article 26 (1) of this
Directive has been affixed to satellite earth station equipment which:
does not conform to an approved type, or
requirements applicable to it,
or where the manufacturer has failed to fulfil his obligations under the
relevant Community declaration of conformity, the same procedures
shall apply as those set out in Article 13.
EEPEE TT
COMMON PROVISIONS
CHAPTER I
COMMITTEE
Article 28
1. |The Commission shall be assisted by a committee of an advisory nature
representative of the Commission. The committee shall be called the
Approvals Committee for Terminal Equipment (ACTE).
draft of the measure to be taken. The Committee shall deliver its opinion
minutes.
The Commission shall periodically consult the representatives of the
telecommunications organisations, the users, the consumers, the manu-
facturers, the service providers and trade unions and shall inform the
committee on the outcome of such consultations, with a view to taking
due account of the outcome.
Article 29
ie Notwithstanding Article 28 (1) and (2), the following procedure shall
apply for matters covered by Article 5 (g), Article 7 (2), Article 17 (6) and
Article 18 (2).
The representative of the Commission shall submit to the committee
referred to in Article 28 a draft of the measures to be taken as referred to
in Article 5 (g), Article 7 (2), Article 17 (6) and Article 18 (2). 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.
(a) The Commission shall adopt the measures envisaged if they are in
(b) Ifthe measures envisaged are not in accordance with the opinion of
the committee, or if no opinion is delivered, the Commission shall,
without delay, submit to the Council a proposal relating to the
measure to be taken. The Council shall act by qualified majority.
If, within three months from the date of referral to it, the Council
has not acted, the proposed measure shall be adopted by the
Commission.
CHAPTER II
Article 30
1. The Commission shall draw up every second year a report on the
implementation of this Directive, including progress on drawing up the
relevant harmonised standards and on transforming them into technical
regulations, as well as any problems that have arisen in the course of
implementation. The report will also outline the activities of the commit-
tee, and assess progress in achieving an open competitive market for
terminal equipment at Community level consistent with the essential
requirements referred to in Article 5.
The Commission shall, when submitting those draft measures referred to
in Article 18 (2) dealing with common technical regulations, ensure that
transition arrangements, where appropriate, form part of the draft
measures.
98/13/EC 409
Article 31
Article 10 (5) of Directive 89/336/EEC shall not apply to equipment falling
within the scope of this Directive.
Article 32
L. Any type approval granted by Member States in accordance with
Directive 86/361 /EEC [12] may remain valid under the legislation of the
Member States within the criteria of validity appropriate to the original
approval.
2. Measures adopted pursuant to Directive 86/361EEC shall be submitted
to the committee under the procedure of Article 29 for possible transposi-
tion into common technical regulations.
Article 33
Article 34
ig The Directives and provisions listed in Annex X, Part A, are hereby
repealed without prejudice to the obligations of the Member States
concerning the deadlines for transposition of the said Directives set out
in Annex X, Part B.
2. References to the repealed Directives shall be construed as references to
this Directive and should be read in accordance with the correlation table
in Annex XI.
Article 35
Article 36
Done at Brussels, 12 February 1998.

The President
J. M. GIL-ROBLES
For the Council
The President
J. BATTLE
(1) OJ C 204, 15.7.1996, p. 3.

(2) Opinion of the European Parliament of 22 May 1996 (OJ C 166, 10.6.1996, p. 60), Council
Common Position of 16 October 1997 (OJ C 375, 10.12.1997, p. 48) and Decision of the
European Parliament of 19 November 1997. Council Decision of 18 December 1997.

30.8.1993, p. 1).
(4) OJ L 290, 24.11.1993, p. 1.
(5) OJ C 257, 4.10.1988, p. 1.
(6) OJ C 8, 14.1.1992, p. 1.
(7) OUT 36721987 0. SU
(8) OJ C 136, 4.6.1985, p. 1.
30.8.1993, p. 1).
(10) OJ L 109, 26.4.1983, p. 8. Directive as last amended by Directive 94/10/EC (OJ L 100,
19.4.1994, p. 30).
(1) OJ L 139, 23.5.1989, p. 19. Directive as last amended by Directive 93/68/EEC (OJ L 220,
30.8.1993, p. 1).
(12) OJ L 217, 5.8.1986, p. 21. Directive repealed by Directive 91/263/EEC.
ANNEXI
EC type-examination
EC type-examination is that part of the procedure whereby a notified

body ascertains and attests that a specimen, representative of the
production envisaged, meets the provisions of the Directive that apply
to it.
The application for the EC type-examination shall be lodged by the
manufacturer or his authorised representative established within the
Community with a notified body of his choice.
— the name and address of the manufacturer and, if the application is
lodged by the authorised representative, his name and address in
addition,
~ a written declaration that the same application has not been lodged
with any other notified body,
~ the technical documentation, as described in point 3.
The applicant shall place at the disposal of the notified body a specimen,
representative of the production envisaged and hereinafter called ‘type’
(1). The notified body may request further specimens if needed for
carrying out the test programme.
The technical documentation shall enable the conformity of the product
with the essential requirements of the Directive to be assessed. It shall, as
far as relevant for such assessment, cover the design, manufacture and
operation of the product.
For example, the documentation shall contain as far as is relevant for
assessment:
- a general type-description sufficient to identify the product pre-

ferably by provision of photographs,
- design and manufacturing drawings and lists of components, sub-
assemblies, circuits, etc.,
98/13/EC 411

- a list of the standards referred to in Article 7, applied in full or in
part, and descriptions of the solutions adopted to meet the essential
requirements of the Directive when the standards referred to in
Article 7 have not been applied,
a results of examinations carried out, etc.,
- test reports,
- proposed user information or handbook.
The notified body shall:
4.1. examine the technical documentation, verify that the type has been
manufactured in conformity with it and identify the elements which
have been designed in accordance with the relevant provisions of
the standards referred to in Article 7 (1), as well as the components
of those standards;
necessary tests to check whether the solutions adopted by the
manufacturer meet the essential requirements of the Directive
which are specified in Article 5 (a) and (b);
necessary tests to check that the type meets the relevant common
technical regulations specified in Article 7 (2);
4.4. agree with the applicant on the location where the examinations and
necessary tests are to be carried out.
Where the type meets the provisions of the Directive, the notified body
shall issue an EC type-examination certificate to the applicant. The
certificate shall contain the name and address of the manufacturer,
conclusions of the examination, conditions for its validity and the
necessary data for identification of the approved type.
A list of the relevant parts of the technical documentation shall be
annexed to the certificate and a copy kept by the notified body.
The applicant shall inform the notified body that holds the technical
documentation concerning the EC type-examination certificate of all
modifications to the approved product which must receive additional
approval where such changes may affect the conformity with the essential
requirements or the prescribed conditions for use of the product. This
additional approval is given in the form of an addition to the original EC
type-examination certificate.
Each notified body shall communicate to the other notified bodies the
relevant information concerning the EC type-examination certificates
and additions issued and withdrawn.
The other notified bodies may request copies of the EC type-examination
certificates and/or their additions. The Annexes to the certificate shall be
kept at the disposal of the other notified bodies.
LF The manufacturer or his authorised representative shall keep with the

technical documentation copies of EC type-examination certificates and
their additions for a period ending at least 10 years after the last product
has been manufactured.
Where neither the manufacturer nor his authorised representative is
differences between the versions do not affect the level of safety and the other
requirements concerning the performance of the product.
ANNEX II
Conformity to type’
Conformity to type is that part of the procedure whereby the manufac-

turer or his authorised representative established within the Community
ensures and declares that the products concerned are in conformity with
the type as described in the EC type-examination certificate and satisfy
the requirements of the Directive that applies to them. The manufacturer
or his authorised representative established within the Community shall
affix the markings provided for in Article 12 (1) to each product and draw
up a written declaration of conformity to type.
The manufacturer shall take all measures necessary to ensure that the
manufacturing process assures compliance of the manufactured products
with the type as described in the EC type-examination certificate and
with the requirements of the Directive that apply to them.
The manufacturer or his authorised representative shall keep a copy of
the declaration of conformity for a period ending at least 10 years after
the last product has been manufactured.
established within the Community, the obligation to keep the declaration
of conforming to type available shall be the responsibility of the person
who places the product on the Community market.
A notified body chosen by the manufacturer shall carry out, or have
carried out, product checks at random intervals. An adequate sample of
the final products, which may be taken on site by the notified body or on
its behalf, shall be examined and appropriate tests shall be carried out to
check the conformity of products with the relevant requirements of the
Directive. In those cases where one or more of the products checked do
not conform, the notified body shall take appropriate measures.
98/13/EC A413
ANNEX III
Production quality assurance
Production quality assurance is the procedure whereby the manufacturer

who satisfies the obligations of point 2 ensures and declares that the
products concerned are in conformity with the type as described in the
EC type-examination certificate and satisfy the requirements of the
Directive that apply to them. The manufacturer or his authorised
representative established within the Community shall affix the markings
provided for in Article 12 (1) to each product and draw up a written
declaration of conformity to type.
The manufacturer shall operate an approved quality system for produc-
tion, final product inspection and testing as specified in point 3 and shall
be subject to monitoring as specified in point 4.
Quality system
quality system with a notified body of his choice, for the products
concerned.
- all relevant information for the product category envisaged,
- the documentation concerning the quality system,
- if applicable, the technical documentation of the approved
type and a copy of the EC type-examination certificate.
type as described in the EC type-examination certificate and with
the requirements of the Directive that apply to them.
The quality system documentation must permit a consistent inter-
pretation of the quality programmes, plans, manuals and records.
- the quality objectives and the organisational structure, re-
product quality,
- the manufacturing, quality control and quality assurance
techniques, processes and systematic actions that will be used,
— the examinations and tests which will be carried out before,
they will be carried out,
- the quality records, such as inspection reports and test data,
Genned mete.
— the means to monitor the achievement of the required product

quality and the effective operation of the quality system.
Seo The notified body shall assess the quality system to determine
presume conformity with these requirements in respect of quality
systems that implement the relevant harmonised standard [1].
The auditing team shall have at least one member with experience
of evaluation in the product technology concerned. The evaluation
procedure shall include an inspection visit to the manufacturer’s
premises.
The manufacturer or his authorised representative shall keep the
requirements referred to in point 3.2 or whether a re-assessment is
required.
contain the conclusions of the examinations and the reasoned
4. Surveillance under the responsibility of the notified body.
system.
tion purposes to the locations of manufacture, inspection and
testing, and storage and shall provide it with all necessary informa-
tion, in particular:
cerned, etc.
manufacturer. During such visits the notified body may carry out,
98/13/EC 415
or cause to be carried out, tests to verify that the quality system is

functioning correctly, if necessary. The notified body shall provide
the manufacturer with a visit report and, if a test has taken place,
with a report.
5. |The manufacturer shall, for a period ending at least 10 years after the last
authorities:
- the documentation referred to in the second indent of point 3.1,
— the updating referred to in the second paragraph of point 3.4,
to in the final paragraph of points 3.4, 4.3 and 4.4.
6. Each notified body referred to in Article 11 (1) shall make available to the
concerning the quality system approvals issued and withdrawn.
(1) This harmonised standard shall be EN ISO 9002, supplemented, if
necessary, to take into account the specific nature of the procedure for which
it is implemented.
ANNEX IV
1. Full quality assurance is the procedure whereby the manufacturer who

The manufacturer or his authorised representative shall affix the mark-
ings provided for in Article 12 (1) to each product and draw up a written
declaration of conformity.
2. The manufacturer shall operate an approved quality system for design,
3 and shall be subject to surveillance as specified in point 4.
3. Quality system
quality system with a notified body.
~ all relevant information for the products envisaged,
- the quality system documentation.
requirements of the Directive that apply to them.
This quality system documentation shall ensure a common under-

standing of the quality policies and procedures such as quality
programmes, plans, manuals and records.
— the quality objectives and the organisational structure, re-
the technical specifications, including the harmonised stan-
referred to in Article 7 (1) will not be applied in full, the means
will be used to ensure that the essential requirements of the
Directive that apply to the products will be met,
the design control and design verification techniques, pro-
cesses and systematic actions that will be used when designing
the products pertaining to the product category covered,
the corresponding manufacturing, quality control and quality
will be used,
~ the examinations and tests which will be carried out before,
they will be carried out; as well as the results of the tests
carried out before manufacture where appropriate,
- the means by which it is ensured that the test and examination
Cenmedmetes:
— the means to monitor the achievement of the required design
system.
cee The notified body shall assess the quality system to determine
systems that implement the relevant harmonised standard [1].
The notified body shall assess in particular whether the quality
supplied in respect of points 3.1 and 3.2 including, where relevant,
The auditing team shall have at least one member experienced as an
assessor in the product technology concerned. The evaluation
procedure shall include an assessment visit to the manufacturer’s
premises.
98/13/EC 417

The manufacturer or his authorised representative shall keep the
requirements referred to in point 3.2 or whether a re-assessment is
required.
4. EC surveillance under the responsibility of the notified body
system.
and testing, and storage and shall provide it with all necessary
- the quality records as foreseen by the design part of the
etes
cerned, etc.
functioning of the quality system where necessary; it shall provide
5. | The manufacturer shall, for a period ending at least 10 years after the last
authorities:
- the documentation referred to in the second indent of point 3.1,

- the updating referred to in the second paragraph of point 3.4,
to in the final paragraph of points 3.4, 4.3 and 4.4.
6. Each notified body referred to in Article 11 (1) shall make available to the
concerning quality system approvals including references to the pro-
duct(s) concerned, issued and withdrawn.
(1) This harmonised standard shall be EN ISO 9001, supplemented, if
necessary, to take into account the specific nature of the products for which it
is implemented.
ANNEX V_.
Minimum criteria to be taken into account by Member States when designating
notified bodies in accordance with Article 11 (1)
1. The notified body, its director and the staff responsible for carrying out
the tasks for which the notified body has been designated shall not be a
designer, manufacturer, supplier or installer of terminal equipment, or a
network operator or a service provider, nor the authorised representative
of any of such parties. They shall not become directly involved in the
design, construction, marketing or maintenance of terminal equipment,
nor represent the parties engaged in these activities. This does not
preclude the possibility of exchanges of technical information between
the manufacturer and the notified body.
2. The notified body and its staff must carry out the tasks for which the
judgment or the results of any inspection, especially from persons or
3. The notified body must have at its disposal the necessary staff and
4. The staff responsible for inspections must have:
— sound technical and professional training,
— satisfactory knowledge of the requirements of the tests or inspec-
tions that are carried out and adequate experience of such tests or
inspections,
~ the ability to draw up the certificates, records and reports required
to authenticate the performance of the inspections.
5. The impartiality of inspection staff must be guaranteed. Their remunera-
98/13/EC 419
6. The notified body must take out liability insurance unless its liability is
assumed by the State in accordance with national law, or the Member
State itself is directly responsible.
7. The staff of the notified body is bound to observe professional secrecy
a-vis the competent administrative authorities of the State in which its
activities are carried out) pursuant to this Directive or any provision of
national law giving effect thereto.
ANNEX VI
Marking for the terminal equipment referred to in Article 12 (1)
- The CE conformity marking shall consist of the initials ‘CE’ taking the
following form, followed by the additional information referred to in
Article 12 (1):
~ If the CE marking is reduced or enlarged the proportions given in the
— The various components of the CE marking must have substantially the
same vertical dimension, which may not be less than 5 mm.
ANNEX VII
Marking for the equipment referred to in article 12 (4)
- If the CE marking is reduced or enlarged the proportions given in the

~ The various components of the CE marking must have substantially the
same vertical dimension, which may not be less than 5 mm.
ANNEX VIII
MODEL OF A DECLARATION referred to in Article 3 (1) of Directive 98/

13/EC of the European Parliament and of the Council of 12 February 1998
relating to telecommunications terminal equipment and satellite earth station
equipment, including the mutual recognition of their conformity (Official
Journal of the European Communities L 74 of 12 March 1998)
ANNEX IX
Community internal production control procedure
This Annex describes the procedure whereby the manufacturer or his

authorised representative established within the Community, who carries
out the obligations laid down in point 2, ensures and declares that the
products concerned satisfy the requirements of this Directive that apply
to them.
The manufacturer must affix the CE marking to each product and draw
up a written declaration of conformity.
in point 3 and he or his authorised representative established within the
Community must keep it, for a period ending at least 10 years after the
last product has been manufactured, at the disposal of the relevant
national authorities for inspection purposes.
Technical documentation must enable the conformity of the products to
be assessed against the requirements of this Directive that apply to them.
It must contain, so far as relevant for assessment:
- a general description of the product,
- conceptual design and manufacturing drawings and lists of compo-
nents, sub-assemblies, circuits, etc.,
— a list of the standards mentioned in Article 18 of this Directive
applied in full or as far as is relevant or, in the absence of such
standards, the technical construction file, and descriptions of the
solutions adopted to meet those requirements of this Directive that
apply to the products,
= results of design calculations made, examinations carried out, etc.,
= test reports.
The manufacturer or his authorised representative must keep a copy of
The manufacturer must take all measures necessary to ensure that the
manufacturing process ensures compliance by the manufactured pro-
ducts with the technical documentation referred to in point 2 and with
those requirements of this Directive that apply to them.
98/13/EC 421
ANNEX X
Part A
Repealed Directives and provisions (referred to in Article 34)

Directive 91/263/EEC
Article 11 of Directive 93/68/EEC
Directive 93/97/EEC
Part B
Deadlines for transposition into national law (referred to in Article 34)

1.1.3. Common Technical Regulations
COMMISSION DECISION OF 17 JUNE 1998 ON A COMMON TECHNICAL

REGULATION FOR LOW DATA RATE LAND MOBILE SATELLITE EARTH STATIONS
(LMES) OPERATING IN THE 11/12/14 GHZ FREQUENCY BANDS (NOTIFIED
UNDER DOCUMENT NUMBER C(1998) 1608) (TEXT WITH EEA RELEVANCE)
(98/516/EC)
Official Journal No. L 232, 19/08/1998 P. 0010

Having regard to Directive 98/13/EC of the European Parliament and of the
Council of 12 February 1998 relating to telecommunciations terminal equip-
ment and satellite earth station equipment, including the mutual recognition of
their conformity [1],
Whereas the Commission has adopted the measure identifying the type of
satellite earth station equipment for which a common technical Regulation is
required, as well as the associated scope statement;
Whereas the corresponding harmonised standards, or parts thereof, imple-
menting the essential requirements which are to be transformed into common
technical regulations should be adopted;
Whereas the common technical Regulation adopted in this Decision is in

accordance with the opinion of ACTE,
HAS ADOPTED THIS DECISION:

Article 1
1. This Decision shall apply to satellite earth station equipment falling
within the scope of the harmonised standard referred to in Article 2 (1).
2. This Decision establishes a common technical Regulation covering the
law data rate land mobile satellite earth stations (LMES) operating in the
11/12/14 GHz frequency bands.
Article 2
1. The common technical Regulation shall include the harmonised stan-
dards prepared by the relevant standardisation body implementing to the
extent applicable the essential requirements referred to in Article 17 of
Directive 98/13/EC. The reference to the standards is set out in the
Annex.
422
2. Satellite earth station equipment covered by this Decision shall comply

with the common technical Regulation referred to in paragraph 1, shall
meet the essential requirements referred to in Article 5 (a) of Directive
98/13/EC, and shall meet the requirements of any other applicable
Directives, in particular Council Directives 73/23/EEC [2] and 89/336/
EEC [3].
Article 3
Notified Bodies designated for carrying out the procedures referred to in
Article 10 of Directive 98/13/EC shall, as regards satellite earth station
equipment covered by Article 1 (1) of this Decision, use or ensure the use of
the harmonised standard referred to in the Annex after the coming into force of
this Decision.
Article 4

For the Commission
Martin BANGEMANN
(1) OJL 74, 12. 3. 1998, p. 1.

(2) OJL77, 26. 3. 1973, p. 29.
(3) OJ L 139, 23. 5. 1989, p. 19.
ANNEX
Reference to the harmonised standard applicable

The harmonised standard referred to in Article 2 of the Decision 1s:
Satellite Earth Stations and Systems (SES);

Low data rate land mobile satellite earth stations (LMES) operating in the 11/
12/14 GHz frequency bands
ETSI
European Telecommunications Standards Institute
ETSI Secretariat
TBR 27 — December 1997
(excluding the foreword)
Additional information
The European Telecommunications Standards Institute is recognised accord-
ing to Council Directive 83/189/EEC (1).
The harmonised standard referred to above has been produced according to a
mandate issued in accordance with the relevant procedures of Directive 83/
189/EEC.
98/516/EC 424
The full text of the harmonised standard referenced above can be obtained
from:
650, route des Lucioles
F-06921 Sophia Antipolis Cedex
European Commission
DG XIII/A/2 — (BU 31, 1/7)
Rue de la Loi/Wetstraat 200
B-1049 Brussels
or from any other organisation responsible for making ETSI standards
available, of which a list can be found on the Internet under address
www.ispo.cec.be.
(1) OJL 109, 26. 4. 1983, p. 8.

REGULATION FOR SATELLITE NEWS GATHERING TRANSPORTABLE EARTH
STATIONS (SNG TES) OPERATING IN THE II—1I2/13-14 GHz FREQUENCY
BANDS (NOTIFIED UNDER DOCUMENT NUMBER C(1998) 1609) (TEXT WITH
EEA RELEVANCE) (98/517/EC)


Article 1
2. This Decision establishes a common technical Regulation covering
satellite news gathering transportable earth stations (SNG TES) operat-
ing in the 11-12/13-14 GHz frequency bands.
Article 2
Annex.
EEC [3].
425
Article 3
this Decision.
Article 4
For the Commission
Martin BANGEMANN
(1) OJL 74, 12. 3. 1998, p. 1.

(OQ) OWE 7a5 2653 19735 p29.
(6) OUTS P35 5a 1989 plo:
ANNEX

The harmonised standard referred to in Article 2 of the Decision is:
satellite news gathering transportable earth stations (SNG TES) operating in
the 11—12/13-14 GHz frequency bands
ETSI
ETSI Secretariat
ing to Council Directive 83/189/EEC [1].
189/EEC.
from:

987 517/EC 427
European Commission
DG XIII/A/2 — (BU 31, 1/7)
B-1049 Brussels

www.ispo.cec.be.
(1) OJ L 109, 26. 4. 1983, p. 8.

REGULATION FOR VERY SMALL APERTURE TERMINALS (VSATS) OPERATING IN
THE 11/12/14 GHZ FREQUENCY BANDS (NOTIFIED UNDER DOCUMENT NUMBER
C(1998) 1612) (TEXT WITH EEA RELEVANCE) (98/519/EC)



Article 1
within the scope of the harmonised standard referred to in Article 2(1).
2. This Decision establishes a common technical Regulation covering very
small aperture terminals (VSATs) operating in the 11/12/14 GHz
frequency bands.
Article 2
Annex.
EEC [3];
428
Article 3
this Decision.
Article 4

For the Commission
Martin BANGEMANN
GM) OF L74, 12535 1998p. 1.
Wy Qe Gt, AO: Ss Iie.
(3) OFT 1393235501989; p19:
ANNEX

very small aperture terminal (VSAT); Transmit-only, transmit/receive or
receive-only satellite earth stations operating in the 11/12/14 GHz frequency
bands
ETSI
ETSI Secretariat
189/EEC.
from:

98/519/EC 430
European Commission
DG XIII/A/2 — (BU 31, 1/7)
B-1049 Brussels
www. ispo.cec.be.
(1) OJL 109, 26. 4. 1983, p. 8.

COMMISSION DECISION OF 3 SEPTEMBER 1998 ON A COMMON TECHNICAL
REGULATION FOR SATELLITE PERSONAL COMMUNICATIONS NETWORKS (S-
PCN) MosiLe EarTH STATIONS (MESs), INCLUDING HANDHELD EARTH
STATIONS, FOR S-PCN OPERATING IN THE 2.0 GHZ FREQUENCY BANDS UNDER
THE MOBILE SATELLITE SERVICE (MSS) (NOTIFIED UNDER DOCUMENT NUMBER
C(1998) 2376) (TEXT wITH EEA RELEVANCE) (98/534/EC)

Council of 12 February 1998 relating to telecommunications terminal equip-
their conformity [1], and in particular Article 7 (2), second indent, thereof,
satellite earth station equipment for which a common technical regulation is
required, as well as the associated scope statement according to Article 7 (2),
first indent;

Whereas the proposal has been submitted to the Committee (ACTE), accord-
ing to Article 29 (2);
Whereas the common technical regulation to be adopted in this Decision is in

Article 1
Satellite Personal Communications Networks (S-PCN), Mobile Earth
Stations (MESs), including handheld earth stations, for S-PCN operating
in the 2.0 GHz frequency bands under the Mobile Satellite Service (MSS).
Article 2
1. |The common technical Regulation shall include the harmonised standard
prepared by the relevant standardisation body implementing to the extent
applicable the essential requirements referred to in Article 17 of Directive
98/13/EC. The reference to the standard is set out in the Annex.
with the common technical regulation referred to in paragraph 1, shall
431

EEC [3].
Article 3
this Decision.
Article 4
Done at Brussels, 3 September 1998.

For the Commission
Martin BANGEMANN
(1) OJL 74, 12. 3. 1998, p. 1.

(2) OJL77, 26. 3. 1973, p. 29.
(3) OJ L 139, 23. 5. 1989, p. 19.
ANNEX

Satellite Personal Communications Networks (S-PCN); Mobile Earth Stations

(MESs), including handheld earth stations, for S-PCN in the 2.0 GHz bands
under the Mobile Satellite Service (MSS)
Terminal essential requirements
(in language versions other than the English version a translation of this title
should be placed here within brackets)
ETSI
ETSI Secretariat
TBR 42 — February 1998
98/534/EC 433

189/EEC.
from:
European Commission
DG XIII/A/2 — (BU 31, 1/7)
B-1049 Brussels
www.ispo.cec.be.
(1) OJL 109, 26. 4. 1983, p. 8.

REGULATION FOR SATELLITE PERSONAL COMMUNICATIONS NETWORKS (S-
PCN) MobILeE EARTH STATIONS (MESs), INCLUDING HANDHELD EARTH
STATIONS, FOR S-PCN OPERATING IN THE 1.6/2.4 GHZ FREQUENCY BANDS
UNDER THE MOBILE SATELLITE SERVICE (MSS) (NOTIFIED UNDER DOCUMENT
NUMBER C(1998) 2375) (TEXT WITH EEA RELEVANCE) (98/533/EC)

satellite earth station equipment for which a common technical regulation is
required, as well as the associated scope statement according to Article 7 (2),
first indent;
Whereas the proposal has been submitted to the committee (ACTE), according
to Article 29 (2);


Article 1
Satellite Personal Communications Networks (S-PCN), Mobile Earth
Stations (MESs), including handheld earth stations, for S-PCN operating
in the 1.6/2.4 GHz frequency bands under the Mobile Satellite Service
(MSS).
Article 2
1. |The common technical Regulation shall include the harmonised standard
98/13/EC. The reference to the standard is set out in the Annex.
434

EEC [3].
Article 3
Notified bodies designated for carrying out the procedures referred to in
this Decision.
Article 4
Official Journal No. L 247, 05/09/1998 P. OO1L1
For the Commission
Martin BANGEMANN
Gi) OY 74; Dass 1O98sip: 1:

Cm OnE (a26n3 e9IBps29s
(6) MOTE 1395235 Se 1989 hipaa:
ANNEX

Satellite Personal Communications Networks (S-PCN); Mobile Earth Stations
(MESs), including handheld earth stations, for S-PCN in the 1.6/2.4 GHz
bands under the Mobile Satellite Service (MSS)
Terminal essential requirements
(in language versions other than the English version a translation of this title
should be placed here within brackets)
ETSI
ETSI Secretariat
TBR 41 — February 1998
98/533/EC 436

189/EEC.
from:

650 route des Lucioles
European Commission
DG XIII/A/2 — (BU 31, 1/7)
B-1049 Brussels

www. ispo.cec.be.
(1) OJL 109, 26. 4. 1983, p. 8.

REGULATION FOR LOW DATA RATE LAND MOBILE SATELLITE EARTH STATIONS
(LMES) OPERATING IN THE 1.5/1.6 GHZ FREQUENCY BANDS (NOTIFIED
UNDER DOCUMENT NUMBER C(1998) 2724) (TEXT WITH EEA RELEVANCE)
(98/578/EC)


terminal equipment for which a common technical regulation is required, as
well as the associated scope statement according to Article 7 (2), first indent
Whereas in order to ensure continuity of access to markets for manufacturers,
it is necessary to allow for transitional arrangements regarding equipment
approved according to national type-approval regulations;
Whereas the proposal has been submitted to the Committee (ACTE), accord-
ing to Article 29 (2);

Article 1
1. This Decision shall apply to terminal equipment intended to be con-
nected to a public telecommunications network and falling within the
scope of the harmonised standard identified in Article 2 (1).
2. This Decision establishes a common technical regulation covering the
low data rate land mobile satellite earth stations (LMES) operating in the
1.5, 1.6 GHz frequency bands.
437
438 Telcommunications
Article 2
i The common technical Regulation shall include the harmonised standard
98/13/EC. The reference to the standard is set out in the Annex I.
Satellite earth station equipment covered by this Decision shall comply
meet the essential requirements referred to in Article 5 (a) and (b) of
Directive 98/13/EC, and shall meet the requirements of any other
applicable Directives, in particular Council Directives 73/23/EEC [2]
and 89/336/EEC [3].
Annex II, Table A, states the limits of unwanted emissions above 1000
MHz and outside the bands 1 626,5 MHz to 1645,5 MHz and 1656,6
MHz to 1660,5 MHz applicable before 1 June 2002. Annex II, Table B,
states such limits applicable from 1 June 2002.
Article 3
Notified bodies designated for carrying out the procedures referred to in
the harmonised standard referred to in the Annex after the notification of this
Decision.
Article 4
ike National type-approval regulations covering equipment within the scope
of the harmonised standard referred to in the Annex are cease to be
applicable with effect from three months after the date of adoption of this
Decision.
2. Satellite earth station equipment, approved under such national type-
approval regulations may continue to be placed on the national market
and put into service.
Article 5

For the Commission
Martin BANGEMANN
(1) OJL 74, 12. 3. 1998, p. 1.

(2) OJL77, 26. 3. 1973, p. 29.
(3) OJ L 139, 23. 5. 1989, p. 19.
98/578/EC 439
ANNEX I

The harmonised standard referred to in Article 2 of the Decision is
Satellite earth stations and systems (SES);
Low data rate land mobile satellite earth stations (LMES) operating in the 1.5/
1.6 GHz frequency bands
ETSI
ETSI Secretariat
TBR26: May 1998
mandate issued in accordance with relevant procedures of Council Directive
83/189/EEC.
The full text of the harmonised standard referred to above can be obtained
from:
650 route des Lucioles
European Commission,
DG XIII/A/2 — (BU 31, 1/7)
Rue de la Loi/Wetstraat 200,
B-1049 Brussels
www.ispo.cec.be.
(1) OJ L109, 26. 4. 1983, p. 8.

1.2, EUROPEAN CONFERENCE OF POSTAL
AND TELECOMMUNICATIONS
ADMINISTRATION (CEPT)
1.2.1. European Radiocommunication Committee

(ERC)
EUROPEAN RADIOCOMMUNICATIONS COMMITTEE
ERC DECISION
OF IST DECEMBER 1995
ON THE FREE CIRCULATION OF RADIO EQUIPMENT IN CEPT MEMBER
COUNTRIES
(CEPT/ERC/DEC/(95)o1)
EXPLANATORY MEMORANDUM
1. INTRODUCTION
The free circulation of radiocommunications goods and services is a prerequi-
site to realise a dynamic and competitive European radiocommunications
market. The ERC has decided that one of its policy goals is to provide for the
free circulation of radio equipment within CEPT member countries. There is
also a general desire in the CEPT member countries to reduce bureaucracy and
the control exercised by authorities in the form of mandatory provisions to a
minimum level.
Three different levels of free circulation can be identified:
1. free circulation without permission of using the radio equipment,
2. free circulation with permission of using the radio equipment,
3. free circulation with the permission of placing the radio equipment on the
market.
The level of free circulation that can be permitted is normally related to the
level of harmonisation of the radio equipment: the harmonisation of the
frequency arrangements, the standardisation of the radio equipment and
harmonisation of type approval conditions and licensing conditions.
440
This Decision deals only with the two first levels of free circulation (free
circulation with and without the permission of using the radio equipment).
The permission of placing the radio equipment on the market will be dealt with
in a future ERC Decision.
2. BACKGROUND
During the past years the CEPT has developed several arrangements to
facilitate the free circulation of radio equipment. For example, the Recommen-
dations T/R 20-09 (PR-27 equipment), T/R 21-09 (Euteltracs service) and T/R
61-01 (CEPT radio amateur licence) contain provisions for free circulation of
the equipment. A common feature for these Recommendations is that each one
of them relates to a specific category of radio equipment.
Also two generic recommendations dealing with free circulation have been
developed in the past years, namely T/R 21-06 (Conditions under which land
mobile radio equipments may be carried but without being operated during
short journeys and stays within CEPT member countries) and T/R 21-07
(Border crossing and use of mobile transmitter-receivers in CEPT member
countries).
3. NEED FOR AN ERC DECISION

The above mentioned free circulation arrangements are based on ERC
Recommendations. The Recommendations have a lower status than Decisions
and Administrations often tend to accommodate the arrangements of the
Recommendations to their own national circumstances. In addition to that,
some of the Recommendations contain a set of options and this has caused
different Administrations to adopt inconsistent practices.
The experience of users has shown that the existing free circulation arrange-
ments do not work efficiently enough and that Administrations still set barriers
against the free circulation of radio equipment.
The creation of a dynamic and competitive European radiocommunications
market requires that the radio equipment can be transferred from one country
to another with as few formalities as possible. Restrictions on free circulation
and use can be accepted only when they are justifiable because of reasons of
efficiency of frequency usage.
It should be noted that in some countries the implementation of this Decision
requires legislative changes that eventually need to be adopted by the parlia-
ment. These countries may need additional time before being able to commit
themselves to this Decision.
CEPT/ERC/DEC/(95)01 442
ERC DECISION
OF IST DECEMBER 1995
COUNTRIES
(CEPT/ERC/DEC/(95)01)
The European Conference of Postal and Telecommunications Administra-
tions,
considering:
a) that one of the policy goals of the European Radiocommunications

Committee is to provide for the free circulation of radio equipment
within the CEPT member countries,
b) that there is an increasing mobility of residents of CEPT member
countries and an increasing need to provide for the free circulation of
radio equipment while those persons are temporarily visiting other CEPT
member countries,
that radio equipment is being subject to ERC Decisions setting fully
harmonised frequencies and technical standards,
d) that the telecommunications policy within the European Union calls for
free circulation and mutual recognition of licences,
e) that the free circulation with permission of using the radio equipment
provides for the mutual recognition of radio licences as Administrations
accept in their territories the use of radio equipment that have been
authorised by other Administrations,
f) that the free circulation of radio amateur equipment is covered by a
separate procedure,
g) that this Decision does not cover aeronautical or maritime equipment or
the use of any other radio equipment on board a ship or aircraft,
recognising:
a) that in order to prevent the use of equipment for illegal purposes, many
countries have in their legislation restrictions against the possession of
such equipment,
b) that the equipment referred to in recognising a) are excluded from the
scope of this Decision,
DECIDES
ip that this Decision applies only to the carriage and use of radio equipment
by visitors in CEPT member countries and that the permission of placing
radio equipment on the market is not covered by this Decision,
that whenever use of the radio equipment is permitted in visitors’ home
country Administrations shall permit free circulation and use of radio
equipment fulfilling all of the following criteria:
2.1. the radio equipment operates on harmonised frequencies with
common technical standards,
2.2. no frequency planning or individual frequency assignment is

needed,
that the radio equipment fulfilling the criteria mentioned above are listed
in annex 1,
that the holding and use of the radio equipment mentioned in annex |
shall be allowed without requiring any kind of national licence or any
registration of the radio equipment in the country visited,
that free circulation without permission to use the radio equipment shall
be allowed for all other types of radio equipment permitted to be used on
land vehicles or as portable in the visitors’ home country,
that when free circulation without permission to use is allowed, in
justified cases Administrations may take measures to prevent the use of
the radio equipment,
that the free circulation and use of all kinds of stand-alone radio receivers
shall be allowed; however, the reception of other than broadcast
transmissions may be subject to national legislation,
that this Decision shall be implemented by | January 1997 at the latest,
that CEPT Member administrations shall communicate the national
measures implementing this Decision to the ERC Chairman and the
ERO when the Decision is nationally implemented.
ANNEX 1
Free circulation and use shall be allowed in CEPT member countries for the
following categories of type approved radio equipment:
GSM mobile phones

DECT mobile equipment
Omnitracs terminals for the Euteltracs system
Inmarsat-C terminals
Inmarsat-M terminals
aan
er
Al
ee
ye
Cr
PR-27 mobile stations
EUROPEAN RADIOCOMMUNICATIONS COMMITTEE DECISION

COUNTRIES
(CEPT ERC/DEC/(95)o1)
As of 18 April 1996 the following CEPT Members have committed themselves

to apply the terms of this Decision:
Austria
Belgium
Croatia
Finland
Iceland
Liechtenstein
Netherlands
Norway
Sweden
Switzerland
United Kingdom
After 18 April 1996 the undermentioned CEPT Members have committed
themselves to apply the terms of this Decision:
Czech Republic
Denmark
Estonia
France
Germany
Lithuania
Poland
Slovenia
Spain
Turkey
ERC DECcISION
OF 30 JUNE 1997
ON THE HARMONISED USE OF SPECTRUM FOR SATELLITE PERSONAL
COMMUNICATION SERVICES (S-PCS) OPERATING WITHIN THE BANDS I610—
1626.5 MHZ, 2483.5—2500 MHz, 1980-2010 MHz AND 2170-2200 MHz
1. INTRODUCTION
A number of new satellite systems within the mobile-satellite service (MSS),
offering services for individual users, will be introduced before the year 2001,
providing either global or regional coverage. These new satellite systems are
identified as providing Satellite Personal Communications Services (S-PCS).
Other terms such as Global Mobile Personal Communications by Satellite
(GMPCS) or Satellite-Personal Communication Networks (S-PCN) are also
being used in other fora to describe either a part or all of S-PCS.
The aim of this Decision is to provide a common approach for CEPT

administrations:
~ for the provisional designation and identification of spectrum within the
bands 1610—1626.5 MHz, 2483.5—-2500 MHz, 1980-2010 MHz and
2170-2200 MHz for the use by Mobile Earth Stations (MESs) of
individual S-PCS systems as shown in Annex | to this Decision;
- to use the milestone criteria and procedures described in Annexes 2 and 3
respectively, and the findings of the Milestone Review Committee
(MRC), to monitor the progress of each S-PCS system towards the
offering of service within the CEPT.
This ERC Decision is one of a ‘family’ of Decisions regarding the introduction

and use of MESs of S-PCS systems. Related CEPT Decisions concern:
- the free circulation and licensing for S-PCS MESs (ERC/DEC/(97)05);
~ mutual recognition of conformity assessment procedures including mark-
ing of radio equipment and radio terminal equipment (ERC/DEC/
(97)10)
~ the transition of existing services to facilitate the introduction of S-PCS
(ERC/DEC/(97)04);
~ the ECTRA Decision on harmonisation of authorisation conditions and
co-ordination of procedures in the field of Satellite Personal Commu-
nications Services (S-PCS) in Europe operating within the bands 1610
1626.5 MHz, 2483.5-2500 MHz, 1980-2010 MHz and 2170-2200 MHz
of 3 July 1997. (ECTRA/DEC(97)02).
445
This Decision and the companion Decisions shall be reviewed at least every
two years by the CEPT with a view to making adjustments, as necessary.
2. REQUIREMENT FOR AN ERC DECISION

The ERC recognises that a harmonised implementation of frequency assign-
ments for MESs of S-PCS will be of greatest benefit to S-PCS operators as well
as to the users of these MESs and will facilitate their introduction in Europe. A
commitment by CEPT members to implement the ERC Decision as described
in this document will provide a clear indication that frequencies for S-PCS will
be used in a harmonised way throughout Europe.
3. BACKGROUND
WARC-92 allocated the bands 1610—1626.5 MHz (Earth-to-space), 1980-2010
MHz (Earth-to-space), 2483.5—2500 MHz (space-to-Earth) and 2170-2200
MHz (space-to-Earth) to the mobile satellite service on a primary basis, and
the band 1613.8-1626.5 MHz (space-to-Earth) on a secondary basis.
The assignment of spectrum to MESs of S-PCS systems needs to be harmo-
nised in Europe if a level playing field for the introduction of S-PCS is to be
provided and if maximum spectrum efficiency is to be achieved. Annex | shows
the spectrum in the bands covered by this Decision, identified for use by
various MESs of S-PCS systems.
There is concern within the ITU on the existence of ‘paper’ satellites. With the
limited spectrum available to MSS it has been decided that spectrum should be
made available to those S-PCS systems that are likely to offer services within
the CEPT before the beginning of the year 2001. Annex 3 provides a procedure
with which the progress of a satellite system toward the offering of service over
the CEPT can be monitored and evaluated, in order to remove as far as
possible the possibility of the existence of paper satellites.
4. SCOPE OF THE ERC DECISION

This ERC Decision provides the provisional identification of spectrum to the
MESs of individual S-PCS systems and milestone criteria for the introduction
of S-PCS systems within CEPT administrations. The Decision covers S-PCS
MESs to be brought into operation in the bands 1610—1626.5 MHz, 1980-2010
MHz, 2170-2200 MHz and 2483.5-2500 MHz before 1 January 2001. It
should be noted that the systems identified in Table 2 of Annex 1 to the
Decision have fulfilled the initial criteria detailed therein. This table will be
amended, as appropriate on the basis of the replies received from the public
call for expression of interest on the provision of S-PCS. It should also be noted
that this list of systems can be modified, or augmented, at any time.
CEPT/ERC/DEC/ (97)03 447
5. EXPLANATORY REMARKS
5.1. The adoption of the Decision
Administrations that have committed to implement this Decision are expected
to make frequencies available for the use by the MESs of S-PCS systems as
identified in this Decision. Administrations that have committed to implement
this Decision must communicate the national measures taken to implement the
Decision to the ERC Chairman and the ERO when it is nationally implemen-
ted.
5.2. The milestone criteria and the Milestone Review Committee
The key milestones relating to the introduction of each S-PCS system are
detailed in Annex 2. The successful completion of these milestones would
enable an S-PCS system to begin continuous commercial service where it has
received national authorisations to do so. It should be noted that the free
circulation of MESs is dealt with by the companion ERC Decision. (ERC/
DEC/(97)05).
The Milestone Review Committee (MRC), the terms of reference and working
procedures of which are given in Annex 3 of this Decision, shall monitor each
system’s fulfilment of the milestone criteria and shall advise administrations
and inform ERC and ECTRA accordingly. The MRC will be established in
partnership with CEPT ECTRA.
ERC DECISION
OF 30 JUNE 1997
ERC DECISION ON THE HARMONISED USE OF SPECTRUM FOR
SATELLITE PERSONAL COMMUNICATIONS SERVICES (S-PCS) OPERATING
WITHIN THE BANDS I 610—1626.5 MHZ, 2483.5—2500 MHz, 1980-2010 MHz
AND 2170-2200 MHz (CEPT/ERC/DEC/(97)03)

tions,
considering:
(a) that WARC-92 allocated the bands 1610—1626.5 MHz (E—Sp), 2483.5-—
2500 MHz (SpE), 1980-2010 MHz (E—1Sp) and 2170-2200 MHz
(SpE) to the mobile-satellite service (MSS) on a primary basis, and
the band 1613.8—1626.5 MHz (SpE) on a secondary basis;
(b) that the use of the frequencies mentioned in Considering (a) above is
subject to co-ordination under Resolution 46 (WRC-95);
(c) that the transmissions from Mobile Earth Stations (MESs) in the band
1610—1626.5 MHz are subject to the e.i.r.p limits given in RR S5.364;
(d) that the use of the band 1610—-1626.5 MHz is also subject to the
provisions of RR S5.363;
(e) that RR S5.372 requires that harmful interference shall not be caused to
stations of the radio astronomy service using the band 1610.6—-1613.8

MHz by stations of the radio determination-satellite and mobile-satellite
services in the bands 1610—1626.5 MHz;
(f) that WRC-95 adopted further provisions relating to the bands mentioned
in Considering (a) above;
(g) that the use of the bands 1980-2010 MHz and 2170-2200 MHz by S-PCS
will be subject to successful frequency co-ordination with the fixed service
and, where necessary, the migration of the fixed-service stations from the
bands concerned (see RR S5.389A);
(h) that a number of S-PCS providing voice and data communication
(including facsimile) are to be brought into operation in the bands
mentioned in Considering (a) above;
(i) that each S-PCS system requires a specified minimum bandwidth to be
commercially viable;
Qj) that the use of the MES by a given S-PCS system requires specific
frequency assignments;
(k) that the free circulation and licensing of the MESs is subject to a separate
ERC Decision, i.e. ERC/DEC/(97)05;
(1) that a harmonised frequency assignment for MES in S-PCS systems in
Europe is needed to facilitate the efficient use of spectrum;
(m) that a milestone process will allow the monitoring and evaluation of the
progress of a satellite system toward the offering of service, in order to
remove as far as possible the possibility of the existence of paper
satellites;
(n) that S-PCS using CDMA and TDMA cannot share the same frequency
band;
(0) that CEPT believes that S-PCS, both global systems and regional
systems, to be brought into operation in the bands mentioned in
Considering (a) should be provided with a level playing field and that
the use of frequency assignments by MESs of S-PCS systems should be
subject to compliance with certain milestones on the deployment of the
relevant S-PCS system;
(p) that the migration of the fixed service systems from the bands 1980-2010
MHz and 2170-2200 MHz is the subject of a separate ERC Decision;
(ERC/DEC/(97)04).
(q) that the complementary CEPT ECTRA Decision on harmonisation of
authorisation conditions and coordination of procedures in the field of S-
PCS incorporates the milestone procedure introduced by this Decision;
(r) that some administrations have already established due diligence proce-
dures to reduce the possibility of paper satellites;
(s) the ERC Decision on the frequency bands for the introduction of the
Universal Mobile Telecommunication Service (UMTS), (ERC/DEC/
(97)07).
DECIDES
dy that the provisional designation of frequency bands for use by MESs of S-
PCS systems to be brought into operation before 1 January 2001 for the
provision of S-PCS within the CEPT shall be made within the bands
1610—1626.5 MHz, 2483.5—-2500 MHz, 1980-2010 MHz and 2170-2200
MHz as shown in Table 1 of Annex J and the provisional identification of
spectrum for the MES of candidate S-PCS systems should be as shown in
Table 2 of Annex 1, which is based on the information that was made
available by candidate system operators;
that the S-PCS systems to be operated within these bands shall meet the
milestone criteria given in Annex 2;
that a Milestone Review Committee (MRC) shall be established in
accordance with Annex 3, primarily to examine whether the milestone
criteria are met for the satellite systems applying for spectrum in the
bands covered by this Decision;
that the MRC shall be composed of officials of those CEPT administra-
tions that have committed themselves to implement this Decision or that
are signatories of the companion ECTRA Decision;
that an S-PCS system meeting all the milestone criteria in accordance
with Annex 2 before | January 2001 shall not have priority with regard to
the access to the available spectrum over another S-PCS system meeting
all milestone criteria later but also before 1 January 2001;
that for an S-PCS system which meets all milestones up to and including
milestone 6 in accordance with Annex 2, and which becomes operational
and ready to provide commercial service within the CEPT prior to 1
January 2001, its MESs may operate on a provisional basis, subject to
national authorisation in the relevant administration which may be
conditional on the outcome of frequency coordination with other services
in that country, within the minimum frequency band identified for that
system in the column headed ‘Minimum Band (in MHz)’ in Table 2 of
Annex | or subsequently by the MRC;
that in the event an S-PCS system does not meet the milestones, the
CEPT ERC shall revise as necessary the provisional designation of
frequency bands and the provisional identification of spectrum shown in
Tables 1 and 2 of Annex 1, respectively, as a part of the review process in
Decides 10;
that any modifications and inclusion of new S-PCS systems, as proposed
by CEPT administrations, which are intended to be brought into opera-
tion before 1 January 2001 and which are to be added to the list of
candidate systems referred to in Table 2 of Annex 1, shall be carried out by
the MRC;
that CEPT administrations in conducting frequency co-ordination shall
take into account Decides 1, 2, 5 and 6 above;
ho: that this Decision shall be reviewed at least every two years by the ERC with
the assistance of the ERO taking into account the findings of the MRC;
ig that this Decision shall enter into force on 1 October 1997;
1, that CEPT Member Administrations shall communicate the national

ANNEX I
Table 1.
Provisional designation offrequency bands to S-PCS employing CDMA and
TDMA technologies and operating within the bands
1610—-1626.5 MHz, 2483.5-2500 MHz, 1980-2010 MHz and 2170-2200 MHz
1) 1610 - 1626.5 MHz'
1610 1620355 1626.5
S-PCS using CDMA technologies S-PCS using TDMA

technologies
2) 2483.5 - 2500 MHz'
2483.5 2498* 2500
S-PCS using CDMA technologies S-PCS using

TDMA
technologies
‘ The boundaries will be subject to review depending on the outcome of frequency’

assignments to the systems identified in the Decision.
3) 1980 - 2010 MHz!
1980 1995 | 2010
to be decided” S-PCS using TDMA

technologies’
4) 2170 - 2200 MHz'
2170 2185 2200
to be decided? S-PCS using TDMA

technologies”
Note 1: The further requirements for any S-PCS, in addition to the amounts
identified in the table, shall be considered on a case- by- case basis by the CEPT
ERC when such requirements are identified to meet the system design or to
cater for the growth in traffic. The current segmentation between CDMA and
TDMA S-PCS systems assumes a larger number of CDMA S-PCS systems
compared to the number of TDMA S-PCS systems. The boundaries will be
subject to review.
Note 2: Systems meeting the milestone criteria may operate within the bands
1980-2010 MHz and 2170-2200 MHz, subject to compliance with the mile-
stone criteria and successful frequency co-ordination with other services. The
migration of other services from the bands 1995-2010 MHz and 2185-2200
MHz shall be achieved in accordance with ERC Decision, ERC/DEC/(97)04.
When the other services have achieved migration from these bands, S-PCS
systems shall operate according to the bands identified in the table.
Table 2.
List of candidate systems
The following list of systems is based on the information given by the network
operators and submitted by CEPT Administrations. These systems have
fulfilled the initial criteria’ for this frequency band and will be taken into
account by the Milestone Review Committee (MRC).
Access Tuning range Minimum Minimum

System method (in MHz)’ band requirement’
| se (in MHz) (in MHz)
1) Courier CDMA 1610-1621.35 | 1611.45-1621.35 9.9
Per ees 2483.5-2494.85 | 2484.95-2494.85 99
27 EAST! TDMA 1610-1626.5° | 1619.35-1622.35
) | Globalstar 1610-1626.5 1610-1621.35 11.35

2483.5-2500 2483.5-2500 16.5
Horizon® TDMA 1980-2010 1995-2000 5

(Inmarsat) 2170-2200 2185-2190 5
ICO-1 TDMA 1985-2015 1997.5-2010 12:5

2170-2200 2187.5-2200 12.5
wm
~~
——
wa
Odyssey CDMA 1610-1626.5 1610-1621.35 11.35
2483.5-2500 2483.5-2500 16.5
) |QuasigeoL2} TDMA 1610-1626.5 1624.5-1626.5 DZ

2483.5-2500 2498-2500 2
) |QuasigeoL3] TDMA 1980-2010 2005-2010 5

2170-2200 2195-2200 5
ee.
10) |ELEKON- | CDMA 1613.8-1626.5 2.3

STIR 2490-2494 23
11) |SIGNAL (a)}_ CDMA 1610-1626.5 1610-1626.5 4x3.56

2483.5-2500 2483.5-2500 4x3.56
12) [SIGNAL (b)] CDMA 1980-2010 1980-2010 4x7.04

2170-2200 2170-2200 4x7.04
13) |PETALRIN | TDMA 1980-2010 2005 - 2010 5

G 30C-S 2170-2200 2195 - 2200 5
CEPT/ERC/DEC/ (97,03 453
The initial criteria are:

— Submission of Information for Advance Publication to the ITU;
~ System is planned to go into operation before 1 January 2001.
The frequency bands under consideration are used by the following
operational systems of the Russian Federation:
— the Global Satellite Navigation System (GLONASS-M (1596-1621
MHz down link));
— the earth exploration satellite system PROGNOZ (2120-2300 MHz
down link).
The frequency bands under consideration are planned to be used by the
following systems of the Russian Federation:
— the future satellite system PROMETEY (2490-2500 MHz down
link) published on 18.07.95 ASEC No. 1296 (planned date of
putting into operation: year 2000).
The column states the minimum requirement as submitted by at least one
CEPT administration.
The UK administration is still considering the coordination of the EAST
system in the 1.5/1.6 GHz bands or the use of the 2 GHz bands by EAST.
= The total EAST tuning ranges are: 1525-1559 MHz, 1610—-1660.5 MHz,
1980-2010 MHz, and 2170-2200 MHz.
The 2 x 5 MHz identified represents the initial spectrum required for the
Inmarsat 4th generation Horizon system. The spectrum requirement for
Inmarsat Horizon will be met in frequency bands below 2000 MHz and
2190 MHz.
Although 5.15 MHz represents the minimum start-up technical require-
ment for the IRIDIUM system, IRIDIUM may need a minimum of 8.25
MHz starting from the top (1626.5 MHz) of the band, in order to meet its
commercial objectives by 2001.
ANNEX II
Milestones for the introduction of S-PCS within the bands 1610—-1626.5 MHz,
2483.5—2500 MHz, 1980-2010 MHz and 2170-2200 MHz
INTRODUCTION
The milestones to be applied by the Milestone Review Committee (MRC) are
listed below.
A satellite network operator may be represented by different service providers
in different countries.
MILESTONES
if, Submission of ITU Advance Publication and Co-ordination Documents
The satellite network operator should provide clear evidence that the
administration responsible for an S-PCS system has submitted ITU RR
Appendix 4 ‘Advance Publication Information to Be Furnished for a
Satellite Network’ and ITU RR Appendix 3 ‘Notices Relating to Space
Radiocommunications and Radio Astronomy Stations’.
Satellite manufacturing
The satellite network operator should provide clear evidence of a binding
agreement for the manufacture of its satellites. The document should
identify the construction milestones leading to the completion of manu-
facture of satellites required for the commercial service provision. The
document should be signed by the satellite network operator and the
satellite manufacturing company and should be available for inspection
by the MRC, If they are the same, a commitment should also be provided
by the satellite network operator.
Completion of the Critical Design Review
The Critical Design Review is the stage in the spacecraft implementation
process at which the design and development phase ends and the
manufacturing phase starts.
The satellite network operator should provide clear evidence of the
completion of the Critical Design Review in accordance with the
construction milestones indicated in the satellite manufacturing. The
declaration, signed by the satellite manufacturing company and indicat-
ing the date of the completion of the Critical Design Review, should be
available for inspection by the MRC.
Satellite launch agreement
agreement to launch the minimum number of satellites required to
provide a continuous service within the CEPT. The document should
identify the launch dates and launch services and the indemnity contract.
The document should be signed by the satellite network operator and the
satellite launching companies and should be available for inspection by
the MRC.
Gateway Earth Stations
agreement for the construction and installation of Gateway Earth
Stations that will be used to provide S-PCS within the CEPT. This
document should be available for inspection by the MRC.
Launch of satellites
(a) The satellite network operator should make available for inspection
by the MRC documents confirming the first successful satellite
launch and in-orbit deployment.
(b) The satellite network operator of an NGSO system should also
provide periodic evidence of subsequent launches and successful in-
orbit deployment of satellites in the constellation.
Provision of documentation relating to (a) shall constitute compliance
with this milestone.
Frequency co-ordination
The satellite network operator should submit to the MRC documents
relating to the successful frequency co-ordination of the system pursuant
to the relevant provisions of the Radio Regulations. However, a system
which demonstrates compliance with milestones 1 to 6 inclusive is not
obliged to demonstrate at this stage completion of successful frequency
co-ordination with those S-PCS systems which fail to comply adequately
and reasonably with milestones | to 6 inclusive.
Provision of satellite service within CEPT
Before 1 January 2001 the satellite network operator shall notify the
MRC that it has launched, and has available for the provision of service,
the number of satellites it previously identified under milestone 4 as
necessary to provide continuous commercial service, and that it shall be
providing commercial service within the CEPT using the frequency bands
identified in the Table 2 of Annex 1.
ANNEX III
Milestone Review Committee
i Terms of reference
The Milestone Review Committee (MRC) shall

et monitor the compliance with the milestones by applicants, in a transpar-
ent and non-discriminatory manner, and in accordance with the proce-
dures established in Section 2;
[e2. seek information as necessary from the applicants, on the compliance
with the milestones;
133) make recommendations to administrations, ERC and ECTRA, upon
examination of applications, on the compliance with milestones by S-
PCS systems, and appropriate methods of handling of any difficulties
arising, in order to assist administrations in offering authorisations;
1.4. make any modification and inclusion of new S-PCS systems, proposed by
CEPT administrations, that are intended to be brought into operation
before 1 January 2001 and that meet the initial criteria given in Note | to
Table 2 of Annex 1, to the list of candidate systems in Table 2 of Annex 1;
ey establish a co-ordinated procedure within the CEPT, involving a number
of administrations, for the monitoring of the spectrum utilised by S-PCS
systems for the systems that have been implemented up to | January
2001, and make recommendations to administrations, ERC and ECTRA
as necessary;
1.6. report on a regular basis to administrations, ERC and ECTRA on

whether scarcity of frequency spectrum is likely to represent, at some
point in time, a constraint on the number of S-PCS systems which can be
provided within CEPT in the relevant bands, and propose the necessary
measures to overcome any difficulties;
Lol: identify, as far as possible, any additional requirements of administra-
tions which should be met by applicants and on which further informa-
tion should be provided in the applications; this would allow it to prepare
a standard format for the application form to be completed by applicants.
Working procedures
Monitoring the compliance with the milestones
Annex 2 identifies the milestones relating to the introduction of S-PCS
systems. The successful compliance with these milestones by the network
operators concerned would allow CEPT administrations to decide on the
assignment of frequencies to Mobile Earth Stations of the S-PCS systems.
It would also allow administrations to make certain decisions on the
authorisations. The monitoring of compliance shall be carried out in
accordance with the following procedure:
2.1.1. Ifa milestone or several milestones are achieved at the date stated
by the applicant (‘milestone date’), the MRC shall inform, in a
timely manner, the ERC, ECTRA and the relevant administra-
tions.
2.1.2. Ifa milestone is not achieved at the milestone date, the MRC shall
communicate with the applicant seeking an explanation for the
non-compliance within four weeks. The MRC shall send copies of
the correspondence to the Chairmen of the ERC and ECTRA and
the relevant administrations.
2.1.3. When the MRC has received a response from the applicant, it will
seek information from the applicant about a new date for this
milestone and confirmation or adjustments of the dates for the
following milestones. The response and dates, possibly revised,
will be brought to the attention of relevant administrations.
2.1.4. In the event that:
either the four-week period expires without appropriate response
from the relevant party, or the MRC concludes that the explana-
tion provided is not sufficient reason for failing to achieve the
milestone date,
then the MRC shall advise the administrations of the treatment of
the application noting that MRC advice should lead to the
establishment of a co-ordinated position with the CEPT.
Ds De Monitoring of spectrum usage
The MRC shall establish a co-ordinated procedure within the CEPT,
involving a number of administrations, for the monitoring of the
spectrum utilised by all the satellites of S-PCS systems for the systems
that have been implemented up to | January 2001. The MRC shall
compare the spectrum utilised by the systems against the ‘minimum
band’ and ‘minimum requirements’ identified in the Table 2 of Annex 1
and make recommendations to administrations on adjustments necessary
to this Table. These adjustments may be to expand or to reduce the
minimum requirements given in this Table. However, in making these
recommendations, the MRC shall take due account of frequency compat-
ibility within the S-PCS systems and with other radio services.
Deo. Monitoring of availability of frequencies
Taking into account the information made available to the MRC by the
applicants and the results of the examination on compliance with mile-
stones and monitoring of spectrum usage, as well as any frequency co-
ordination efforts between operators, the MRC will assess whether and
when scarcity of frequency spectrum is likely to become a problem.
Confidentiality
It is anticipated that the applicants seeking authorisation would offer
confidential information relating to implementation of a S-PCS system
and relating to its commercial operations either directly or indirectly to
the MRC. The confidentiality of information provided by an applicant
will be treated as such by the MRC. Pursuant to this, administrations will
take all practical steps to limit the circulation of confidential material to
those who need to see it.
EUROPEAN RADIOCOMMUNICATIONS COMMITTEE DECISION ON THE

HARMONISED USE OF SPECTRUM FOR SATELLITE PERSONAL COMMUNICATION
SERVICES (S-PCS) OPERATING WITHIN THE BANDS 1610—1626.5 MHz,
2483.5-2500 MHz, 1980-2010 MHZ AND 2170-2200 MHz
AS of 1 October 1997 the following CEPT Members have committed

Finland
Germany
Italy
Liechtenstein
Lithuania
Netherlands
Norway
Portugal
Spain
Switzerland
United Kingdom
After 1 October 1997 the undermentioned CEPT Members have committed

Austria
Belgium
Croatia
Cyprus
Denmark
Estonia
France
Hungary
Iceland
Ireland
Latvia
Slovenia
Sweden
Turkey
ERC DECISION
OF 30 JUNE 1997
ON TRANSITIONAL ARRANGEMENTS FOR THE FIXED SERVICE AND THE MOBILE-
SATELLITE SERVICE IN THE BANDS 1980-2010 MHz AND 2170-2200 MHz IN
ORDER TO FACILITATE THE HARMONISED INTRODUCTION AND DEVELOPMENT OF
SATELLITE PERSONAL COMMUNICATIONS SERVICES
1. INTRODUCTION
Within Europe, there is an increasing interest in public mobile communica-
tions. The use of public mobile communications has dramatically increased
and the market prospects are excellent for the years to come. However, there
are areas in Europe as well as elsewhere around the globe that will never be
covered by terrestrial systems such as GSM. The Mobile-Satellite Service
(MSS) is capable of providing that service: ‘a phone to be used everywhere’.
Hence there is a need for supplementary services like Satellite Personal
Communications Services (S-PCS), which are to be accommodated in the
frequency bands allocated to MSS. However, the frequency bands where these
services are to be introduced are currently used by terrestrial fixed services,
which are incompatible with S-PCS.
2. BACKGROUND
From a users point of view S-PCS is rather similar to GSM (however with
limited indoor use) providing voice and data communication (including
facsimile). The obvious difference is that the ‘base station is moving in space’
and interference is likely to occur when the satellite is in line of sight of a Fixed
Service (FS) antenna. Therefore frequency sharing between the MSS and the
FS is difficult, especially in the uplink band 1980-2010 MHz. Nevertheless, in
the Table of Frequency Allocations contained in Article S5 of the Radio
Regulations of the International Telecommunication Union the MSS and FS
are allocated on a co-primary basis.
By its nature the operation of S-PCS should not be limited on a national basis
and it also requires common frequency blocks to be made available in adjacent
geographical areas. Therefore, in order to facilitate the harmonised introduc-
tion and development of S-PCS, transitional arrangements are required for the
transfer of fixed services from the affected frequency bands.
459

The allocation of radio frequencies in CEPT member countries is laid down by
law, regulation or administrative action. For the successful introduction of S-
PCS throughout the world, manufacturers and operators must be given the
confidence to make the necessary investment in this new radiocommunications
service. A commitment by CEPT member countries to implement an ERC
Decision will provide a clear indication that the required frequency bands will
be made available on time at least on a European-wide basis.
In order for Europe to keep up with the pace of terrestrial mobile and now to
take a position in the generic mobile market, it is necessary to provide an
adequate environment for development of mobile satellite systems driven by
market forces. With an ERC Decision on transitional arrangements for the
Fixed Service and the Mobile-Satellite Service in the 2 GHz bands to facilitate
the harmonised introduction and developmentof S-PCS a clear sign on the
development of public mobile communications in Europe has been given and
another step forward in European mobility has been taken.
ERC DECISION
OF 30 JUNE 1997
SATELLITE SERVICE IN THE BANDS 1980-2010 MHZ AND 2170-2200 MHz IN

tions,
considering:
a) that the WRC-95 adopted a date of entry into force of 1 January 2000 in
Regions | and 3 for the Mobile-Satellite Service (MSS) allocations in the
frequency bands 1980-2010 MHz (Earth-to-space) and 2170-2200 MHz
(space-to-Earth);
b) that the use of the above bands by the MSS is subject to coordination
under Resolution 46 (WRC-95) and to the provisions of Resolution
COMS-10 (WRC-95);
c) that ERC Report 25 suggests that the introduction of MSS in the 2 GHz
region from the year 2000 could be accommodated in the bands 1996-
2010 MHz and 2186-2200 MHz, primarily because this part of the
spectrum corresponds to the common go/return gap in the ITU-R
Recommendation F.283-5 on radio-frequency channel arrangements for
the Fixed Service (FS) which is in use in many European countries;
d) that the above frequency bands are also intended for use by the satellite
component of International Mobile Telecommunications (IMT-2000)
(normally referred to in Europe as Universal Mobile Telecommunications

System (UMTS);
e) that in general sharing between the MSS and the FS in these bands,
especially in the medium to longer term will become progressively more
difficult and, in particular, co-channel sharing between the MSS and the
FS in those frequency bands used by the MSS in the Earth-to-space
direction is extremely difficult due to the potentially high aggregate
interference levels from multiple FS emissions which could be received
at MSS satellites;
that following WARC-92 many European Administrations established a
moratorium on new FS networks in the 2 GHz bands allocated to the
MSS. The moratorium was associated with plans to vacate these bands of
existing FS networks by around the year 2005;
g) that CEPT/ERC Recommendation T/R 13-01 and ITU-R Recommenda-
tion F.1098 specify new channel arrangements for the Fixed Service
which should be used for new 2 GHz FS networks in order to avoid
overlap with the 2 GHz MSS allocations;
h) that the viable operation of S-PCS systems requires common frequency
blocks to be made available in adjacent geographical areas and that
common harmonised frequency solutions are required in Europe;
i) that in order to provide S-PCS space segment operators with the
opportunity to coordinate their spectrum usage in a compatible manner
with multiple European countries, harmonised frequency bands, to the
extent practicable, should be made available;
j) that to assist Administrations in re-planning their 2 GHz FS networks
with a view to accommodating planned S-PCS systems, a harmonised
approach is required to prioritise the transition of existing FS networks
from the affected frequency bands;
k) that there are areas in Europe which will remain uncovered by terrestrial
public mobile communications and which will hence need a supplemen-
tary service like S-PCS;
I) that a set of ERC Decisions has been adopted in order to facilitate the
harmonised introduction of S-PCS in Europe:
- ERC/DEC/(97)03 on harmonised use of spectrum for S-PCS
operating within the bands 1.6/2.5 GHz and 1.9/2.1 GHz;
- ERC/DEC/(97)05 on free circulation, use and licensing of MES of
S-PCS;
m) that ECTRA has adopted a Decision ECTRA/DEC(97)02 on harmoni-
sation of authorisation conditions and co-ordination of procedures in the
field of S-PCS in Europe;
n) that the milestone criteria as identified in ECTRA Decision ECTRA/
DEC(97)02 and ERC Decision ERC/DEC/(97)03 will provide the
assurance that the spectrum to be vacated by the existing services will be
taken up in a timely way by the S-PCS systems;
0) that European Parliament and Council Decision 710/97 IEEC on a co-

ordinated authorisation approach in the field of S-PCS in the European
Union (EU) has been adopted.
DECIDES
de to designate the frequency bands 1980-2010 MHz and 2170-2200 MHz
for use by mobile satellite systems providing the S-PCS and/or the
satellite component of the UMTS/IMT-2000;
that Administrations should facilitate coordination under Resolution 46
(Rev. WRC-95) and Resolution 716 for the timely introduction and
development of planned MSS satellite systems in the frequency bands
listed in Decides 1, whilst protecting existing FS networks to the extent
necessary;
to identify the frequency bands 1995—2010/2185—2200 MHz as the initial
preferred harmonised bands within which Administrations are strongly
urged to facilitate the coordination of planned MSS satellite systems
intending to provide S-PCS from 1 January 2000 onwards, with appro-
priate national transitional arrangements for the FS;
that new 2 GHz FS networks shall only be implemented in bands not
overlapping with the MSS allocations in the bands 1980—2010/2170-
2200 MHz;
that Administrations should undertake the progressive transfer of exist-
ing FS networks operating in the bands 1980-2010 MHz and 2170-2200
MHz to other bands which do not overlap with the MSS allocations;
that Administrations shall prioritise the above referred transitions of
channels of existing Fixed Service systems operating in the 1980-2010
MHz band in order to vacate at least 15 MHz within the 1990-2010 MHz
range by | January 2000 and at least 25 MHz within the 1980-2010 MHz
range by | January 2005 should the Milestone Review Committee
determine that an S-PCS system has fulfilled milestones 1 to 6 inclusive
of the Annex 2 of ERC Decision ERC/DEC/(97)03;
that Administrations shall transfer by | January 2000 troposcatter FS
systems with occupied bandwidths which overlap with the band 1980-
2010 MHz to other bands which do not overlap with the above 2 GHz
MSS allocations;
that this Decision should be reviewed taking into account the develop-
ment of 2 GHz MSS satellite systems, the development of UMTS/IMT-
2000 service deployment plans and progress in national 2 GHz Fixed
Service transitional arrangements;
that this Decision shall enter into force on 1 October 1997;
that CEPT Member Administrations shall communicate the national

SATELLITE SERVICE IN THE BANDS 1980-2010 MHz AND 2170-2200 MHz IN
As of 1 October 1997 the following CEPT Members have committed

Austria
Finland
Germany
Lithuania
Netherlands
Norway
Portugal
Spain
United Kingdom
Croatia
Denmark
Estonia
France
Hungary
Iceland
Ireland
Latvia
Slovenia
Sweden
Turkey
ERC DECISION
OF 30 JUNE 1997
ON FREE CIRCULATION, USE AND LICENSING OF MOBILE EARTH STATIONS OF
WITHIN THE BANDS 1610-1626.5 MHz, 2483.5-2500 MHz, 1980-2010 MHz
AND 2170-2200 MHZ WITHIN THE CEPT
1. INTRODUCTION
A number of new satellite systems offering services for individual users will be
introduced before the year 2001. These new satellite systems are identified as
providing Satellite Personal Communications Services (S-PCS), and they will
provide global or regional coverage. Other terms such as Global Mobile
Personal Communications by Satellite (GMPCS) or Satellite-Personal Com-
munication Networks (S-PCN) have also been used in different fora to describe
S-PCS.
In dealing with S-PCS systems administrations may have to address several
types of licensing requirements; e.g. for network operators, service providers,
gateways, and MESs. This ERC Decision covers free circulation and use, and
exemption from the requirement of individual licensing of MESs. The Decision
makes necessary references to conformity assessment to the relevant Technical
Basis for Regulation (TBR) and appropriate marking regimes. The free
circulation and use referred to in this Decision shall mean the right of the user
to carry and use S-PCS Mobile Earth Station(s) within the territory of all
administrations participating in this Decision, without requiring individual
authorisations or licences.
2. BACKGROUND
WARC-92 allocated the bands 1610—-1626.5 MHz (Earth-to-space), 2483.5—
2500 MHz (space-to-Earth), 1980-2010 MHz (Earth-to-space) and 2170-2200
MHz (space-to-Earth) to the mobile satellite service on a primary basis, and
the band 1613.8—1626.5 (space-to-Earth) on a secondary basis. The designation
of the frequencies to individual S-PCS systems in Europe is given in the ERC
Decision on the Harmonised Use of Spectrum for Satellite Personal Commu-
nication Services (S-PCS) operating within the bands 1610-1626.5 MHz,
2483.5—2500 MHz, 1980-2010 MHz and 2170-2200 MHz (ERC/DEC/
(97)03).
464
The European administrations have been following the principle of issuing

individual licences for single radio equipment. However, during the last decade
administrations have started to exempt a number of these equipments from
requiring an individual licence. The CEPT/ERC Recommendation ERC/REC
01-07 on a harmonised regimes for exemption from individual licensing of
radio equipment defines the criteria under which radio equipment should be
exempt from individual licensing.
3. GENERAL APPROACH FOR FREE CIRCULATION AND USE

AND LICENSING
Given that S-PCS systems are intended to offer regional or global services,
placing a requirement for individual licences for MESs would be detrimental to
the concept of free circulation and use. Therefore, this Decision requires that S-
PCS MESs shall be exempted from individual licensing. The implementation of
the concept of free circulation and use requires administrations to accept the
use of the S-PCS MESs originating from other CEPT countries without
requiring any further authorisations or licences.
The free circulation and use of MESs and their exemption from individual
licensing is predicated upon:
- the use of harmonised frequency bands by MESs without having the
potential to cause harmful interference to other services;
_ type approval of MESs to an agreed standard and also an agreed marking
regime.
It is expected that conformity assessment of S-PCS mobile earth stations will
be carried out to harmonised standards. There may, however, be an interim
period when harmonised standards are not available. During this period the
conformity assessment may be carried out to other specifications which
demonstrate compliance with the essential requirements.

The S-PCS systems will provide a global service, which greatly facilitates the
mobile communications throughout the world. Therefore there is a need to
arrang free circulation and use of S-PCS MESs without requiring individual
licences or other radio regulatory formalities. This Decision has been prepared
to facilitate these goals.
ERC DECISION
OF 30 JUNE 1997
FREE CIRCULATION, USE AND LICENSING OF MOBILE EARTH STATIONS OF
WITHIN THE BANDS 1610-1626.5 MHz, 2483.5-2500 MHz, 1980-2010 MHz
AND 2170-2200 MHz wITHIN THE CEPT

tions,
considering:
a) that WARC-92 allocated the bands 1610—1626.5 MHz (E—Sp), 2483.5—
2500 MHz (SpE), 1980-2010 MHz (E-Sp) and 2170-2200 MHz
(Sp—E) to the mobile satellite service on a primary basis, andthe band
1613.8-1626.5 MHz (SpE) on a secondary basis;
b) that a number of S-PCS systems providing both global and regional
coverage are to be brought into operation in the bands mentioned in
considering (a) above;
c) that the spectrum for S-PCS systems will be harmonised via the ERC
Decision on the Harmonised Use of Spectrum for Satellite Personal
Communication Services (S-PCS) operating within the bands 1610-—
1626.5 MHz, 2483.5—2500 MHz, 1980-2010 MHz and 2170-2200 MHz
(ERC/DEC/(97)03);
n) that S-PCS systems will be assessed in accordance with the milestone
criteria given in ERC Decision CEPT/ERC/DEC(97)03 in order to
remove as far as possible the possibility of the existence of paper
satellites;
d) that the bringing into operation of S-PCS systems in the bands mentioned
in considering (a) above is subject to satisfactory progress of frequency
co-ordination in accordance with the procedures established by the ITU
Radio Regulations;
e) that the use of S-PCS MESs could cause interference to other services;
f) that it is desirable for administrations to implement a harmonised
licensing regime for S-PCS MESs within the CEPT;
g) that the exemption of MESs from requiring an individual licence
provides for the concept of free circulation and use which means the
right to carry and use an S-PCS MESs without any further authorisation;
h) that the harmonisation of authorisation conditions and co-ordination of
procedures relating to S-PCS are given in the ECTRA Decision on
harmonisation of authorisation conditions and co-ordination of proce-
dures in the field of Satellite Personal Communications Services (S-PCS)
in Europe; (CEPT/ECTRA/DEC(97)02).
i) that within the EEA the conformity assessment of S-PCS MESs will be
carried out to the relevant harmonised standards, or, pending the
adoption thereof, to other specifications, which demonstrate compliance

with essential requirements.
DECIDES
1. that this Decision shall not impede EEA member countries from fulfilling
their obligations according to community law;
2. that administrations shall not require individual licences for the use of
MESs of S-PCS systems, provided that:
- the satellite system ensures that the MESs operate within the
frequency bands identified in the ERC Decision ERC/DEC/(97)03;
~ the provision of S-PCS, within which the MES operates, has been
authorised in accordance with national regulations and the ECTRA
Decision ECTRA/DEC(97)02;
— harmful interference to the radio astronomy service in the band
1610.6—1613.8 MHz is not caused by the MES;
~ the MES fulfils the requirements of the country where it is used and
is marked accordingly;
3. that administrations which have implemented this Decision shall allow
the free circulation and use of all MESs (either single mode or multi-
mode) originating from CEPT provided that the MESs fulfils the
requirements in decides 2;
4. that free circulation without permission to use for all MESs (either single
mode or multi-mode) originating from CEPT and not fulfilling the
requirements in decides 2, will be allowed by each administration when
the MES is prohibited from operating by the S-PCS network operator
whilst it is located within the territory of the administration;
5. that this Decision shall be reconsidered each time the ERC Decision on
the Harmonised Use of Spectrum for Satellite Personal Communication
Services (S-PCS) operating within the bands 1610—1626.5 MHz, 2483.5—
2500 MHz, 1980-2010 MHz and 2170-2200 MHz (ERC/DEC/(97)03) is
revised;
a that this Decision shall enter into force on 1 October 1997.
7. that CEPT Member Administrations shall communicate the national
ON FREE CIRCULATION, USE AND LICENSING OF MOBILE EARTH STATIONS OF
SATELLITE PERSONAL COMMUNICATIONS SERVICES (S-PCS) OPERATING WITHIN
THE BANDS 1610—1626.5 MHZ, 2483.5—2500 MHz, 1980-2010 MHZ AND
2170-2200 MHZ wITHIN THE CEPT

Austria
Finland
Germany
Liechtenstein
Lithuania
Netherlands
Norway
Spain
Switzerland
United Kingdom

Belgium
Croatia
Czech Republic
Denmark
France
Iceland
Ireland
San Marino
Slovenia
Sweden
Turkey
ERC DECISION
OF 30 JUNE 1997
ON THE FREQUENCY BANDS FOR THE INTRODUCTION OF THE UNIVERSAL
MOBILE TELECOMMUNICATIONS SYSTEM (UMTS)
1. INTRODUCTION
Further to current second generation mobile services there is a need to develop
a new generation wireless, wideband system with enhanced characteristics such
as video, multimedia, flexible service provision, universal coverage, support of
data rates up to 144 kbit/s for wide area coverage and up to 2 Mbit/s for local
area coverage. The Universal Mobile Telecommunications System (UMTS)
will meet these demands.
It is envisaged that UMTS will:
- have a spectrum environment able to respond to long-term 21st-century
evolution and growth of services and applications;
~ bring about fixed and mobile, public and private, network convergence;
- effectively integrate cellular, cordless, paging, data, pmr, satellite, etc.,
systems;
- support a multiplicity of operators, service providers and applications;
— plan for European-wide roll-out of new mobile, broadband, multi-media
and information services;
- expect mobile terminal transmission needs to vary between and during
calls;
_ assume multi-mode terminals of widely differing capabilities.
UMTS is to be compatible with the International Mobile Telecommunications

(IMT-2000), formerly known as Future Public Land Mobile Telecommunica-
tions System (FPLMTS), being developed within the ITU on a world wide
level. Therefore, UMTS will use the frequencies identified for IMT-2000 at
WARC 92 and take into account ITU Recommendations. Consequently, the
minimum requirements of IMT-2000 as approved by the ITU, i.e. 144 kbit/s
wide area coverage, 384 kbit/s local area coverage, 2 Mbit/s indoor coverage
and 9.6 kbit/s satellite coverage, will be met by UMTS.
The European Radiocommunication Office (ERO) of the ERC has developed a
report on UMTS, as a work requirement for the European Commission,
gathering information from administrations and potential operators, manufac-
turers and other interested parties. The result has been an evaluation of
469
spectrum requirements and timescales related to UMTS. The details of this

Decision are based on this comprehensive work.
2. BACKGROUND
The cellular mobile market has grown tremendously over the past years and
new services are constantly emerging within the information society.
The European Commission has proposed in the Green Paper ‘A common
approach in the field of mobile and personal communications in the European
Union’, that specific action should be taken to establish an ERC Decision for
the allocation of harmonised bands with sufficient spectrum resources for the
Universal Mobile Telecommunications System (UMTS). Furthermore, exten-
sive research on UMTS was conducted within the RACE Programme and now
this work is being carried on within the ACTS Programme of the European
Commission.
The standardisation work for UMTS started in ETSI (European Telecommu-
nications Standards Institute) in 1991. ETSI has defined the system concept
and reference model and it is expected that the standard for UMTS will be
finalised by the end of 1999. Through its input to the ERO study on UMTS,
ETSI has also contributed to the progression of spectrum issues.
In May 1996 European regulators, operators and manufacturers established
the UMTS Forum which has amongst its objectives the establishment of a
common view on the development and implementation of UMTS, which builds
on the success of GSM, as well as strategic guidance to the standardisation
work, aiming for a global system outline by 2000, with pilot system introduc-
tion starting in 2002 and mass commercial introduction by 2005. The aim of
the UMTS Forum, which also has a group dealing with spectrum issues, is to
realise these objectives based on an industry wide consensus view. The most
important view of the spectrum group is that the IMT-2000 spectrum should be
identified as the core band for UMTS.

The allocation or designation of a frequency band for its use by a service or
system under specified conditions in CEPT member countries is laid down by
law, regulation or administrative action. The ERC recognises that for UMTS
to be introduced successfully throughout Europe, manufacturers and operators
must be given the confidence to make the necessary investment in this new
radiocommunications system and service. Therefore ERC believes that it is
necessary to designate from the outset an adequate amount of spectrum to
provide core bands, creating the environment for multiple commercial opera-
tors to offer broadband services. This will enable the multiple operator
environment with all operators offering new broadband services. A commit-
ment by CEPT member countries to implement an ERC Decision will provide
a clear indication that the required frequency bands will be made available on
time and on a European-wide basis.
As confirmed at the ERO UMTS Workshop on 6 June 1996, there is a need for
an ERC Decision identifying the IMT-2000 band as the core band for UMTS.
The ERC Decision on UMTS should be embedded in a flexible approach that
will allow some room to adapt to specific national situations and needs while
giving firm guidelines to administrations, operators, and manufacturers. For
the time being satellite and terrestrial use should not be mixed.
The question of additional bands for UMTS should be decided at a later point
in time. Consequently it should be possible to look into different sharing
scenarios and/or reallocation costs in further detail. Moreover, it will also be
possible to study the market, i.e. how second generation services and UMTS
are developing, in further detail so that requirements can be predicted more
accurately at a future point in time.
ERC DECISION
30 JUNE 1997
MOBILE TELECOMMUNICATIONS SYSTEM (UMTS)

tions,
considering:
a) that there is a growing demand not only for mobile voice services, but
also for mobile data services up to 144 kbit/s and with certain restrictions
in mobility up to 2 Mbit/s;
b) that UMTS is being developed to meet this demand;
c) that UMTS will offer third generation mobile services;
d) that UMTS is to be compatible with the International Mobile Telecom-
munications (IMT-2000), formerly known as Future Public Land Mobile
Telecommunications System (FPLMTS), being developed within the
TU;
e) that WARC 92 adopted Resolution 212 and WRC 95 updated this
solution;
f) that the bands 1900-2025 MHz and 2110-2200 MHz are currently used
for the fixed and/or mobile service in several CEPT member countries;
g) that there will be differences in the demand for UMTS spectrum across
Europe which could lead to an offset in timescales concerning the service
introduction and the availability of frequencies;
h) that ETSI is currently standardising UMTS with the aim of having
specifications ready by the end of 1999;
i) that in general sharing between the satellite and the terrestrial component
of IMT-2000 is not feasible, however further study of sharing between

terrestrial indoor use and satellite (space-to-Earth) use is required;
j) that in other parts of the world the introduction of systems into parts of
the frequency bands identified for the introduction of IMT-2000 has
already commenced;
k) that spectrum requirements for UMTS are preliminarily estimated to go
beyond the spectrum made available for IMT-2000 through footnote
S5.388 of the Radio Regulations of the ITU when mass market break-
through occurs;
that further studies are necessary to estimate the exact requirements for
UMTS and where additional spectrum, if required, can be made avail-
able;
m) that there are separate ERC Decisions covering the MSS bands at 2 GHz
and related transitional arrangements,
DECIDES
Ih that for the purpose of this Decision, the Universal Mobile Telecommu-
nications System (UMTS) shall mean equipment complying with the
European Telecommunications Standards for UMTS;
to designate the frequency bands 1900-1980 MHz, 2010-2025 MHz and
2110-2170 MHz to terrestrial UMTS applications;
to accommodate UMTS satellite component applications within the
bands 1980-2010 MHz and 2170-2200 MHz;
that at least 2 x 40 MHz in the bands 1900-1980 MHz and 2110-2170
MHz shall be made available for UMTS by 1 January 2002. Further
spectrum could be made available from the bands in Decides 2 by 1
January 2005 subject to market demand;
that the spectrum requirements and the date of availability will be
reviewed once UMTS has been introduced and some experience has been
gained on practical operational requirements;
that this Decision shall enter into force on 1 October 1997;

MoBILE TELECOMMUNICATIONS SYSTEM (UMTS)

Austria
Finland
Germany
Lithuania
Netherlands
Norway
Portugal
Spain
Turkey
United Kingdom
Belgium
Croatia
Denmark
Estonia
Hungary
Iceland
Ireland
Slovenia
Sweden
ERC DECISION
OF 30 JUNE 1997
ON THE PROVISION OF INFORMATION FOR A DATA BASE OF LICENSING
REQUIREMENTS FOR VSAT/SNG
1. INTRODUCTION
There is a growing demand for operators of VSAT and SNG services to be able
to work in more than one country. Since licences are required in order to
operate the equipment in each country, it is considered helpful to have a central
point to acquire information about the regulatory framework in the different
countries.
With the aim of harmonisation and in order to simplify the procedures for
applying for licences to operate VSAT and SNG services, administrations will
provide information to the European Telecommunications Office (ETO) so that
applicants can find out from a central point the requirements of individual
administrations. It has been agreed that the ETO will maintain the database.
The European Committee for Telecommunications Regulatory Affairs (EC-
TRA) in CEPT is responsible for telecommunications matters and will issue a
decision to cover similar aspects on the telecommunications side.
The database will contain information about the terms and conditions of
licences, licence fees, technical parameters of the services, information about
applicable legislation and contact details within administrations. Detailed
requirements for the contents of the data base are set out in the annex to this
Decision.

Since this data base contains information which administrations need to
provide and regularly update, an ERC Decision is necessary.
474
ERC DECISION
OF 30 JUNE 1997

tions,
considering:
a) that the licensing regimes differ from country to country;
b) that it could be timeconsuming for the future applicants to get the
necessary information from each individual administration;
c) that it is useful to have access to this information from a central data
base;
d) that ETO has been mandated by ECTRA to establish and maintain a
data base and to make its information publicly available;
e) that it is necessary that the administrations provide the appropriate
information and keep this information updated;
DECIDES
1. that administrations shall provide the information detailed in annex | to
the ETO whenever this information is available according to national
legislation;
2. that the administrations provide up-dated information whenever sub-
stantial changes take place;
Ww that this Decision shall enter into force on 1 October 1997;
Annex |
Framework for a database on VSAT and SNG
1. Background / General information
Reference to the date when the information in items 1—23 is valid.
2. Description of services or systems
Description of VSAT:
Description of SNG:
3. Information on frequencies preferred for uplinks
VSAT:
SNG:
Information on other available frequencies

VSAT:
SNG:
Licensing regime for each system
VSAT:
individual licence
registration/notification
class licence
free regime
SNG:
individual licence
registration/notification
class licence
free regime
Time-schedule for the processing of requests for authorisations
VSAT (with ITU co-ordination):
VSAT (without ITU co-ordination):
SNG (with ITU co-ordination):
SNG (without ITU co-ordination):
Scope of the licence
VSAT: (network or station per station)
SNG: (same)
Organisations issuing the licence(s) including contact information
VSAT:
SNG:
Information required in the application form
VSAT:
SNG:
10. Duration of licence
VSAT:
SNG:
11. Renewal conditions
VSAT:
SNG:
12. Fees
VSAT:
SNG:
13. Rights and obligations of the licensee
VSAT:
SNG:
14. Cases of rejection of a request for authorisation

VSAT:
SNG:
13, Procedures when appealing
VSAT:
SNG:
16. Sanctions and penalties
VSAT:
SNG:
17. Revocations and changes of licences
VSAT:
SNG:
18. Data protection rules
VSAT:
SNG:
19. Essential requirements
VSAT:
SNG:
20. Resolution of disputes
VSAT:
SNG:
21. National laws and regulations (titles of acts, decrees etc.)
VSAT:
SNG:
22. National application form (titles and references)
VSAT:
SNG:
23. Transfer of licences
VSAT:
SNG:

Austria
Finland
Germany
Liechtenstein
Netherlands
Norway
Portugal
Switzerland
United Kingdom
ERC DECIisION
OF 20 MARCH 1998
ON FREE CIRCULATION AND USE OF INMARSAT-D TERMINALS IN CEPT MEMBER
COUNTRIES ENLARGING THE FIELD OF APPLICATION OF ERC/DEC/(95)o1
1. INTRODUCTION
The ERC/Decision/(95)01 identifies three levels of free circulation of radio
equipment in CEPT member countries as follows:
1. free circulation without permission of using the radio equipment;
2. free circulation with permission of using the radio equipment;
market.
The ERC/DEC/(95)01 only covers levels 1 and 2 on free circulation of GSM

and DECT mobile equipment, Omnitracs terminals for the Euteltracs system,
Inmarsat-C terminals, Inmarsat-M terminals and PR-27 mobile stations.
This new Decision, however, deals with only the level two of free circulation
since level one is already covered by ERC/DEC/(95)01.
2. BACKGROUND
It is a general aim of the European Radiocommunications Committee (ERC)
to facilitate the free circulation of radio equipment.
The aim of this Decision is to allow the free circulation of Inmarsat-D
terminals in the same way as ERC/DEC/(95)01 does for the radio equipment
categories identified therein.
Separate Decisions have been made for free circulation and use of other
categories of equipment.

According to the ERC Rules of Procedure, an ERC Decision cannot be
amended without abrogating the existing one. Therefore, there is a need for a
separate ERC Decision to allow for free circulation and use of Inmarsat-D
terminals.
479
ERC DECISION
OF 20 MARCH 1998
COUNTRIES ENLARGING THE FIELD OF APPLICATION OF ERC/DEC/(95)oI
tions,
considering:
a) that ERC/DEC/(95)01 provides for free circulation and use of a limited
number of radio equipment categories;
b) that Inmarsat-D terminals also fulfil the conditions for free circulation
and use under the general principles of ERC/DEC/(95)01;
c) that the terminals are capable of operating in the frequency bands 1525—
1559 MHz (space-to-earth) and 1626.5—1660.5 MHz (earth-to-space)
under the control of the satellite system;
d) that the band 1660—1660.5 MHz is allocated to the mobile satellite service
(earth-to-space) and to the radio astronomy service on a primary basis
whereas No. S.5.376A of the Radio Regulations specifies that mobile
earth stations in the band 1660—-1660.5 MHz shall not cause harmful
interference to stations of the radio astronomy service;
e) that the satellite system limits the frequency use of the terminal in
accordance with the frequency allocations of the ITU Radio Regulations,
the requirements of national administrations and the co-ordination
agreements with other satellite systems, which are agreed between
administrations and which are subject to annual spectrum-sharing re-
views between the satellite operators;
DECIDES
[ that administrations shall allow the free circulation and use of Inmarsat-
D terminals under the same conditions, in the same form and following
the same procedures as laid down in ERC/DEC/(95)01;
that this Decision shall enter into force on 1 April 1998;
that administrations shall communicate the national measures imple-
menting this Decision to the ERC Chairman and the ERO when the
Decision is nationally implemented.
COUNTRIES ENLARGING THE FIELD OF APPLICATION OF ERC/DEC/(95)o1
(CEPT/ERC/DEC/(98)or)
As of 1 June 1998 the following CEPT Members have committed themselves to

apply the terms of this Decision:
Austria
Croatia
Finland
France
Italy
Norway
Turkey
United Kingdom
After 1 June 1998 the undermentioned CEPT Members have committed
Belgium
Czech Republic
Denmark
Estonia
Iceland
Ireland
Netherlands
Slovenia
Sweden
Switzerland
ERC DECISION
OF 20 MARCH 1998
ON FREE CIRCULATION AND USE OF INMARSAT-PHONE (ALSO KNOWN AS
INMARSAT MINI-M) TERMINALS IN CEPT MEMBER COUNTRIES ENLARGING
THE FIELD OF APPLICATION OF ERC/DEC/(95)o1
1. INTRODUCTION
market.
2. BACKGROUND
The aim of this Decision is to allow the free circulation of Inmarsat-phone

(also known as Inmarsat Mini-M) terminals in the same way as ERC/DEC/
(95)01 does for the radio equipment categories identified therein.

separate ERC Decision to allow for free circulation and use of Inmarsat-phone
terminals.
482
ERC DECISION
OF 20 MARCH 1998
ON FREE CIRCULATION AND USE OF INMARSAT-PHONE (ALSO KNOWN AS

tions,
considering:
b) that Inmarsat-phone terminals also fulfil the conditions for free circula-
tion and use under the general principles of ERC/DEC/(95)01;
earth stations in the band 1660-1660.5 MHz shall not cause harmful
DECIDES
iy that administrations shall allow the free circulation and use of Inmarsat-
phone terminals under the same conditions, in the same form and
following the same procedures as laid down in ERC/DEC/(95)01;

ON FREE CIRCULATION AND USE OF INMARSAT PHONE (ALSO KNOWN AS

Austria
Croatia
Finland
France
Italy
Norway
Turkey
United Kingdom

Belgium
Czech Republic
Denmark
Estonia
Iceland
Ireland
Netherlands
Slovenia
Sweden
Switzerland
ERC DECISION
OF 20 MARCH 1998
ON FREE CIRCULATION AND USE OF EMS-PRODAT TERMINALS IN CEPT
MEMBER COUNTRIES ENLARGING THE FIELD OF APPLICATION OF
ERC/DEC/(95)o1 (CEPT/ERC/DEC/(98)o03)
1. INTRODUCTION
market.

2. BACKGROUND
The aim of this Decision is to allow the free circulation of EMS-PRODAT

separate ERC Decision to allow for free circulation and use of EMS-PRODAT
terminals.
485
ERC DECISION
OF 20 MARCH 1998
ERC/DEC/(95)o1 (CEPT/ERC/DEC/(98)03)
tions,
considering:
b) that EMS-PRODAT is a mobile communications system, having a
regional European coverage area, which by means of a satellite connec-
tion can provide low bit rate data communications;
c) that the terminals are capable of operating in the meqpoieeebands 1525-—
d) that EMS-PRODAT terminals also fulfil the conditions for free circula-
tion and use under the general principles of ERC/DEC/(95)01;
that the band 1660—1660.5 MHz is allocated to the mobile satellite service
that the satellite system limits the frequency use of the terminal in
DECIDES
4: that administrations shall allow the free circulation and use of EMS-
PRODAT terminals under the same conditions, in the same form and
ERC/DEC/(95)o1 (CEPT/ERC/DEC/(98)03.)
As of | June 1998 the following CEPT Members have committed themselves to

Croatia
Finland
France
Italy
Norway
Turkey
United Kingdom
Austria
Belgium
Czech Republic
Denmark
Estonia
Iceland
Ireland
Netherlands
Slovenia
Sweden
Switzerland
ERC DECISION
OF 20 MARCH 1998
ON FREE CIRCULATION AND USE OF EMS-MSSAT TERMINALS IN CEPT
ERC/DEC/(95)o1 (CEPT/ERC/DEC/(98)o04)
1. INTRODUCTION
2. — free circulation with permission of using the radio equipment;
market.
2. BACKGROUND
The aim of this Decision is to allow the free circulation of EMS-MSSAT


separate ERC Decision to allow for free circulation and use of EMS-MSSAT
terminals.
488
ERC DECISION
OF 20 MARCH 1998
tions,
considering:
b) that EMS-MSSAT is a mobile communications system, having a regional
European coverage area, which by means of a satellite connection can
provide two-way voice, facsimile, data and short message services;
1559 MHz (space-to-earth) and 1626.5-1660.5 MHz (earth-to-space)
d) that EMS-MSSAT terminals also fulfil the conditions for free circulation
that the band 1660—1660.5 MHz is allocated to the mobile satellite service
earth stations in the band 1660—1660.5 MHz shall not cause harmful
DECIDES
hy that administrations shall allow the free circulation and use of EMS-
MSSAT terminals under the same conditions, in the same form and
CEPT/ERC/DEC(98)04 490


Croatia
Finland
France
Italy
Norway
Turkey
United Kingdom

Austria
Belgium
Czech Republic
Denmark
Estonia
Iceland
Ireland
Netherlands
Slovenia
Sweden
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT-D TERMINALS
FOR LAND MOBILE APPLICATIONS
1. INTRODUCTION
Licensing is an appropriate tool for Administrations to regulate the use of
radio equipment and the efficient use of the frequency spectrum. However, the
technical characteristics of radio equipment require less intervention from the
Administrations as far as the installation and use of equipment is concerned.
Administrations and especially users, retailers and manufacturers will benefit
from a more deregulated system of authorising the use of radio equipment.
2. BACKGROUND
There is a general agreement that when the efficient use of the frequency
spectrum is not at risk and as long as harmful interference is unlikely, the
installation and use of radio equipment might be exempted from licence.
In general the CEPT Administrations apply similar systems of licensing and

exemption from individual licensing. However, different criteria are used to
decide whether radio equipment should be licensed or exempted from an
individual licence.
The free movement of radio equipment and the provision of Pan European
wide services will be greatly assisted when all CEPT Administrations would
exempt the same categories of radio equipment from licensing and apply -to
achieve that- the same criteria to decide on this.
When radio equipment is subject to an exemption from individual licensing,
anyone can buy, install, possess and use the radio equipment without any prior
individual permission from the Administration. Furthermore, the Administra-
tion will not register the individual equipment. The use of the equipment can be
subject to general provisions or general licence.

ERC/REC 01-07 that was adopted in 1995 listed harmonised criteria for the
Administrations to decide whether an exemption of individual licence should
be applied. The aim of this Decision is to exempt land mobile Inmarsat-D
terminals from individual licensing because they fulfil the criteria for exemp-
tion listed in ERC/REC 01-07.
49]
ERC DECISION
OF 23 NOVEMBERI998
tions,
considering:
a) that within the CEPT Administrations there is a growing awareness of a
need for harmonisation of licensing regimes in order to facilitate the free
circulation of radio equipment;
b) that it therefore would be desirable for CEPT Administrations to have
common licence regimes at their disposal in order to control the
installation, ownership and use of radio equipment;
c) that there is a strong desire within the CEPT Administrations to improve
efficiency by reducing the control exercised by Administrations in the
form of mandatory provisions;
d) that there is considerable difference in national licensing, laws and
regulations and that harmonisation therefore can only be introduced
gradually;
e) that national licensing regimes should be as simple as possible, in order to
minimise the burden upon the Administrations and users of equipment;
That intervention by the national Administrations with respect to the use
of radio equipment should in general not exceed the level necessary for
the efficient use of the frequency spectrum;
g) that Administrations should work towards the exemption of relevant
radio equipment from individual licensing based on harmonised criteria
detailed in ERC/REC 01-07;
noting
(a) that Inmarsat-D terminals for land mobile applications operate on the
frequency bands 1525-1559 MHz (space-to-Earth) excluding the band
1544-1545 MHz and 1626.5—1660.5 MHz (Earth-to-space), excluding the
band 1645.5—-1646.5 MHz, under the control of the satellite system
providing low bit rate data communications;
(b) that land mobile Inmarsat-D terminals complying with ETS 300 254 — or
TBR 026 where applicable — also fulfil the criteria for exemption listed in
ERC/REC 01-07;
DECIDES
1, to exempt Inmarsat-D terminals that fulfil noting a) and b) from
individual licensing;
Z that this Decision shall enter into force on 1 December 1998 at the latest;
3. that CEPT Administrations shall communicate the national measures

implementing this Decision to the ERC Chairman and the ERO when the

As of 15 February 1999 the following CEPT Members have committed

Austria
Croatia
Denmark
Finland
Germany
Island
Netherlands
Norway
Turkey
United Kingdom
After 15 February 1999 the following CEPT Members have committed
Belgium
Czech Republic
Ireland
Italy
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT-C TERMINALS
1. INTRODUCTION
2. BACKGROUND
individual licence.
exempt the same categories of radio equipment from licensing and apply — to
achieve that — the same criteria to decide on this.

be applied. The aim of this Decision is to exempt land mobile Inmarsat-C
494
ERC DECISION
OF 23 NOVEMBER 1998

tions,
considering:
gradually;
f) that intervention by the national Administrations with respect to the use
noting
(a) that Inmarsat-C terminals for land mobile applications operate on the
frequency bands 1525-1559 MHz (space-to-Earth), excluding the band
band 1645.5-1646.5 MHz under the control of the satellite system
(b) that land mobile Inmarsat-C terminals for land mobile applications
complying with ETS 300 254 — or TBR 026 where applicable — also fulfil
the criteria for exemption listed in ERC/REC 01-07;
DECIDES
1. to exempt Inmarsat-C terminals for land mobile applications that fulfil
noting a) and b) from individual licensing;
2. that this Decision shall enter into force on | December 1998 at the latest;



Austria
Croatia
Denmark
Finland
Germany
Island
Netherlands
Norway
Turkey
United Kingdom

Belgium
Czech Republic
Ireland
Italy
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT-M TERMINALS
1. INTRODUCTION
2. BACKGROUND
individual licence.

be applied. The aim of this Decision is to exempt land mobile Inmarsat-M
497
ERC DECISION
OF 3 NOVEMBER 1998
tions,
considering:
gradually;
that intervention by the national Administrations with respect to the use
noting
(a) that Inmarsat-M terminals for land mobile applications operate on the
1544-1545 MHz and 1626.5-1660.5 MHz (Earth-to-space), excluding the
providing voice and data communications;
(b) that Inmarsat-M terminals for land mobile applications complying with
ETS 300 423 — or TBR 044 where applicable — also fulfil the criteria for
exemption listed in ERC/REC 01-07;
DECIDES
Ls to exempt Inmarsat-M terminals for land mobile applications that fulfil
Z that this Decision shall enter into force on 1 December 1998 at the latest;



Austria
Croatia
Denmark
Finland
Germany
Island
Netherlands
Norway
Turkey
United Kingdom
Belgium
Czech Republic
Ireland
Italy
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF OMNITRACS TERMINALS
FOR THE EUTELTRACS SYSTEM
1. INTRODUCTION
2. BACKGROUND
installation and use of radio equipment might be exempted from license.
individual licence.

be applied. The aim of this Decision is to exempt Omnitracs terminals for the
Euteltracs system from individual licensing because they fulfil the criteria for
exemption listed in ERC/REC 01-07.
500
ERC DECISION
OF 23 NOVEMBER 1998

tions,
considering:
gradually;
noting
(a) that Omnitracs terminals for the Euteltracs system operate on the
frequency bands 10.70-11.70 GHz (space-to-Earth), 12.50-12.75 GHz
(space to Earth) and 14.00—14.25 GHz (Earth-to-space) under the control
of the satellite system providing low bit rate data communications;
(b) that Omnitracs terminals for the Euteltracs system complying with ETS
300 255 — or TBR 027 where applicable — also fulfil the criteria for
CEPT/ERC/DEC/
(98) 15 502
DECIDES
1. | toexempt Omnitracs terminals for the Euteltracs system that fulfil noting
a) and b) from individual licensing;
2. that this Decision shall enter into force on 1 December 1998 at the latest;


Austria
Croatia
Denmark
Finland
Germany
Island
Netherlands
Norway
Turkey
Belgium
Czech Republic
Ireland
Italy
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF ARCANET SUITCASE
TERMINALS
1. INTRODUCTION
2. BACKGROUND
individual licence.

be applied. The aim of this Decision is to exempt ARCANET Suitcase
503
ERC DECISION
OF 23 NOVEMBER 1998
TERMINALS
tions,
considering:
gradually;
noting
(a) that ARCANET Suitcase terminals operate within on the frequency
bands 11.45-11.70 GHz (space-to-Earth), 12.50-12.75 GHz (space to
Earth) and 14.00—14.25 GHz (Earth-to-space) under the control of the
satellite system providing digital voice and data communications;
(b) that ARCANET Suitcase terminals complying with ETS 300 255 — or
TBR 027 where applicable — also fulfil the criteria for exemption listed in
ERC/REC 01-07;
CEPT/ERC/ DEC/ (98)1I7 505
DECIDES
1. toexempt ARCANET Suitcase terminals that fulfil noting a) and b) from

TERMINALS

Croatia
Denmark
Finland
Germany
Island
Netherlands
Turkey
Belgium
Czech Republic
Ireland
Italy
Norway
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF EMS-PRODAT TERMINALS
(CEPT/ERC/DEC/(98) 18)
1. INTRODUCTION
2. BACKGROUND
individual licence.

be applied. The aim of this Decision is to exempt land mobile EMS-PRODAT
506
ERC DECISION
OF 23 NOVEMBER 1998
tions,
considering:
gradually;
noting
(a) that EMS-PRODAT terminals for land mobile applications operate on
the frequency bands 1525-1559 MHz (space-to-Earth), excluding the
band 1544-1545 MHz and 1626.5—1660.5 MHz (Earth-to-space), exclud-
ing the band 1645.5—1646.5 MHz under the control of the satellite system
(b) that land mobile EMS-PRODAT terminals complying with ETS 300 254
— or TBR 026 where applicable — also fulfil the criteria for exemption
listed in ERC/REC 01-07;
DECIDES
1. to exempt EMS-PRODAT terminals that fulfil noting a) and b) from
2. that this Decision shall enter into force on | December 1998 at the latest;


Austria
Croatia
Denmark
Finland
Germany
Island
Netherlands
Turkey
United Kingdom

Belgium
Czech Republic
Ireland
Italy
Norway
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF EMS-MSSAT TERMINALS
1. INTRODUCTION
2. BACKGROUND
individual licence.

be applied. The aim of this Decision is to exempt land mobile EMS-MSSAT
509
ERC DECISION
OF 23 NOVEMBER 1998
tions,
considering:
gradually;
noting
(a) that EMS-MSSAT terminals for land mobile applications operate on the
providing two-way voice, facsimile, data and short message service;
(b) that land mobile EMS-MSSAT terminals complying with ETS 300 423 —
or TBR 044 where applicable — also fulfil the criteria for exemption listed
in ERC/REC 01-07;
CEPT/ERC/DEC/ (98 )19 5'1
DECIDES
1. to exempt EMS-MSSAT terminals that fulfil noting a) and b) from


Austria
Croatia
Denmark
Finland
Germany
Island
Netherlands
Turkey
United Kingdom
Belgium
Czech Republic
Ireland
Italy
Norway
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON FREE CIRCULATION AND USE OF ARCANET SUITCASE TERMINALS IN
CEPT MEMBER COUNTRIES ENLARGING THE FIELD OF APPLICATION OF
ERC/DEC/(95)o1
1. INTRODUCTION
The ERC/DEC/(95)01 identifies three levels of free circulation of radio
market.
2. BACKGROUND
The aim of this Decision 1s to allow the free circulation of ARCANET suitcase

separate ERC Decision to allow for free circulation and use of ARCANET
suitcase terminals.
oi2
ERC DECISION
OF 23 NOVEMBER 1998
CEPT MEMBER COUNTRIES ENLARGING THE FIELD OF APPLICATION OF
ERC/DEC/(95)o1

tions,
considering:
b) that ARCANET is a communications system, having a regional Eur-
opean coverage area, which by means of a satellite connection can
provide voice and data communications;
c) that the terminals are capable of operating in the frequency bands 11.45—
11.70 GHz (space-to-earth), 12.50-12.75 GHz (space-to-earth) and
14.00—14.25 GHz (Earth-to-space) under the control of the satellite
system;
d) that ARCANET suitcase terminals comply with ETS 300 255 or TBR 027
and also fulfil the conditions for free circulation and use under the
general principles of ERC/DEC/(95)01;
e) that this Decision does not apply to the ARCANET terminals when
utilised as a fixed VSAT terminal;
accordance with the frequency allocations of the ITU Radio Regulations.
DECIDES
i that administrations allow the free circulation and use of ARCANET
suitcase terminals under the same conditions, in the same form and
that this Decision shall enter into force by 1 December 1998;

CEPT MEMBER COUNTRIES ENLARGING

Croatia
Denmark
Estonia
Finland
Germany
Island
Netherlands
Turkey

Belgium
Czech Republic
Ireland
Italy
Norway
Switzerland
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT-PHONE TERMINALS
(ALSO KNOWN AS INMARSAT MINI-M) FOR LAND MOBILE APPLICATIONS
1. INTRODUCTION
2. BACKGROUND
individual licence.

be applied. The aim of this Decision is to exempt land mobile Inmarsat-mini M
S15
ERC DECISION
OF 23 NOVEMBER 1998
ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT MINI-M
TERMINALS FOR LAND MOBILE APPLICATIONS

tions,
considering:
gradually;
noting:
(a) that Inmarsat-mini M terminals for land mobile applications operate on
the frequency bands 1525-1559 MHz (space-to-Earth), exclusing the
band 1544-1545 MHz and 1626.5-1660.5 MHz (Earth-to-space), exclud-
ing the band 1645.5—1646.5 MHz under the control of the satellite system
providing voice and data communications;
(b) that Inmarsat-mini M terminals for land mobile applications complying
with ETS 300 423 — or TBR 044 where applicable — also fulfil the criteria
for exemption listed in ERC/REC 01-07;
CEPT/ERCG/DEC/ (98)29 517
DECIDES
1. to exempt Inmarsat mini-M terminals for land mobile applications that
fulfil noting a) and b) from individual licensing;
D. that this Decision shall enter into force on 1 December 1998 at the latest;

ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT MINI-M
TERMINALS FOR LAND MOBILE APPLICATIONS

Austria
Croatia
Denmark
Finland
Germany
Island
Netherlands
Norway
Turkey
United Kingdom
Belgium
Czech Republic
Ireland
Italy
Switzerland
RECOMMENDATION ERC 21-15 E (TURKU 1996, GRONINGEN 1998)
FREE CIRCULATION AND USE OF LAND MOBILE SATELLITE

SERVICE TERMINALS IN EUROPE
RECOMMENDATION ADOPTED BY THE WORKING GROUP ‘RADIO REGULATORY’

(WGRR)
INTRODUCTION
1. Definition
According to the Radio Regulations, the Land Mobile Satellite Service
(LMSS) is defined as a space radiocommunications service between mobile
earth stations, i.e. earth stations intended to be used while in motion or during
halts at unspecified points where the mobile earth stations are located on land,
and one or more space stations.
2. Levels of Free Circulation

According to the ERC Decision on free circulation of radio equipment (ERC/
DEC/(95)01) three different levels of free circulation were identified:
Level | — free circulation without permission to use the radio equipment;
Level 2 — free circulation with permission to use the radio equipment;
Level 3 — free circulation with permission to place the radio equipment on the
market.
This Recommendation only relates to levels 1 and 2 of free circulation.
3. Importance of Free Circulation for LMSS

The ERC has decided that one of its policy goals is to provide for the free
circulation of radio equipment within CEPT member countries.
Concerning land mobile-satellite communications, the number of users of

LMSS terminals increased rapidly in recent years, in particular those used by
entities involved in the international transport of goods around Europe.
Subsequently the free border-crossing and use of radio equipment is a

fundamental factor to achieve the full development of commercial and
industrial activities in CEPT member countries, thereby benefiting the con-
sumers.
Therefore, CEPT member countries have decided to establish regulatory
mechanisms in order to enable foreign visitors to carry and use LMSS
terminals without requiring a national licence.
The same considerations would also apply to non-CEPT countries who may
therefore also want to join in the free circulation arrangements.
518
4. Need for the Recommendation

In order to enable the free circulation and use of LMSS terminals a number of
Recommendations have been adopted in the past.
As a first step T/R 21-07 was introduced. That was a generic Recommendation
which could be used for all kinds of systems, but was in reality only used for
LMSS.
The procedure of this Recommendation was that a Circulation Card was
issued to the holder of the terminal on which it was indicated in which
countries the terminal could enter and whether or not it could be used.
Exchanging the required information between the participating administra-

tions, keeping the information on the Circulation Card up to date and issuing
the card to all persons requiring it was a lot of work, specially since there was at
that moment in time no central office like the ERO which could assist in these
procedures.
Therefore subsequently separate Recommendations dealing with Inmarsat-C,
EutelTRACS and Inmarsat -M terminals were produced (T/R 31-02, T/R 21-
09 and T/R 21-11).
These Recommendations did not require a Circulation Card. A specific mark,
which denoted that the terminal complied with the technical requirements of
the system operator, was sufficient for free circulation and use.
These last mentioned Recommendations were of a temporary nature. This was
a condition for acceptance of the type testing performed by the satellite
operators until European standards covering LMSS terminals would have been
finalised and accepted.
The Recommendations were valid until end of December 1995.
Although these Recommendations were intended to replace T/R 21-07 and the
Circulation Card procedure, there are still many administrations that require a
Circulation Card.
In 1995 an ERC Decision on free circulation of radio equipment was adopted
(ERC/DEC/(95)01). This Decision covers Inmarsat-C, EutelTRACS and
Inmarsat-M terminals and stipulates that the carriage and use of these
terminals shall be allowed without requiring any kind of licence or registration
in the country visited.
However, since it is expected that the implementation of the Decision requires
considerable time and the system specific Recommendations have expired since
01 January 1996, an arrangement safeguarding the free circulation of these
terminals until the Decision has been implemented in the vast majority of
countries is considered necessary.
CEPT/ERC/REC 21-15 520
When the Decision is implemented by nearly all CEPT countries this

Recommendation might be reconsidered or used primarily for non-CEPT
countries.
5. Procedure of the Recommendation

Since — as mentioned above — many administrations still require a Circulation
Card, this Recommendation provides the facility for administrations, either to
require a Circulation Card or to allow the free circulation and use (level 2) on
the basis of an appropriate CEPT marking of the equipment.
The terminals should in any case conform to the relevant ETSI standards.
It is however obvious that free circulation and use (level 2) on the basis of
marking alone is the preferred option, since it minimizes the administrative
burden on users, operators and administrations. .
In fact, it is desirable to abandon the Circulation Cards scheme in the future
due to the practical and administrative dificulties that it implies and allow the
free circulation and use (level 2) solely on the basis of an appropriate CEPT
marking affixed on the equipment.
Therefore and in order to achieve the above-mentioned objective, this
recommendation should be reviewed within three years.
The CEPT marking as defined in this Recommendation enables the free
circulation and use (level 2) of terminals by visitors from other countries.
This Recommendation does not affect the conformity assessment procedures

and the relevant marking regulations within the EEA, specially those emerging
from the EC Directive 91/263/EEC extended by the EC Directive 93/97/EEC
which cover Satellite Earth Station terminals.
ERO will register and update the information from all CEPT countries whether
free circulation is based on the marking system or if, in addition, the
Circulation Card is required. If necessary, the administrations should upon
request enable LMSS users in their respective country to be issued with the
circulation cards.
Non-CEPT administrations who want to join the free circulation system shall
apply to the CEPT for participation. When the application is accepted the ERO
shall include the relevant information in a list in accordance with the Appendix
II to this Recommendation.
tions,
considering
a) that several systems offering communications services using voice and/or
data transmissions have been introduced as a Land Mobile Satellite
Service (LMSS) in Europe;
b) that some of these systems provide interconnection with a public

telecommunications network;
c) that it is desirable for administrations to have common regulations at
their disposal, concerning the marking and free circulation and use of
LMSS terminals;
d) that LMSS terminals are required to meet the standards of technical
performance as specified in annexes | to 8 of this Recommendation;
€) that if new LMSS systems emerge, the relevant new Annexes can be
added into this recommendation;
that this recommendation relates only to the carriage and use of LMSS
terminals by foreign visitors during their temporary stay, and does not
cover the mutual recognition of type approval and/or placing on the
market;
g) that the band 1660—1660.5 MHz is allocated to mobile satellite service
(earth-to-space) and radio astronomy service on a primary basis whereas
No. S.5.376A of the Radio Regulations specifies that mobile earth
stations in the band 1660—1660.5 MHz shall not cause harmful inter-
ference to stations of the radio astronomy service;
recommends
1) that administrations allow the free circulation and use of the LMSS
terminals which have been marked in accordance with the annexes | to
8, for foreign visitors during their temporary stay, without requiring a
national licence;
2) that administrations allow on a reciprocal basis the free circulation and
use of LMSS terminals authorised by a non-CEPT administration that
participates in the arrangement of this Recommendation in accordance
with Appendix III;
3) that whenever the free circulation and use cannot be allowed solely on the
basis of the mark, administrations can require the user of equipment to
carry a CEPT circulation card in accordance with Appendix I;
4) that administrations implementing this Recommendation inform their
customs authorities of the procedures contained in this Recommenda-
tion;
5) that administrations notify to the ERO in the form described in Appendix
IV the free circulation arrangements they have made;
6) that ERO publishes and updates this information in the form described in
Appendix II;
7) that administrations, not being members of CEPT, accepting the provi-
sions of this Recommendation, may apply for participation in accor-
dance with the procedure in Appendix III;
8) that the procedure in handling applications from non-CEPT countries
shall be as described in Appendix III;
9) that ERO publishes and updates the information of non-CEPT countries
joining this Recommendation, in the form described in Appendix II.
ANNEX 1
Inmarsat-C
a) New Inmarsat-C terminals

Free circulation and use should be allowed for terminals fulfilling the require-
ments of the ETS 300 254 or the TBRs covering Satellite Earth Stations, Land
Mobile Earth Stations providing low bit rate data communications and capable
of operating in the frequency bands 1525-1559 MHz (space-to-earth) and
1626.5-1660.5 MHz (earth-to-space) under the control of the satellite system.
The marking shall be an easily visible mark, placed on the Inmarsat-C

terminals in the following form:
CEPT/INMARSAT-C/LM/Y
Y is the symbol of the country where the equipment has met the relevant
conformity assessment procedures.
b) Old Inmarsat-C terminals

In case of equipment that has been taken into use prior to the introduction of
this Recommendation, free circulation should be allowed for terminals ful-
filling the requirements of module 4 of the Inmarsat-C System Definition
Manual (SDM).
This equipment shall be marked with the Inmarsat logo followed by the
Inmarsat type testing certificate number in the following form:
INMARSAT-C/LM/...
ANNEX 2
Inmarsat-M
a) New Inmarsat-M terminals

Mobile Earth Stations providing voice and data communications and capable
1626.5-1660.5 MHz (earth-to-space) under the control of the satellite system.
The marking shall be an easily visible mark, placed on the Inmarsat-M
CEPT/INMARSAT-M/LM/Y
b) Old Inmarsat-M terminals

filling the standards of technical performance as described in Module 2, Part 1
of the Inmarsat-M System Definition Manual (SDM) November, 1991.
This equipment shall be marked with the Inmarsat logo followed by the
Inmarsat type testing certificate number in the following form:
INMARSAT-M/LM/...
ANNEX 3
Eutelsat/Euteltracs
a) New Eutelsat/Euteltracs terminals
of operating in the frequency bands 10.70-1.70 GHz (space-to earth), 12.50—
12.75 GHz (space-to-earth) and 14.0-14.25 GHz (earth-to-space) under the
control of the satellite system.
The marking shall be an easily visible mark, placed on the terminals in the
following form:
CEPT/EUTELSAT/ET-LM/Y
b) Old Eutelsat/Euteltracs terminals

filling the standards of technical performance as described in Eutelsat docu-
ment “OmniTRACS Mobile Communications Terminal Technical Definition
for the EUTELTRACS System, Version ET-1.3”.
This equipment shall be marked with the EUTELSAT logo and the EUTEL-
SAT type testing certificate number in the following form:
EUTELSAT/ET-LM/...
ANNEX 4
Inmarsat-D
1626.5—1660.5 MHz (earth-to-space) under the control of the satellite system.
The marking shall be an easily visible mark, placed on the Inmarsat-D
CEPT/INMARSAT-D/LM/Y
ANNEX 5
Inmarsat-phone (also known as Inmarsat Mini-M)
The marking shall be an easily visible mark, placed on the Inmarsat-phone
(also known as Inmarsat mini-M) terminals in the following form:
CEPT/INMARSAT-PHONE/LM/Y
ANNEX 6
European Mobile System (EMS) - PRODAT
The marking shall be an easily visible mark, placed on the EMS-PRODAT

CEPT/EMS-PRODAT/LM/Y
ANNEX 7
EMS-MSSAT
The marking shall be an easily visible mark, placed on the EMS-MSSAT

CEPT/EMS-MSSAT/LM/Y
ANNEX 8
Eutelsat/ARCANET Suitcase Terminals
Mobile Earth Stations providing digital voice and data communications and
capable of operating in the frequency bands 11.45—11.70 GHz (space-to earth),
12.50-12.75 GHz (space-to-earth) and 14.0—14.25 GHz (earth-to-space) under
the control of the satellite system.
The marking shall be an easily visible mark, placed on the terminals in the
following form:
CEPT/EUTELSAT/AS-LM/Y
APPENDIX I
The CEPT circulation card should be drafted in English. If necessary,

Administrations should upon request enable LMSS users in their respective
countries to be issued with the appropriate CEPT circulation cards.
The CEPT circulation card should take the following form:

Administration of issue
CEPT/ERC
OFFICIAL CIRCULATION CARD

FOR A LAND MOBILE SATELLITE SERVICE TERMINAL
BASED ON CEPT/ERC/REC 21-15
This Official Circulation Card is based on CEPT/ERC/REC 21-15.

The holder of this card carries a Land Mobile Satellite Service (LMSS)
terminal equipment. A number of administrations have agreed to allow the
free border crossing and use of LMSS terminals for foreign visitors.
The holder of this card is recommended to obtain from the ERO the list of
countries allowing the free circulation and use of LMSS terminals. The holder
is recommended to attach this list to the Circulation Card. The updated list is
available in the following address:
European Radiocommunications Office (ERO)

Address: Midtermolen 1, DK-2100 Copenhagen
Telephone: + 45 35 25 03 00
Telefax: + 45 35 25 03 30
E- mail: ero@ero.dk
Web Site: http://www.ero.dk
APPENDIX II
National free circulation arrangements
CEPT Co } Inmarsat-C | Inmarsat |Inmarsat} Inmarsat- | Eutelsat EMS EMS Eutelsat

Yes/No unt -D -M phone | Euteltracs |PRODAT | MSSAT |ARCANET
ry
The table should be completed for each type of equipment with the number
from the list below corresponding to the regulations in each country.
. Administration allows the free circulation (border crossing) and use of

the equipment marked in the following form:
Inmarsat-C terminals: CEPT/INMARSAT-C/LM/Y or INMARSAT-C/LM/..;

Inmarsat-D terminals: CEPT/INMARSAT-D/LM/Y;
Inmarsat-M terminals: CEPT/INMARSAT-M/LM/Y or INMARSAT-M/LM/
Inmarsat-phone (also known as Inmrsat Mini-M) terminals: CEPT/INMAR-

SAT-phone/LM/Y;
Eutelsat/Euteltracs terminals; CEPT/EUTELSAT/ET-LM/Y or EUTELSAT/ET-
LM/..;
EMS-PRODAT terminals: CEPT/EMS-PRODAT/LM/Y;
EMS-MSSAT terminals: CEPT/EMS-MSSAT/LM/Y;
Eutelsat/ARCANET Suitcase Terminals: CEPT/EUTELSAT/AS-LM/Y
Administration allows the free circulation and use of the equipment but
requires the user to carry a CEPT circulation card in accordance with
Appendix I;
Administration allows the free circulation but not the use of the
equipment marked in accordance with the form described in | above;
Note: The actual table can be obtained from the European Radiocommunications Office (ERO)
Midtermolen 1, DK-2100 Copenhagen.
Telephone: +45 35 25 03 00
Telefax: +45 35 25 03 30
E-mail: ero@ero.dk
Administration allows the free circulation but not the use of the
equipment and requires the user to carry a CEPT circulation card in
accordance with Appendix J;
Neither free border crossing nor the use of the equipment is possible
unless a national authorization is obtained from the country visited.
APPENDIX III
Participation of a non-CEPT administration in the CEPT
arrangement concerning free circulation and use of LMSS terminals
according to this recommendation
APPLICATION
Administrations, not being members of CEPT, may apply to the CEPT
for participation in the marking and free circulation and use of LMSS
equipment regulated by this Recommendation. Applications should be
addressed to CEPT European Radiocommunications Committee (ERC),
through the European Radiocommunications Office (ERO), (see Appen-
dix I).
A non-CEPT Administration in joining this Recommendation enters
into co-operation with all countries having implemented this Recommen-
dation or implementing it in the future.
lee The application shall include the wish of the non-CEPT administration to
participate in the procedures of this Recommendation and the informa-
tion mentioned in Appendix IV.
Oe PROCEDURES OF APPLICATION
2.1; The ERO shall circulate the application of a non-CEPT administration to
all CEPT administrations, indicating the compliance of the application
with the requirements of this Recommendation.
The ERO shall also include a recommendation concerning the
approval to be given. This recommendation should normally be given
within two weeks from the date of application.
DEgP CEPT administrations will, within a period of six weeks, notify to the
ERO their agreement or disagreement with the proposal. This message
shall also include, if so required by the administration concerned, the
need for a separate bilateral agreement with the applying administration
concerning the implementation of this Recommendation.
Zoe CEPT administrations, which have implemented this Recommendation
and have not replied within the time set in 2.2 will be assumed by the
ERO to have accepted this application.
2.4. The ERO will inform the CEPT administrations and the administration
of the applying non-CEPT administration on the results of the consulta-
tion.
2.a8 The list of those countries which have implemented this Recommenda-
tion will be based on the information contained in the last version of the
document concerning implementation of the T/R Recommendations and
ERC Recommendations.
DAG: A CEPT administration requiring a separate bilateral agreement to apply
this Recommendation with another non-CEPT administration, shall
indicate this in a footnote in the table presented in Appendix II.
A non-CEPT administration requiring a separate bilateral agreement to
apply this Recommendation with another non-CEPT administration,
shall indicate this in a footnote in the table presented in Appendix II.
APPENDIX IV
Notification to the ERO
on free circulation arrangements for LMSS terminals
(see recommends 5 of this Recommendation)
1. Inmarsat-C terminals
irae () may be carried and used:
() marking is sufficient.
() CEPT circulation card required.
£2. () may be carried but not used:
( ) marking is sufficient.
1.3: () may neither be carried nor used without national authorization.
Zz. Inmarsat-D terminals
Dale () may be carried and used:

2e2. () may be carried but not used:
Leds () may neither be carried nor used without national authorization.
3: Inmarsat-M terminals
Cae () may be carried and used:

B23 () may be carried but not used:
ory () may neither be carried nor used without national authorization.
4. Inmarsat- phone (also known as Inmarsat Mini-M) terminals

4.1. () may be carried and used:
4.2. () may be carried but not used:
4.3. () may neither be carried nor used without national authorization.
5. Eutelsat/Euteltracs terminals

( ) marking is sufficient.
6. EMS-PRODAT terminals
7. EMS-MSSAT terminals
8. Eutelsat/ARCANET suitcase terminals
( ) marking is sufficient. f
8.3. may neither be carried nor used without national authorization.
The national customs authorities have been informed of the implementation of

the Recommendation:
yes () not yet ( )
(Any special conditions)

The responsible authority and contact for enquiries concerning the free
circulation and use of
LMSS terminals is:
European Radiocommunications Office (ERO)

Address: Midtermolen 1, DK-2100 Copenhagen
Telephone: + 45 35 25 03 00
Telefax: + 45 35 25 03 30
E- mail: ero@ero.dk
Web Site http: //www.ero.dk
RECOMMENDATION ERC 21-16 E (TURKU 1996, GRONINGEN 1998)
CONFORMITY ASSESSMENT FOR LAND MOBILE SATELLITE

SERVICE TERMINALS, LMSS
Recommendation adopted by the Working Group ‘Radio Regulatory’
(WGRR)
INTRODUCTION
It is noted that the equipment covered by this Recommendation is within the
scope of Directive 93/97/EEC supplementing Directive 91/263/EEC on the
approximation of the laws of the Member States concerning telecommunica-
tions terminal equipment, including the mutual recognition of their confor-
mity, in respect of satellite earth station.
Since however a CTR has not been developed for the equipment, the
mentioned Directive cannot yet be applied and therefore an interim CEPT
conformity assessment procedure has been developed to make mutual recogni-
tion of conformity assessment possible, when the equipment complies with the
relevant essential requirements.
“The European Conference of Postal and Telecommunications Administra-
tions,
considering
a) that the LMSS terminals are using the frequncy bands 1626.5 MHz-—
1645.5 MHz, 1656.5 MHz-1660.5 MHz and 14.0 GHz—14.25 GHz (up-
link) and 1525.0 MHz-1544.0 MHz, 1555.0 MHz-—1559.0 MHz and
10.7 GHz-11.7 GHz or 12.5 GHz—12.75 GHz (downlink),
b) that it would be advantageous for CEPT Administrations to have a
common approach in harmonisation of the procedures for conformity
assessment and marking of LMSS terminals,
c) that within the EEA countries the LMSS terminals fall within the scope
of the EC Directive 91/263/EEC [1] extended by EC Directive 93/97/
EEC [2] which cover satellite earth station terminals and that these
Directives provide for the testing of compliance with the essential
requirements through a Notified Body,
d) that equipment may at the same time be subject to other regulations
outside the scope of this Recommendation (e.g. EMC, electrical safety
ecu:
e) that in the absence of CTRs within the EEA countris, the granting of
certificate of conformity is only possible against the relevant essential
requirements,
f) that CEPT administrations permit LMSS terminals to be placed on the
market provided that the equipment complies with the relevant essenial
reuiements,
D2
g) that ETSI report ETR 169, Satellite Earth Stations and Systems (SES);
Common Technical Regulations (CTRs) in the Satellite Earth Stations
equipment field has defined, except for equipment within the scope of
ETS 300 423, the essential requirements for satellite terminal equipment
(art. 4e of the Directive 91/263/EEC), see enclosed Annex I,
h) that the Satellite Earth Station terminals declared to be directly con-
nected to the public network can be required to fulfil the essential
requirements for interconnection with PSTN. For these requirements
manufacturers have to obtain supplementary certificate of conformity by
each CEPT conformity assessment authority. In this case national
marking can be required,
recommends
1) that CEPT administrations accept the certificate of conformity given by
any CEPT conformity assessment authority to equipment in confor-
mance with the requirements in the latest version of the relevant ETS or
TBR, as detailed in Annex 1, following type testing at a testing
laboratory accredited in accordance with the ISO guide 25 or EN 45001
or a National Standard conorming to ISO guide 25 or EN 45001,
2) that LMSS satellite terminal equipment shall bear a mark as speified in
Annex II to this Recmendation,
3) that, once LMSS satellite terminals have been granted certificate of
conformity by any CEPT conformity assessment authority according to
the requirements of Recommends | and 2 above, no additional con-
formity assessment information should be required by CEPT administra-
tions except to identify the equipment.
REFERENCES
(1) Council Directive 91/263/EEC: “On the approximation of the laws of the Member States
concerning telecommunications terminal equipment, including the mutual recognition of their
conformity”. (The TTE Directive).
(2) Council Directive 93/97/EEC: “Supplementing Directive 91/263/EEC in respect of Satellite
Earth Station equipment”. (The SES Directive).
ANNEX 1
Requirements for LMSS terminals
Requirement title ETS 300 254 or ETS 300 423 or ETS 300 255 or
TBR 026 TBR 044 iTBR 027 |
Unwanted emission outside band Applicable Applicable Applicable
Maximum unwanted emission in-band Applicable Applicable Applicable
bandwidth
Network control commands Applicable Applicable Applicable
Initial burst transmission Applicable f ppli

Applicable Z PP icable
Applicabl —
All requirements have to be documented in test reports issued by accredited test laboratories.
ANNEX 2
The marking for land mobile satellite service terminals, LMSS
The marking shall be placed on the terminal equipment in the following forms:
(CEPT/INMARSAT-C/LM/Y)
(CEPT/INMARSAT-D/LM/Y)
(CEPT/INMARSAT-M/LM/Y)
(CEPT/INMARSAT-phone/LM/Y)
(CEPT/EUTELSAT/ET-LM/Y)
(CEPT/EUTELSAT/AS-LM/Y)
(CEPT/EMS-PRODAT/LM/Y)
(CEPT/EMS-MSSAT/LM/Y)
Y is the symbol of the country where the equipment has been given certificate
of conformity. This symbol could be followed by the national authorisation
number and the year when the certificate of conformity was given.
ERC DECISION
OF 10 MARCH 1999
ON FREE CIRCULATION, USE AND EXEMPTION FROM INDIVIDUAL LICENSING
OF MoBILE EARTH STATIONS OF S-PCS <1 GHz sySTEMS
1. INTRODUCTION
A limited number of new satellite systems within the mobile satellite service
(MSS) have been introduced in the bands below 1 GHz, starting by the year
1998.
Other similar satellite systems are planned.
They offer services such as low bit rate data communications, messaging,
position determination and other non-voice applications for individual users,
providing global coverage.
These satellite systems are identified as ‘S-PCS below 1 GHz’ (S-PCS <1 GHz
systems).
In dealing with S-PCS < 1 GHz systems administrations have to address several
types of licensing requirements; e.g. for network operators, service providers,
gateways, and MESs. This ERC Decision covers free circulation and use, and
exemption from the requirement of individual licensing of MESs. The Decision
makes necessary references to conformity assessment, to the relevant Technical
Basis for Regulation (TBR) and appropriate marking regimes. The free
circulation and use referred to in this Decision shall mean the right of the user
to carry and use S-PCS < 1 GHz Mobile Earth Station(s) within the territory of
all administrations participating in this Decision, without requiring individual
authorisations or licences.
2. BACKGROUND
According to the Radio Regulations, the bands 137.025 MHz, 137.175-
137.825 MHz and 400.15—401 MHz (space-to-Earth), and 148-149.9 MHz,
149.9-150.05MHz, 399.9-400.05 MHz- and, 406—-406.1 MHz (Earth-to-
space), are allocated to the mobile satellite service on a primary basis and the
bands 137.025—137.175 MHz, 137.825—138 MHz and 387-390 MHz (space-to-
Earth) and 312-315 MHz (Earth-to-space) are allocated to the mobile satellite
service on a secondary basis. The bands 235-322 MHz (space-to-Earth), Earth-
to-space) and 335.4-399.9 MHz (space-to-Earth, Earth-to-space) are also
535
allocated by Footnote S5.254 to the mobile satellite service under Article

59.21.
The designation of frequencies to each S-PCS <1 GHz system is given in the
ERC Decision on the ‘harmonized introduction of satellite personal commu-
nication systems operating in the bands below 1 GHz (S-PCS < 1 GHz)’ (ERC/
DEC/(99)06)
The European administrations have been following the principle of issuing
individual licences for single radio equipment. However, during the last decade
administrations have started to exempt a number of these equipments from
requiring an individual licence. The CEPT/ERC Recommendation ERC/REC
01-07 on harmonised regimes for exemption from individual licensing of radio
equipment defines the criteria under which radio equipment should be exempt
from individual licensing.
3. GENERAL APPROACH FOR FREE CIRCULATION AND USE

AND LICENSING
Given that S-PCS<1 GHz systems are intended to offer regional or global
services, placing a requirement for individual licences for MESs would be
detrimental to the concept of free circulation and use. Therefore, this Decision
requires that S-PCS <IGHz MESs shall be exempted from individual licensing.
The implementation of the concept of free circulation and use requires
administrations to accept the use of the S-PCS<1 GHz MESs originating
from other CEPT countries without requiring any further authorisation or
licence.
The free circulation and use of MESs and their exemption from individual
licensing is predicated upon:
- the use of harmonised frequency bands by MESs or by other means in
order to avoid the potential to cause harmful interference to other
Services;
— type approval of MESs to an agreed standard and also an agreed marking
regime.
It is expected that conformity assessment of S-PCS<1 GHz mobile earth
stations will be carried out to harmonised standards, or to other specifications,
which demonstrate compliance with essential requirements.

The S-PCS<1 GHz systems will provide a global service, which greatly
facilitates the mobile communications throughout the world. Therefore there
is a need to arrange free circulation and use of S-PCS <1 GHz MESs without
requiring individual licences or other radio regulatory formalities. This
Decision has been prepared to facilitate these goals.
CEPT/ERC/DEG/(99)05 537
ERC DECISION
OF 10 MARCH 1999
OF MOBILE EARTH STATIONS OF S-PCS <1 GHz SYSTEMS
tions,
considering:
a) that the frequency bands 137-137.025 MHz, 137.175-137.825 MHz and
400.15-401 MHz (space-to-Earth), and 148-149.9 MHz, 149.9-150.05
MHz, 399.9-400.05 MHz and 406-406.1 MHz (Earth-to-space), are
allocated to the mobile satellite service on a primary basis and that the
bands 1 37.025-137.175 MHz 137.825-138 MHz and 387-390 MHz
(space-to-Earth) and 312-315 MHz (Earth-to-space) are allocated to
mobile satellite service on a secondary basis;
b) that the frequency bands 235-322 MHz and 335.4-399.9 MHz are also
allocated by the Radio Regulations No. $5.254 to the mobile satellite
service;
c) that the use of the frequency bands mentioned in considering b) above is
subject to co-ordination under Art. $9.21;
d) that ERC Report 25 identifies the band 225-399.9 MHz as harmonised
military band;
e) that the use of the frequency 243 MHz is subject to the RR No. $5.256;
f) that the use of the frequency band 406-406.1 MHz by the mobile satellite
service is limited to low power satellite emergency position-indicating
radio beacons;
g) that a number of S-PCS<1 GHz systems providing both global and
regional coverage are to be brought into operation in the bands men-
tioned in considering (a) above;
h) that the spectrum for S-PCS < 1 GHz systems will be harmonised via the
ERC Decision on the Harmonised Introduction of Satellite Personal
Communication Services (S-PCS) operating in the frequency bands
below | GHz (ERC/DEC(99)06);
i) that S-PCS <1 GHz systems will be assessed in accordance with the
technical criteria and due diligence milestones given in ERC/DEC/
(99)06;
j) that the bringing into operation of S-PCS <1 GHz systems in the bands
mentioned in considering (a) and (b) above is subject to satisfactory
progress of frequency co-ordination in accordance with the procedures
established by the ITU Radio Regulations;
k) that the use of S-PCS<1 GHz MESs could cause interference to other
services;
1) that it is desirable for administrations to implement a harmonised
licensing regime for S-PCS <1 GHz MESs within the CEPT;
m) that the exemption of MESs from requiring an individual licence

provides for the concept of free circulation and use which means the
right to carry and use an S-PCS<1 GHz MESs without any further
authorisation;
n) that the harmonisation of authorisation conditions and co-ordination of
procedures relating to S-PCS <IGHz are given in the ECTRA Decision
on harmonisation of authorisation conditions and co-ordination of
procedures in the field of SPCS<1 GHz in Europe (CEPT/ECTRA/
DEC(99)02);
that within the EEA the conformity assessment of S-PCS < 1 GHz MESs
will be carried out to the relevant harmonised standards, or to other
specifications, which demonstrate compliance with essential require-
ments.
recognising:
that this Decision shall not impede EEA member countries from fulfilling their
obligations according to community law;
DECIDES
Ee that administrations shall not require individual licences for the use of
MESs of S-PCS <IGHz systems, provided that:
— the satellite system ensures that the MESs operate within the
frequency bands and under technical and operational constraints,
needed to avoid harmful interference to other services, identified in
Annex 2 of ERC/DEC/(99)06;
— the provision of service offered by S-PCS <1 GHz systems, within
which the MES operates, has been authorised in accordance with
national regulations, where applicable and the ECTRA Decision
ECTRA/DEC(99)02;
the MES fulfils the requirements of the country where it is used and is
marked accordingly;
that administrations which have implemented this Decision shall allow
the free circulation and use of all MESs provided that the MESs fulfil the
requirements in decides 2.
that free circulation without permission to use for all MESs not fulfilling
the requirements in decides 2, should be allowed by each administration
when the MES is prohibited from operating by the S-PCS<1 GHz
network operator whilst it is located within the territory of the adminis-
tration;
that this Decision shall be reconsidered each time the ERC Decision on
the Harmonised Introduction of S-PCS <1 GHz ERC/DEC/(99)06 or
the ECTRA Decision on harmonisation of authorisation conditions and
co-ordination of procedures in the field of S-PCS<lGHz in Europe
ECTRA/DEC(99)02 is revised;
6. that this Decision shall enter into force on 15 March 1999.

OF MOBILE EARTH STATIONS OF S-PCS <1 GHZ SYSTEMS
As of 31 May 1999 the following CEPT Members have committed themselves

Croatia
Czech Republic
Italy
Sweden
United Kingdom
ERC DECISION
OF 10 MARCH 1999
ON THE HARMONISED INTRODUCTION OF SATELLITE PERSONAL
COMMUNICATION SYSTEMS OPERATING IN THE BANDS BELOW I GHZ
(S-PCS <1 GHz)
1. INTRODUCTION
A limited number of new satellite systems within the mobile satellite service
(MSS) have been introduced in the bands below | GHz, starting by the year
1998.
Other similar satellite systems are planned.
They offer services such as low bit rate data communications, messaging,
position determination and other non voice applications for individual users,
providing global coverage.
These satellite systems are identified as “S-PCS below 1 GHz” (S-PCS < 1 GHz
systems).
2. BACKGROUND
According to the Radio Regulations, the bands 137—137.025 MHz, 137.175-—
137.825 MHz and 400.15—-401 MHz (space-to-Earth), and 148-149.9 MHz,
149.9-150.05 MHz, 399.9-400.05 MHz and 406—406.1 MHz (Earth-to-space),
are allocated to the mobile satellite service on a primary basis and the bands
137.025—-137.175 MHz, 137.825—-138 MHz and 387-390 MHz (space-to-Earth)
and 312-315 MHz (Earth-to-space) are allocated to the mobile satellite service
on a secondary basis. The bands 235-322 MHz (space-to-Earth, Earth-to-
space) and 335.4-399.9 MHz (space-to-Earth, Earth-to-space) are also allo-
cated by Footnote $5.254 to the mobile satellite service under Article $9.21.
At present, some S-PCS < | GHz systems are already in operation and plan to
start full commercial service in the very near future, other S-PCS<1 GHz
systems, some of which may be operated in the same bands, are at various
stages of design and implementation.
540
3. REQUIREMENTS FOR AN ERC DECISION

The ERC recognises that a procedure for a harmonised introduction of S-
PCS <1 GHz systems will be of benefit to the operators as well as the users of
these mobile earth stations (MESs). A commitment by CEPT members to
implement the ERC Decision as described in this document will provide a clear
indication that S-PCS <1 GHz systems will be introduced in CEPT countries
in a harmonised manner.
4. SCOPE OF THE ERC DECISION

The conditions for introduction of S-PCS<1 GHz systems need to be
harmonised in Europe to ensure maximum spectrum efficiency, maximum
protection for terrestrial services as provided by the Radio Regulations and
maximum competition.
This ERC Decision provides a procedure for the harmonised introduction of S-

PCS < 1 GHz systems within CEPT countries, including principles and criteria
for the identification of spectrum to be used by the MESs, as well as technical
and operational constraints for each S-PCS < 1 GHz system to be introduced.
The aim of this Decision is to provide a common approach for CEPT

Administrations and a procedure, based on a case-by-case analysis:
— to identify the bands below 1 GHz for the Mobile Earth Stations (MESs)
of individual S-PCS < 1 GHz systems;
~ to establish technical and operational constraints, related to the specific
type of S-PCS < 1 GHz system, for the use of frequencies by the MESs, in
order to ensure the compatibility with terrestrial services and among S-
PCS < 1 GHz systems;
- to enhance the possibility of competition among different systems and
technologies, indicating criteria for competitive entry for future S-
PCS <1 GHz systems to be brought into operation in the same bands of
S-PCS < 1 GHz systems already in operation or in different bands, giving
due consideration to the technical sharing issues and spectrum avail-
ability and to the principle of “first come first served”;
— to adopt a due diligence procedure through a “milestone evaluation
process” in order to remove “paper satellites”.
This Decision includes three Annexes:

Annex 1: List of candidate systems; i.e. systems notified to the ITU and of
interest of at least one CEPT Country;
Annex 2: List of systems which satisfy all the conditions of the Decision with
regard to compatibility, have made the successful launch and in orbit deploy-
ment of the first satellite, and are therefore to be considered by CEPT
Administrations for introduction. Systems may be added to this list in
accordance with the Decision.
Annex 3: Milestones for due diligence criteria.

This Decision places the evaluation of milestones compliance under the
competence of ERC, on the basis of declarations by Administrations. Never-
theless, should the CEPT adopt provisions to include S-PCS<1 GHz in the
mandate of the Milestones Review Committee for S-PCS above 1 GHz or
decide to put the evaluation of milestones compliance for S-PCS<1 GHz
systems under the responsibility of a specific competent body, this Decision
takes into account those possibilities and no revisions are needed.
In order to establish a level playing field for open competition, no priority
order is recognised among systems meeting all the conditions to entry Annex 2
and all the milestones at different points in time but before 1 January 2002.
By that date, this Decision shall be reviewed by the ERC, in the light of the
progress made by systems toward implementation and the requests for
spectrum appearing in Annex 1, with a view to making adjustments, as
necessary.
The Annexes to this Decision may be reviewed by the ERC upon requests from
Administrations willing either to introduce new S-PCS <1 GHz systems or to
amend the existing entries for S-PCS < 1 GHz systems.
This ERC Decision does not relate to the adoption of MES technical standards
or to the free circulation and use of MESs.
5. THE ADOPTION OF THE DECISION

Administrations which have committed to implement this Decision are
expected to consider introduction of S-PCS<1 GHz systems and the author-
isation of the use of the frequencies in their territory for the MESs of such
systems following the procedure and under the conditions identified by this
Decision.
Administrations which have committed to implement this Decision must
communicate the national measures used to implement the Decision to the
ERC Chairman and the ERO when it is nationally implemented.
ERC DECISION
OF 10 MARCH 1999
COMMUNICATION SYSTEMS OPERATING IN THE BANDS BELOW I GHz
(S-PCS <1 GHz)
The European Conference of Postal and Telecommunication Administrations,

considering:
a) that the frequency bands 137-137.025 MHz, 137.175-137.825 MHz and
400.15-401 MHz (space-to-Earth), and 148-149.9 MHz, 149.9-150.05
MHz, 399.9-400.05 MHz and 406-406.1 MHz (Earth-to-space) are
allocated to the mobile satellite service on a primary basis and that the
bands 137.025—-137.175 MHz, 137.825-138 MHz and 387-390 MHz
(space-to-Earth) and 312-315 MHz (Earth-to-space ) are allocated to
the mobile satellite service on a secondary basis;
b) that the use of the frequency bands mentioned in considering a) above
(except the band 406-406.1 MHz) is subject to coordination under
Resolution 46 (Rev. WRC-97)/S9.11A;
that the frequency bands 235-322 MHz and 335.4-399.9 MHz are also
allocated by the Radio Regulations No.S5.254 to the mobile satellite
service;
that the use of the frequency bands mentioned in considering c) above is
subject to coordination under Art.S9.21;
that ERC Report 25 identifies the band 225—399.9 MHz as harmonised
military band;
that the use of the frequency 243 MHz is subject to the RR No. S.5.256;
that the use of the frequency band 406—406.1 MHz by the mobile satellite
service is limited to low power satellite emergency position-indicating
radiobeacons;
that the use of the frequency band 137-138 MHz is subject to the
provisions of the RR No. S5.206 (different category of service);
that the use of the frequency band 148-149.9 MHz is subject to the
provisions of the RR No. S5.219;
J) that the RR No. S5.221 requires that stations of the mobile satellite
service in the band 148-149.9 MHz shall not cause harmful interference
to or claim protection from stations of the fixed or mobile services in the
countries listed therein;
k) that the RR No. S5.208A requires that in making assignments to space
stations in the mobile satellite service in the bands 137-138 MHz, 387—
390 MHz and 400.15-401 MHz, Administrations shall take all practic-
able steps to protect the radio astronomy service in the bands 150.05—153
MHz, 322—328.6 MHz, 406.1-410 MHz and 608-614 MHz from harmful
interference from unwanted emissions;
I) that the use of the frequency bands 149.9-150.05 MHz and 399.9-400.05
MHz is subject to the provisions of R.R. Nos. S5.220, $5.224A and
S5.224B;
m) that the use of the frequency bands 137-138 MHz, 148-150.05 MHz,
399.9-400.05 MHz and 400.15—401 MHz by the mobile satellite service is
limited to non-geostationary satellite systems;
recognising:
a) that some mobile satellite systems providing low bit rate data commu-
nication with global coverage, identified as S-PCS <1 GHz systems, are
currently capable of providing commercial service within the CEPT
countries;
b) that the bands below 1 GHz are extensively used by many services,
although the extent to which they are used varies throughout CEPT
countries;
Cc) that future S-PCS < 1 GHz systems should not inhibit the introduction in
CEPT countries of S-PCS < 1 GHz systems which are able to commence
commercial service at an earlier date;
d) that the use of frequencies by the mobile earth stations (MESs) should be
subject to compliance with certain technical constraints, related to the
specific S-PCS < 1 GHz system, in order to ensure the compatibility with
terrestrial services and other S-PCS< 1 GHz systems;
e) that there is a need to make provisions for competitive entry for future S-
PCS <1 GHz systems that may be brought into operation in the same
bands as S-PCS<1 GHz systems already in operation or in different
bands, giving due consideration to spectrum availability and technical
sharing issues;
the establishment of milestone criteria will allow the monitoring and
evaluation of the progress of a satellite system towards the offering of
service, so that only authenticated spectrum requirements will be
considered;
g) that some Administrations have already established due diligence proce-
dures to reduce the possibility of paper satellites;
noting:
(a) that the free circulation and licensing of MESs is subject to ERC Decision
ERC/DEC(99)05;
DECIDES
I, that for the purpose of this Decision ‘S-PCS < 1 GHz system’ shall mean
non-voice non-geostationary MSS system operating in the bands below 1
GHz, subject to the conditions specified in the Radio Regulations;
that S-PCS <1 GHz systems to be operated within CEPT countries shall
meet the milestone criteria given in Annex 3;
that S-PCS <1 GHz systems listed in Annex 1 to this Decision shall be
considered as the Candidate Systems for the introduction in CEPT
countries;
that further S-PCS <1 GHz systems may be added to the list in Annex 1
upon the request of at least one CEPT Administration, on the condition
that this Administration declares compliance of that system with mile-
stone | of Annex 3;
that an S-PCS <1 GHz system listed in Annex 1| shall be added to the list
in Annex 2 (List of systems to be considered for introduction in CEPT
countries) upon request of at least one CEPT Administration on condi-
tion that:
a) this S-PCS <1 GHz system has met milestones 1 to 6 in Annex 3,
and
b) all necessary inter-service and intra-service compatibility studies
for this S-PCS<1 GHz system have been successfully completed
and agreed by the ERC, and
c) the required operational constraints in CEPT countries based on
the results of studies referred to in decides 5b) have been approved
by the ERC;
that CEPT Administrations shall consider allowing the frequency usage,
on a provisional basis until | January 2002 , for the operation of MESs of
those S-PCS < 1 GHz systems listed in Annex 2 subject at least to all the
relevant operational constraints listed therein;
that, unless a specific competent body is established within CEPT, the
ERC shall examine, on the basis of declarations by Administrations,
whether the milestone criteria are met for the satellite systems applying
for spectrum in the bands covered by this Decision;
that S-PCS <1 GHz systems introduced into the list in Annex 2 shall be
required to make every reasonable effort, giving due consideration to
service provision capability, to allow other S-PCS < | GHz systems to use
the same bands;
that an S-PCS<1 GHz system meeting all the milestone criteria in
accordance with Annex 3 and has successfully completed all necessary
compatibility studies before | January 2002 shall not have priority with
regard to the access to the available spectrum over another S-PCS< 1
GHz system meeting the same criteria later but also before 1 January
2002 ;
10. that CEPT Administrations in conducting frequency coordination shall
take into account the decides above;
Ue that this Decision shall be reviewed by 1 January 2002 by the ERC, in the
light of the progress in the introduction of S-PCS <1 GHz systems and
with regard to the compatibility studies and milestone criteria contained
in Annex 3;
IZ. that this Decision shall enter into force on 15 March 1999;
13: that CEPT Member Administrations shall communicate the national
ANNEX 1
List of candidate S-PCS < 1 GHz systems
aii e: i Year of expected commercial|

System name ITU name Candidate bands‘ ‘°™) service introduction
ORBCOMM | LEOTELCOM-1 |UP-link: 148.0-150.05 MHz 1998

Down-link: 137-138 MHz
MLMS Up-link: 387.250-388.750 MHz 1998
Down-link: 400.225-400.975 MHz
Up-iink: 399.9-400.05 MHz 1998

SAFIR SAFIR
Down-link: 400.6-400.9 MHz
Up-link: 148.0-149.9 MHz expected

E-SAT LEOTELCOM-2
2001
Down-link: 137-138 MHz
.
NOTE: The candidate bands are to be intended as design frequency limits. The designated operating band within CEPT for
each system is indicated in Annex 2
ANNEX 2
List of systems to be considered for introduction in CEPT countries
SYSTEM NAME : LEOTELCOM-1 paar ey

OPERATIONAL CONSTRAINTS
[Downlink designated bands [SSM

FDMA !
Modulation method Narrow band Frequency or Phase modulation
Maximum MESs e.i.r.p. spectral density 10 dBW/4kHz
Technique to avoid causing interference Dynamic channel avoidance assignment system (DCAAS as
from MESs described in Annex 2 of ITU-R Recommendation M.1039) such
that mobile earth stations avoid transmitting on the same frequency
being actively used by terrestrial fixed or mobile stations
Maximum burst duration for MESs 500 msec
Not greater than 1% in any 15 minute period for any single

channel
Not greater than 1% in any 15 second period for any single
bursts channel
All MES traffic with the exception of the | Consecutive transmissions from a single earth station on the same
ANNEX 3
Milestones for the introduction of S-PCS below 1 GHz
The milestones to be applied are listed below.

MILESTONES
ie Submission of ITU Advance Publication and Co-ordination Documents
The satellite network operator should provide clear evidence that the adminis-
tration responsible for an S-PCS<1 GHz system has submitted ITU RR
Appendix 4 ‘Advance Publication Information to Be Furnished for a Satellite
Network’ and ITU RR Appendix S4 ‘Notices Relating to Space Radio-
communications and Radio Astronomy Stations’.
2. Satellite manufacturing

agreement for the manufacture of its satellites. The document should identify
the construction milestones leading to the completion of manufacture of
satellites required for the commercial service provision. The document should
be signed by the satellite network operator and the satellite manufacturing
company and should be available for inspection by the competent CEPT body.
If they are the same, a commitment should also be provided by the satellite
network operator.
3. | Completion of the Critical Design Review

process at which the design and development phase ends and the manufactur-
ing phase starts.
The satellite network operator should provide clear evidence of the completion
of the Critical Design Review in accordance with the construction milestones
indicated in the satellite manufacturing. The declaration, signed by the satellite
manufacturing company and indicating the date of the completion of the
Critical Design Review, should be available for inspection by the competent
CEPT body.
4. Satellite launch agreement

agreement to launch the minimum number of satellites required to provide
service within the CEPT. The document should identify the launch dates and
launch services and the indemnity contract. The document should be signed by
the satellite network operator and the satellite launching companies and should
be available for inspection by the competent CEPT body.
5. Gateway earth stations

agreement for the construction and installation of gateway Earth stations that
will be used to provide commercial service. This document should be available
for inspection by the competent CEPT body.
6. Launch of satellites
a) The satellite network operator should make available for inspection by
the competent CEPT body documents confirming the first successful
satellite launch and in-orbit deployment.
b) The satellite network operator should also provide periodic evidence of
subsequent launches and successful in-orbit deployment of satellites in
the constellation.
7. Frequency coordination
The satellite network operator should submit to the competent CEPT body
documents relating to the successful frequency coordination of the system
pursuant to the relevant provisions of the Radio Regulations. However, a
system which demonstrates compliance with milestones | to 6 inclusive is not
obliged to demonstrate at this stage completion of successful frequency
coordination with those S-PCS<1 GHz systems which fail to comply ade-
quately and reasonably with milestones | to 6 inclusive.
8. Provision of satellite service within CEPT
The satellite network operator shall notify the competent CEPT body that it
has launched, and has available for the provision of service, the number of
satellites it previously identified under milestone 4 as necessary to provide
commercial service, and that it shall be providing commercial service within
the CEPT on the basis of the operational constraints relevant to that system in
Annex 2.

COMMUNICATION SYSTEMS OPERATING IN THE BANDS BELOW I GHz
(S-PCS <1 GHz)
As of 31 May 1999 the following CEPT Members have committed themselves

Croatia
Italy
Sweden
Turkey
United Kingdom
ERC DECISION
OF 29 NOVEMBER 1999
ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT-B TERMINALS
tions,
considering:
that there is a strong desire within the CEPT Administrations to improve
gradually;
noting
a) that Inmarsat-B terminals for land mobile applications operate under the
control of the satellite system providing voice and data communications
on the frequency bands 1525-1559 MHz (space-to-Earth) and 1626.5—
1660.5 MHz (Earth-to-space), excluding the bands 1544-1545 MHz and
1645.5-1646.5 MHz;
b) that Inmarsat-B terminals for land mobile applications complying with
550
DECIDES
1. to exempt Inmarsat-B terminals for land mobile applications that fulfil
2. that this Decision shall enter into force on 31 January 2000;
3. that CEPT member Administrations shall communicate the national

ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT-B TERMINALS

Czech Republic
Denmark
Finland
The Netherlands
United Kingdom
note:
Please check the ERO web site <http//:www.ero.dk> for the up to date
position on the implementation of this and other ERC Decisions.
ERC DECISION
OF 29 NOVEMBER 1999
ON FREE CIRCULATION AND USE OF INMARSAT-B TERMINALS IN
CEPT MEMBER COUNTRIES ENLARGING THE FIELD OF
APPLICATION OF ERC/DEC/(95)o1

tions,
considering:

b) that Inmarsat-B terminals also fulfil the conditions for free circulation
1559 MHz (space-to-Earth) and 1626.5-1660.5 MHz (Earth-to-space)
(Earth-to-space) and to the radio astronomy service on a primary basis
whereas No. S5.376A of the Radio Regulations specifies that mobile
earth stations in the band 1660—-1660.5 MHz shall not cause harmful
DECIDES
ie that CEPT administrations shall allow the free circulation and use of
Inmarsat-B terminals under the same conditions, in the same form and
that this Decision shall enter into force on 31 January 2000;
that CEPT administrations shall communicate the national measures
implementing this Decision to the ERC Chairman and the ERO when
the Decision is nationally implemented.
S52

ON FREE CIRCULATION AND USE OF INMARSAT-B TERMINALS
IN CEPT MEMBER COUNTRIES ENLARGING THE FIELD OF
APPLICATION OF ERC/DEC/(95)o1
(CEPT/ERC/DEC/(99) 19)

Czech Republic
Denmark
Finland
The Netherlands
United Kingdom
note:
Please check the ERO web site (http//:www.ero.dk) for the up to date position
on the implementation of this and other ERC Decisions.
ERC DECISION
OF 29 NOVEMBER 1999
ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT-M4 TERMINALS

tions,
considering:

gradually;
noting:
a) that Inmarsat-M4 terminals for land mobile applications operate under

the control of the satellite system providing voice and data communica-
tions on the frequency bands 1525-1559 MHz (space-to-Earth) and
1626.5—1660.5 MHz (Earth-to-space ), excluding the bands 1544-1545
MHz and 1645.5—1646.5 MHz;
b) that Inmarsat-M4 terminals for land mobile applications complying with
554
DECIDES
1. to exempt Inmarsat-M4 terminals for land mobile applications that fulfil
2. that this Decision shall enter into force on 31 January 2000 at the latest;
3. that CEPT member Administrations shall communicate the national

ON EXEMPTION FROM INDIVIDUAL LICENSING OF INMARSAT-M4 TERMINALS

Czech Republic
Denmark
Finland
The Netherlands
United Kingdom
note:
ERC DECISION
OF 29 NOVEMBER 1999
ON FREE CIRCULATION AND USE OF INMARSAT-M4 TERMINALS
IN CEPT MEMBER COUNTRIES
ENLARGING THE FIELD OF APPLICATION OF ERC/DEC/(95)o1

tions,
considering:

b) that Inmarsat-M4 terminals also fulfil the conditions for free circulation
1559 MHz (space-to-Earth) and 1626.5-1660.5 MHz (Earth-to-space)
(Earth-to-space) and to the radio astronomy service on a primary basis
whereas No. S5.376A of the Radio Regulations specifies that mobile
DECIDES
iss that CEPT administrations shall allow the free circulation and use of
Inmarsat-M4 terminals under the same conditions, in the same form and
that CEPT member administrations shall communicate the national
556

ON FREE CIRCULATION AND USE OF
INMARSAT-M4 TERMINALS IN CEPT MEMBER COUNTRIES
ENLARGING THE FIELD OF APPLICATION OF ERC/DEC/(95)o1
(CEPT/ERC/DEC/(69)2T)

Czech Republic
Denmark
Finland
The Netherlands
United Kingdom
note:
ERC DECISION
OF 29 NOVEMBER 1999
ON THE ESTABLISHMENT OF A REGULATORY DATABASE OF LICENSING REGIMES
FOR TELECOMMUNICATION NETWORKS AND SERVICES
tions,
considering:
a) that licensing regimes differ from country to country;
b) that it can be time-consuming for applicants to get all the necessary
licensing information separately from each, individual administration;
c) that itis useful to have access to this information from a central database;
d) that ETO has been mandated by ECTRA and ERC to establish and
maintain databases and make the information publicly available;
e) that it is necessary for the administrations to provide the appropriate
f) that CEPT has been mandated by the European Commission to
investigate the desirability, added value and possible modalities for
establishing of a One-Stop-Shopping procedure for the operation of
telecommunications networks and services;
g) that ECTRA and ERC have concluded that a regulatory database of
licensing regimes for telecommunication networks and services is feasible
and should be implemented in order to support applicants seeking
authorisation in more than one country.
taking into account
a) ERC Decision of 21 March 1997 on the publication of national tables of
frequency allocations (ERC/DEC(97)01);
b) ERC Decision of 30 June 1997/ECTRA Decision of 12 March 1997 on
the provision of information for a database of licensing requirements for
VSAT/SNG (ERC/DEC(97)09 and ECTRA/DEC(97)01);
c) the ‘Arrangement for a One-Stop-Shopping procedure for licences and
other national authorisations for telecommunications services pursuant
to the Memorandum of Understanding establishing the European Tele-
communications Office’;
DECIDES
iS that administrations shall provide the information detailed in Annex 1 in
the English language and, if they wish, in other languages, to ETO,
whenever this information is available according to national legislation;
that the administrations provide up-dated information whenever sub-
558

ANNEX 1
Framework for a regulatory database of licensing regimes for
telecommunication networks and services
The date of the last update of the information

If. General principles and description of the legal basis of the authorisation/
licensing system in the country, relevant laws, policy documents etc.
Ill. Definitions of relevant licensing regimes
1) National definitions of license categories, systems, networks and
services.
(The following information should be supplied per category as defined in under IIT,
I)
IV. National authorisation systems
2) Licensing regime including conformity assessment requirements,
frequency assignment procedures etc.
3) Frequency information relevant for each license category (avail-
ability, restrictions etc).
Preconditions which have to be fulfilled by the entity willing to provide
the service in the country in order to be allowed to apply for an
authorisation:
4) Ownership restrictions (e.g. foreign ownership restrictions, restric-
tions for operators who already run other networks or provide
mobile services, etc.).
5) Conditions concerning reciprocal access to applicants’ domestic
markets.
6) Conditions in terms of the applicant’s financial capability.
7) Individual requirements such as managerial and technical compe-
tence of the applicant and/or his staff.
8) Requirement for structural separation of entities with a dominant
position/significant market power in other markets.
9) Presence of a legally registered representative in the country where
the service/infrastructure will be provided.
10) other preconditions e.g. due diligence requirements, fulfilment of
milestones set by a CEPT Milestone Review Process if appropriate.
CEPT/ERC/DEC/(99)22) 560
VI. Authorisation procedures

11) Body to contact for further information/ body responsible for every
license component (e.g. service, frequency, infrastructure).
12) List of information which has to be given to the NRA by the
applicant in order to obtain the authorisation, including evidence
that the preconditions are met and including the form in which it
should be provided (language, copies etc).
13) Other information/documentation which has to be given to the
NRA by the applicant in order to obtain the authorisation.
14) Time schedule for the processing of applications (where applicable)
by category.
15) Reasons why the NRA can refuse authorisation or permission to
provide services/infrastructure.
16) Description of the appeal procedures in case of the refusal men-
tioned above.
VII. Rights and obligations which may be attached to an authorisation
17) List of rights and obligation for the licensee (e.g. interconnection,
rights of way, premium rate service, numbering, data protection).
18) List of information required by the NRAs from operators and
service providers to fulfil reporting duties in order to verify
compliance with the licensing conditions listed above and a descrip-
tion of how operators and service providers have to provide this
information.
19) Description of the Universal Service Obligation (USO), appoint-
ment of the USO provider and Universal service contribution.
20) Specific obligations imposed on operators with significant market
power.
21) Duration of the authorisation.
22) Renewal conditions and conditions to change the authorisation.
23) Fees (initial and periodically, where appropriate).
24) Right to and restrictions on the transfer of authorisations by a
licensee.
VIII. Sanctions and appeal
25) Description of complaint procedures and appeal procedures and
addresses of appeal bodies.
26) Cases in which the NRA can impose sanctions on operators and
service providers and list of these sanctions.
27) Cases in which the NRA can withdraw permission to provide the
service/operate the network.
IX. Other important information
note:
ERC DECISION
OF 29 NOVEMBER 1999
ON EXEMPTION FROM INDIVIDUAL LICENSING OF
RECEIVE ONLY EARTH STATIONS (ROES)

tions,
considering:

b) _ that it therefore would be desirable for CEPT Administrations to have
gradually;
noting:
a) that Receive Only Earth Stations (ROES) operate within the bands 3.4—
4.2 GHz, 10.7-12.75 GHz and 17.7—20.2 GHz.
DECIDES
1. to exempt ROES that fulfil noting a) from individual licensing;
2. that this Decision shall enter into force on 31 January 2000;
561

ON EXEMPTION FROM INDIVIDUAL LICENSING OF RECEIVE ONLY
EARTH STATIONS (ROES)

Czech Republic
Denmark
Finland
The Netherlands
United Kingdom
note:
1.2.2. European Committee for Telecommunications
Regulatory Affairs (E.C.T.R.A)
CEPT/ECTRA DECISION OF 12 MARCH 1997 ON THE PROVISION OF

INFORMATION FOR A DATABASE OF LICENSING REQUIREMENTS FOR
VSAT/SNG
As Chairman of the European Committee for Telecommunications Regulatory

Affairs (ECTRA) I hereby confirm that this decision was approved in London
on 12 March 1997 at the XXIInd ECTRA Plenary Meeting.
A call for commitment was launched on 26 March 1997. The call was followed
by a first publication, dated 12 May 1997, of this decision, which listed the
CEPT member countries that committed themselves, within two months of the
approval of this decision, to implement its terms.
As of 23 October 1997, I have received commitments in writing from the
following CEPT member countries to implement the terms of this decision:
Belgium, Denmark, France, Germany, the Netherlands, Norway, Portugal,
Spain, Sweden and the United Kingdom.
This second publication is made after the XXIIIrd ECTRA Plenary Meeting
held in Podebrady (02—03.07.1997) and occurs within six months of the first
publication.
CEPT members not appearing on this second publication can commit
themselves anytime to implement the terms to this decision.
The ECTRA Secretary will keep an updated list of CEPT member countries
who sent their written comment to implement the terms of this decision.
Frédéric Riehl, ECTRA Chairman, 23.10.1997

tions,
considering
a) that the licensing regimes differ from country to country;
b) that it could be time-consuming for the future applicants to get the
necessary information from each individual administration;
c) that it is useful to have access to this information from a central database;
d) that ETO has been mandated by ECTRA and ERC to establish and
maintain a database and to make its information publicly available;
563
e) that it is necessary that the administrations provide the appropriate

decides
1. that administrations shall provide the information detailed in annex | to
ETO;
WwW that this decision shall enter into force on 12.03.1997
4. that CEPT Member administrations shall report their commitment to the
ECTRA Chairman and ETO when the Decision is nationally implemen-
ted.
ANNEX 1
Framework for a database on VSAT and SNG
1 — Background / General information

2 — Description of services or systems
Description of VSAT:
Description of SNG:
3 — Licensing regime for each service and system
VSAT: individual licence, registration / notification, class licence, free regime

SNG: individual licence, registration / notification, class licence, free regime
4 — Time-schedule for the processing of requests for authorisations
VSAT:
SNG:
5 — Scope of the licence
VSAT (voice, data, to third parties, etc.)

SNG:(same)
6 — Organisations issuing the licence(s)

VSAT:
SNG:
7 — Information required in the application form

VSAT:
SNG:
CEPT/ECTRA/DEC(97)01 565
8 — Duration of licence
VSAT:
SNG:
9 — Renewal conditions
VSAT:
SNG:
10 — Fees
VSAT:
SNG:
11 — Rights and obligations of the licensee
VSAT:
SNG:
12 — Cases of rejection of a request for authorisation
VSAT:
SNG:
13 — Procedures when appealing
VSAT:
SNG:
14 — Sanctions and penalties

VSAT:
SNG:
15 — Revocations and changes of licenses
VSAT:
SNG:
16 — Data protection rules

VSAT:
SNG:
17 — “Essential requirements”
VSAT:
SNG:
18 — Resolution of disputes
VSAT:
SNG:
19 — National laws and regulations (titles of acts, decrees, etc.)

VSAT:
SNG:
20 — National application form (titles and references)

VSAT:
SNG:
21 — Transfer of licences
VSAT:
SNG:
CEPT — EUROPEAN CONFERENCE OF POSTAL AND TELECOMMUNICATIONS
ADMINISTRATIONS
ECTRA — EUROPEAN COMMITTEE FOR TELECOMMUNICATIONS REGULATORY
AFFAIRS
CEPT/ECTRA DECISION OF 03 JULY 1997

ON HARMONISATION OF AUTHORISATION CONDITIONS AND CO-ORDINATION OF
PROCEDURES IN THE FIELD OF SATELLITE PERSONAL COMMUNICATIONS
SERVICES (S-PCS) IN EUROPE, OPERATING WITHIN THE BANDS 1610-1626.5
MHZ, 2483.5—2500 MHz, 1980-2010 MHz AND 2170-2200 MHz
(CEPT/ECTRA/DEC(97)02)

Affairs (ECTRA), I hereby confirm that this decision was adopted on 3 July
1997 at the XXIIIrd ECTRA Plenary Meeting.
A call for committment was launched on 17 July 1997 and, as of 23 October

1997, I have received commitments in writing from the following CEPT
member countries to implement the terms of this decision:
Belgium
Croatia
France
Germany
Netherlands
Norway
Spain
Sweden
Switzerland
United Kingdom
A second publication updating the list of CEPT members who have committed
themselves to implementation will occur after the XXIVth ECTRA Plenary
Meeting (03-04.12.1997), but not later than six months after this first publica-
tion.
567

ADMINISTRATIONS
AFFAIRS
CEPT/ECTRA DECISION OF 03 JULY 1997

ON HARMONISATION OF AUTHORISATION CONDITIONS AND CO-ORDINATION OF
PROCEDURES IN THE FIELD OF SATELLITE PERSONAL COMMUNICATIONS
SERVICES (S-PCS) IN EUROPE, OPERATING WITHIN THE BANDS 1610-1626.5
MHz, 2483.5-2500 MHz, 1980-2010 MHZ AND 2170-2200 MHz

tions,
CONSIDERING
1) that S-PCS systems will provide either global or regional coverage,
2) that a co-ordinated procedure for authorisations, as well as harmonised
conditions for authorisations, will benefit users, satellite network opera-
tors, service providers, manufacturers and administrations,
3) that the European Parliament and Council Decision 710/97 on a co-
Union (EU) has been adopted,
4) that the granting of authorisations is the sovereign right of states, i.e. the
responsibility of National Regulatory Authorities (NRAs), and that
NRAs may require individual licenses for such authorisations,
TAKING INTO ACCOUNT

1) the time schedule laid down in the EU Decision, see Considering 3, for
the implementation of S-PCS,
2) that during WARC-92 the frequency bands 1610—-1626.5 MHz, 2483.5—
2500 MHz, 1980-2010 MHz and 2170-2200 MHz were allocated for the
provision of mobile satellite services, within which S-PCS will be
provided,
3) that, with regard to S-PCS mobile earth stations (MESs) operating within
the bands identified, see Taking Into Account 2, the ERC has developed
Decisions including, inter alia:
i) ERC Decision, ERC/DEC(97)03, on the harmonised use of spec-
trum for satellite personal communications services (S-PCS) oper-
ating within the bands 1610—1626.5 MHz, 2483.5—2500 MHz, 1980-
2010 MHz and 2170-2200 MHz, hereafter referred to as ERCD-1.
ii) ERC Decision, ERC/DEC(97)05, on free circulation, use and
licensing of mobile earth stations of satellite personal communica-
tions services, hereafter referred to as ERCD-2.
4) that each S-PCS system identified should use harmonised frequency

assignments within Europe,
5) that, within the EU, account must be taken of Directive 97/13/EC ona
common framework for general authorisations and individual licenses in
the field of telecommunications services and Directive 91/263/EC on
terminal equipment, including the mutual recognition of their confor-
mity, modified by Directive 93/97/EC on satellite earth station equip-
ment,
DECIDES
1) that this Decision shall not prejudice the obligation of the EEA member
states to act in accordance with applicable Community law or CEPT
members to act in accordance with their national legislation,
2) that in this Decision, the term authorisation shall mean legal or
administrative measure regarding public telecommunications networks
or services to grant
- access to frequency spectrum for the use by the Mobile Earth
Stations (MESs) of S-PCS systems;
- licensing and free circulation of MESs within the CEPT;
- service provision of S-PCS;
- installation of gateway stations and interconnection to public net-
works,
3) that the granting of authorisations, if required by individual CEPT
Members, shall be assessed and decided upon, in a co-ordinated way, in
accordance with the scheme illustrated in Annex 1,
4) that the conditions that may be attached to the authorisations referred to
in Decides 2 above shall be limited to those given in Annex 2,
5) that ECTRA and ERC will, in order to assist NRAs in applying
procedures described in Annex 1, institute a Milestone Review Commit-
tee (MRC), as described in Annex 4 of this Decision as well as in Annex 3
of ERCD-1, primarily to examine whether the milestone criteria, as
defined in Annex 3, are met by the applicants,
6) that the MRC will be composed of officials from those administrations
which are signatories to this Decision or which have committed them-
selves to implement the companion ERC Decision, ERCD-1,
7) that in granting the authorisations referred to in Decides 2 above, NRAs
shall take into consideration the recommendations made by the Mile-
stone Review Committee,
8) that when granting the authorisations referred to in Decides 2 above,
NRAs must take care to satisfy Decides 5 in the companion Decision
ERCD-1, hence, adjustments in frequency assignments might take place
before | January 2001,
9) that necessary measures of legal and administrative nature, for offering
authorisations, should be implemented within a time schedule compatible
with the technical and commercial needs of SPCS which are planning to
become operational before | January 2001,
10) that the authorisation shall be granted within the time schedule compa-
tible with the technical and commercial need of S-PCS under considera-
tion,
11) that ECTRA will review this Decision at least every two years, if
necessary, taking into consideration modification of companion Deci-
sions,
12) that this Decision shall enter into force on 01.10.1997,
13) that CEPT Member Administrations shall communicate the national
measures implementing this Decision to the ECTRA Chairman and the
ETO when the Decision is nationally implemented.
ANNEX 1
S-PCS authorisation scheme
It is expected that the authorisation may be initiated in the following way:

An entity (later referred to as an ‘Applicant’), acting within the national law of
an administration, seeking authorisation within that administration or a
number of administrations, submits an application to the administration.
The consideration of authorisation of S-PCS by an administration should take
the following approach:
1) To initiate the process, as stated above, the Applicant will submit an
application to an administration. The application should include two
parts:
a) information about the applicant and its project including where
appropriate, information showing that the applicant has been duly
authorised by the relevant satellite operator, whose system is being
monitored against the milestone process described in Annex 4 of
this Decision as well as Annex 3 of ERCD-1, and including the
following items:
- The reference to the ITU Weekly Circular Special Section
for the ‘Advance Publication of Information‘ of the S-PCS
system,
- an undertaking to comply with the milestones procedure,
— a plan describing how the applicant intends to fulfil mile-
stones,
b) specific national parts including national requirements.
2) The administration will then examine the application to ensure that it
complies with the national law as well as the requirements placed by this
Decision as well as ERCD-1 and ERCD-2, if implemented. An applica-
tion failing to meet requirements set by one or more of the following; the
national law, this Decision, ERCD-1 and ERCD-2, if implemented,

should be rejected by the administration. An explanation of the rejection
should be returned to the applicant.
3) The administration will then forward the elements of the application
which it judges relevant, to the MRC, if the application is relevant with
respect to Decides 2.
4) The MRC will re-examine the application to ensure that it complies with
this Decision as well as ERCD-1 and ERCD-2. If the MRC considers
that the application fails to comply then it will advise all administrations
of this by providing a complete explanation.
The administration which submitted the application may offer comments
on the MRC findings and if necessary re-submit the application.
5) The applications considered successful at the stage 4) above will be
further considered by MRC for the compliance with the milestones. The
MRC will make further recommendations, as necessary, to the adminis-
trations on the achievement, or likely achievement, of the individual
milestones. It is expected that these recommendations would assist
administrations in determining the application submitted for authorisa-
tion and granting authorisation where necessary.
6) The administration will, as necessary and if appropriate, assess whether
to grant an authorisation taking into account the recommendations of
the MRC. In general, the authorisation may be offered at any stage in the
process.
7) The administration may reconsider existing authorisations on the basis of
failure to meet the milestone requirements, thereby taking into account
the view of the MRC.
8) | When an applicant completes all the milestones, the MRC will notify the
administration and, if necessary, the administration will confirm any
authorisations.
9) In cases where individual licenses are required, the administration which
has submitted the application to MRC shall inform applicants of their
decision no later than 4 months after receiving the application.
ANNEX 2
Conditions that may be attached to authorisations
Any conditions which are attached to authorisations are to be based on

justification and the principles of equality, transparency and proportionality.
The conditions which may be attached by EU members of CEPT should be
consistent with those which may be specified in accordance with relevant EU
legislation as transposed and implemented nationally.
1. For EU member states any conditions which are attached to authorisa-

tions must be consistent with the competition rules of the EU.
Bis Conditions which may be attached to all authorisations, where justified

2-1. Conditions intended to ensure compliance with relevant essential
requirements, as defined by EU legislation, in particular Directive
97/13 /EC
2-2. Conditions linked to the provision of information reasonably
tions and for statistical purposes
2-3. Conditions intended to prevent anti-competitive behaviour in tele-
are non-discriminatory and do not distort competition
2-4. Conditions relating to the effective and efficient use of numbering
capacity
Specific conditions which may be attached to general authorisations, see
Directive 97/13/EC for definitions, 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
— the prior approval of 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
services.
3-2. Financial contribution to the provision of universal service. For
EEA member states this must be 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. For EEA member states these must be
in accordance with the interconnection directive and obligations
under Community law.
Specific conditions which may be attached to individual licenses, see
Directive 97/13/EC for definitions, 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)
Specific conditions linked to the effective use and efficient manage-

ment of radio frequencies
4-3. Specific environmental and specific town and country planning
facility sharing
4-4, Maximum duration, which shall not be unreasonably short, in
or number or to grant access to public or private land, without
suspension of licenses
Provision of universal service obligations. For EEA member states
these must be 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 the principle of open
network provision (ONP) to voice telephony.
4-6. Conditions applied to operators having significant market power,
intended to guarantee interconnection or the control of significant
market power. For EEA member states these must be as notified
under the interconnection directive.
Conditions concerning ownership. For EU member states these
must comply with Community law and the Community’s commit-
ments vis-a-vis third countries
4-8. Requirements relating to the quality, availability and permanence of
service or network, including the financial, managerial and techni-
cal competencies of the applicant and conditions setting a minimum
period of operation and including, where appropriate, mandatory
provision of publicly available telecommunications services and
public telecommunications networks. For EEA member states these
must be in accordance with Community law.
4-9. Specific conditions relating to the provision of leased lines. For
EEA member states these must be in accordance with Council
directive 92/44/EEC of 5. June 1992 on the application of open
network provision to leased lines.
In accordance with the EU Council and Parliament Directive 97/13/EC on
Licensing which concerns Member States, the above list of conditions is
without prejudice to:
— any other legal conditions which are not specific to the telecommunica-
tions sector
— measures taken by Member states in accordance with public interest
requirements recognised by the EU Treaty, in particular Articles 36 and
56, specifically in relation to public morality, public security, including
the investigation of criminal activities, and public policy
ANNEX 3
Milestones
Milestones for the introduction of S-PCS within the bands 1610—1626.5 MHz,
2483.5—2500 MHz, 1980-2010 MHz and 2170-2200 MHz
INTRODUCTION
The milestones to be applied by the Milestone Review Committee (MRC) are
listed below.
MILESTONES
ik Submission of ITU Advance Publication and Co-ordination Documents

The satellite network operator should provide clear evidence that the adminis-
tration responsible for an S-PCS system has submitted ITU RR Appendix 4
‘Advance Publication Information to Be Furnished for a Satellite Network’ and
ITU RR Appendix 3 ‘Notices Relating to Space Radiocommunications and
Radio Astronomy Stations’.
2. Satellite manufacturing
agreement for the manufacture of its satellites. The document should identify
the construction milestones leading to the completion of manufacture of
satellites required for the commercial service provision. The document should
be signed by the satellite network operator and the satellite manufacturing
company and should be available for inspection by the MRC. If they are the
same, a commitment should also be provided by the satellite network operator.
3. Completion of the Critical Design Review

process at which the design and development phase ends and the manufactur-
ing phase starts.
The satellite network operator should provide clear evidence of the completion
of the Critical Design Review in accordance with the construction milestones
indicated in the satellite manufacturing. The declaration, signed by the satellite
manufacturing company and indicating the date of the completion of the
Critical Design Review, should be available for inspection by the MRC.
CEPT/ECTRA/DEC(97)02 S75
4. Satellite launch agreement

agreement to launch the minimum number of satellites required to provide a
continuous service within the CEPT. The document should identify the launch
dates and launch services and the indemnity contract. The document should be
signed by the satellite network operator and the satellite launching companies
and should be available for inspection by the MRC.
5. Gateway earth stations

agreement for the construction and installation of gateway Earth stations that
will be used to provide S-PCS within the CEPT. This document should be
available for inspection by the MRC.
6. Launch of satellites
(a) The satellite network operator should make available for inspection
by the MRC documents confirming the first successful satellite
launch and in-orbit deployment.
(b) The satellite network operator of an NGSO system should also
provide periodic evidence of subsequent launches and successful in-
orbit deployment of satellites in the constellation.
7. Frequency coordination
The satellite network operator should submit to the MRC documents relating
to the successful frequency coordination of the system pursuant to the relevant
provisions of the Radio Regulations. However, a system which demonstrates
compliance with milestones | to 6 inclusive is not obliged to demonstrate at
this stage completion of successful frequency coordination with those S-PCS
systems which fail to comply adequately and reasonably with milestones | to 6
inclusive.
8. Provision of satellite service within CEPT
Before 1 January 2001 the satellite network operator shall notify the MRC that
it has launched, and has available for the provision of service, the number of
satellites it previously identified under milestone 4 as necessary to provide
continuous commercial service, and that it shall be providing commercial
service within the CEPT using the frequency bands identified in the Table 2 of
Annex | to the companion Decision ERCD-1.
ANNEX 4
Milestone Review Committee
1. Terms of reference
The Milestone Review Committee (MRC) shall

Lele monitor the compliance with the milestones by applicants, in a
transparent and non-discriminatory manner, and in accordance
with the procedures established in Section 2;
1.2 seek information as necessary from the applicants, on the compli-
ance with the milestones;
Tn make recommendations to administrations, ERC and ECTRA,
upon examination of applications, on the compliance with mile-
stones by S-PCS systems, and appropriate methods of handling of
any difficulties arising, in order to assist administrations in offering
authorisations;
1.4. make any modification and inclusion of new S-PCS systems,
proposed by CEPT administrations, that are intended to be brought
into operation before 1 January 2001 and that meet the initial
criteria given in Note | to Table 2 of Annex 1 to ERCD-1, to the
list of candidate systems in Table 2 of Annex | to ERCD-1;
Lede establish a co-ordinated procedure within the CEPT, involving a
number of administrations, for the monitoring of the spectrum
utilised by S-PCS systems for the systems that have been implemen-
ted up to 1 January 2001, and make recommendations to adminis-
trations, ERC and ECTRA as necessary;
leon report on a regular basis to administrations, ERC and ECTRA on
whether scarcity of frequency spectrum is likely to represent, at
some point in time, a constraint on the number of S-PCS which can
be provided within CEPT in the relevant bands, and propose the
necessary measures to overcome any difficulties;
Seals identify, as far as possible, any additional requirements of adminis-
trations which should be met by applicants and on which further
information should be provided in the applications; this would
allow it to prepare a standard format for the application form to
be completed by applicants.
2. Working procedures
Daly Monitoring the compliance with the milestones
Annex 3 of this Decision as well as Annex 2 of ERCD-1 identifies
the milestones relating to the introduction of S-PCS systems. The
successful compliance with these milestones by the network opera-
tors concerned would allow CEPT administrations to decide on the
assignment of frequencies to mobile Earth stations of the S-PCS
systems. It would also allow administrations to make certain
CEPT/EGTRA/DEC(97)02 577
decisions on the authorisations. The monitoring of compliance shall

be carried out in accordance with the following procedure:
2.1.1. Ifa milestone or several milestones are achieved at the date
stated by the applicant (‘milestone date’), the MRC shall
inform, in a timely manner, the ERC, ECTRA and the
relevant administrations.
2.1.2. If a milestone is not achieved at the milestone date, the
MRC shall communicate with the applicant seeking an
explanation for the non-compliance within four weeks. The
MRC shall send copies of the correspondence to the Chair-
men of the ERC and ECTRA and the relevant administra-
tion.
2.1.3. When the MRC has received a response from the applicant,
it will seek information from the applicant about a new date
for this milestone and confirmation or adjustments of the
dates for the following milestones. The response and dates,
possibly revised, will be brought to the attention of relevant
administrations.
2.1.4. In the event that:
either the four-week period expires without appropriate response
from the relevant party,
or the MRC concludes that the explanation provided is not
sufficient reason for failing to achieve the milestone da-
te,then the MRC shall advise the administrations of the
treatment of the application noting that MRC advice should
lead to the establishment of a co-ordinated position with the
CEPT.
Dae) Monitoring of spectrum usage

The MRC shall establish a co-ordinated procedure within the
CEPT, involving a number of administrations, for the monitoring
of the spectrum utilised by all the satellites of S-PCS systems for the
systems that have been implemented up to | January 2001. The
MRC shall compare the spectrum utilised by the systems against
the ‘minimum band’ and ‘minimum requirements’ identified in the
Table 2 of Annex | of ERCD-1 and make recommendations to
administrations on adjustments necessary to this Table. These
adjustments may be to expand or to reduce the minimum require-
ments given in this Table. However, in making these recommenda-
tions, the MRC shall take due account of frequency compatibility
within the S-PCS systems and with other radio services.
2.3. Monitoring of availability of frequencies

Taking into account the information made available to the MRC by
the applicants and the results of the examination on compliance
with milestones and monitoring of spectrum usage, as well as any
frequency co-ordination efforts between operators, the MRC will
assess whether and when scarcity of frequency spectrum is likely to
become a problem.
3. Confidentiality
It is anticipated that the applicants seeking authorisation would offer
confidential information relating to implementation of a S-PCS system
and relating to its commercial operations either directly or indirectly to
the MRC. The confidentiality of information provided by an applicant
will be treated as such by the MRC. Pursuant to this, administrations will
take all practical steps to limit the circulation of confidential material to
those who need to see it.
ADMINISTRATIONS
AFFAIRS
ETO — EUROPEAN TELECOMMUNICATIONS OFFICE
CEPT/ECTRA DECcISION OF 3 MARCH 1999

ON HARMONISATION OF AUTHORISATION CONDITIONS IN THE FIELD OF
SATELLITE PERSONAL COMMUNICATIONS SERVICES (S-PCS) IN EUROPE,
OPERATING WITHIN THE BANDS 1525—1544/ 1545-1559 MHZ, 1626.5-1645.5/
1646.5-1660.5 MHz
(CEPT/ECTRA/DEC(99)o1)

Affairs (ECTRA), I hereby confirm that this decision was approved in Madrid
on 3 March 1999 at the XX VIIIth ECTRA Plenary Meeting and that during
the two months following the adoption of the decision I have received
commitments in writing from the following CEPT member countires to
implement the terms of this decision:
[Country A
Country B
Country C
Country D
Country E
Ct:
to be completed after written confirmation to be given by CEPT Members

within two months of the adoption of the decision, that means until
03.05.1999]
Mr Frédéric Riehl
Chairman of ECTRA
OFCOM — Federal Office for Communications
International Relations
Rue de l’Avenir 44, PO Box
CH-2501 Bienne
Phone: +41 32 327 54 54; Fax: +41 32 327 54 66

E-mail: frederic.riehl@bakom.admin.ch
ETO web-site http://www.eto.dk
S12

ADMINISTRATIONS
AFFAIRS
ETO — EuROPEAN TELECOMMUNICATIONS OFFICE
CEPT/ECTRA DECISION OF 3 MARCH 1999

OPERATING WITHIN THE BANDS 1525—-1544/ 1545-1559 MHz, 1626.5-1645.5/
1646.5-1660.5 MHz

tions,
CONSIDERING
1) that S-PCS systems will provide either global or regional coverage,
2) that harmonised conditions for authorisations, will benefit users, satellite
network operators, service providers, manufacturers and administra-
tions,
3) that the European Parliament and Council Decision 710/97/EC on a co-
4) that the granting of authorisations is the sovereign right of states, 1.e. the
TAKING INTO ACCOUNT

1) the time schedule laid down in the EU Mandate to CEPT ERC and
ECTRA for the monitoring of frequency use and harmonisation of
authorisation conditions and procedures for Satellite Personal Commu-
nications Services in the bands 1525—-1544/1545-1559 MHz, 1626.5—
1645.5/1646.5-1660.5 MHz (the 1.5/1.6 GHz band) for the implementa-
tion of S-PCS operating in that band,
2) that the frequency bands 1525—1544/1545-1559 MHz, 1626.5—1645.5/
1646.5—1660.5 MHz are allocated for the provision of mobile satellite
services, within which S-PCS will be provided,
3) that the use of radio spectrum is subject to multilateral agreement (ITU
Radio Regions 1 and 3, 1.5/1.6 GHz band Memorandum of Under-
standing (1.5/1.6 GHz band MoU)) under the provisions of the interna-
tional Radio Regulations, which are regularly reviewed,
4) that a Milestone Review Procedure has been implemented under the 1.5/
1.6 GHz-Band MoU to determine if the milestones are met by satellite

network operators (see Annex 1),
5) that, with regard to S-PCS mobile earth stations (MESs) operating within
the bands identified in Taking Into Account 2) above, ERC has adopted
Decisions concerning the free circulation and use of certain terminals,
6) that, within the EEA, Directive 97/13/EC on a common framework for
general authorisations and individual licenses in the field of telecommu-
nications services, as well a Directive 98/13/EC relating to telecommu-
nications terminal equipment and satellite earth stations equipment
including the mutual recognition of their conformity have been adopted
DECIDES
2) that in this Decision, the term authorisation shall cover any legal or
administrative measures regarding telecommunications networks or
services or terminals for S-PCS at 1.5/1.6 GHz,
3) that when granting the authorisations referred to in Decides 2 above,
NRAs take into account the agreements reached in the 1.5/1.6 GHz band
MoU with regard to frequency assignments for systems that have
complied with the milestones specified by the 1.5/1.6 GHz band MoU
(see Annex 2),
in Decides 2 above shall be in accordance with Directive 97/13/EC,
which does not refer to terminals,
5) that necessary measures of legal and administrative nature and the
authorisation shall be granted within the time schedule compatible with
the technical and commercial need of S-PCS under consideration,
necessary,
7) that this Decision shall enter into force on 1 May 1999,
ANNEX 1
Milestones specified in Annex 2
of the Memorandum of Understanding
dated 14th December 1997
“Regions | & 3 Multilateral GSO/MSS intersystem
co-ordination for the frequency bands
1525-1544/1545-1559 MHz, 1626.5—-1645.5/1646.5—1660.5 MHz”
ANNEX 2
Memorandum of Understanding
dated 14th December 1997
“Regions | & 3 Multilateral GSO/MSS intersystem
co-ordination for the frequency bands
1525—1544/1545-1559 MHz, 1626.5—1645.5/1646.5—1660.5 MHz”
(including Amendment No. | dated 18th September 1998)
ADMINISTRATIONS
AFFAIRS

OPERATING IN THE BANDS BELOW I GHz (S-PCS <1 GHz)
(CEPT/ECTRA/DEC(99)o2)

Affairs (ECTRA), I hereby confirm that this decision was approved in Madrid
on 3 March 1999 at the XXVIIIth ECTRA Plenary Meeting and that during
the two months following the adoption of the decision I have received
commitments in writing from the following CEPT member countires to
implement the terms of this decision:
[Country A
Country B
Country C
Country D
Country E
Etc.
to be completed after written confirmation to be given by CEPT Members
within two months of the adoption of the decision, that means until
03.05.1999]
Mr Frédéric Riehl
Chairman of ECTRA
OFCOM ~— Federal Office for Communications
CH-2501 Bienne
Phone: +41 32 327 54 54; Fax: +41 32 327 54 66

ETO web-site http://www.eto.dk
583

ADMINISTRATIONS
AFFAIRS

OPERATING IN THE BANDS BELOW I GHz (S-PCS <1 GHz)

tions,
CONSIDERING
1) that S-PCS <1 GHz systems will provide either global or regional
coverage,
2) that a co-ordinated procedure for authorisations, as well as harmonised
conditions for authorisations, will benefit users, satellite network opera-
tors, service providers, manufacturers and administrations,
3) that the European Parliament and Council Decision 710/97/EC on a co-
TAKING INTO ACCOUNT

1) the time schedule laid down in the EC Decision, see Considering 3, for
the implementation of S-PCS,
2) that ERC has adopted Decision ERC/DEC/(99)06 concerning the
harmonized introduction of S-PCS in frequency bands below 1 GHz,
3) that, within the EEA, Directive 97/13/EC on a common framework for
general authorisations and individual licenses in the field of telecommu-
nications services, as well as Directive 98/13/EC relating to telecommu-
nications terminal equipment and satellite earth stations equipment
including the mutual recognition of their conformity have been adopted.
DECIDES
1) that for the purpose of this Decision ‘S-PCS < 1 GHz system’ is defined as
in ‘Decides 1’ of ERC/DEC/(99)06 and shall mean non-voice non-
geostationary MSS system operating in the bands below 1 GHz, subject
to the conditions specified in the Radio Regulations,
3) that in this Decision, the term authorisation shall cover any legal or
administrative measures regarding telecommunications networks or
services or terminalsfor S-PCS < 1 GHz,
4) that the granting of authorisations, if required by individual CEPT

Members, shall be assessed and decided upon, in a co-ordinated way, in
accordance with the process towards authorisation for S-PCS<1 GHz
illustrated in Annex 1,
in Decides 3 above shall be in accordance with Directive 97/13/EC,
6) that ECTRA and ERC will, in order to assist NRAs in applying
procedures described in Annex 1, use the General Milestone Review
Committee (GMROC), primarily to examine whether the milestone criter-
ia, as defined in Annex 2, are met by the applicants, and the requirements
of decides Sb and 5c of ERC/DEC/(99)06 have been approved by ERC,
7) that in granting the authorisations referred to in Decides 2 above, NRAs
shall take into consideration the recommendations made by the GMRC,
8) that necessary measures of a legal or administrative nature, for offering
authorizations, should be implemented within a time schedule compa-
tible with the technical and commercial needs of S-PCS <1 GHz which
are listed in Annex 2 of ERC/DEC/(99)06,
9) that the authorisation shall be granted within the time schedule compatible
with the technical and commercial need of S-PCS under consideration,
necessary, taking into consideration modification of companion Deci-
sions,
11) that this Decision shall enter into force on 1 May 1999,
ANNEX 1
Process towards authorisation for S-PCS < 1 GHz
It is expected that the authorisation may be initiated in the following way:

An entity (later referred to as an «Applicant»), acting within the national
law of an administration, seeking authorisation within that administra-
tion or a number of administrations, submits an application to the
administration.
The consideration of authorisation of S-PCS<1 GHz by an administration

should take the following approach:
1) To initiate the process, as stated above, the Applicant will submit an

application to an administration. The application should include two
parts:
a) information about the applicant and its project including where
appropriate, information showing that the applicant has been duly
authorised by the relevant satellite operator, whose system is being
monitored against the milestone process described in Annex 2 and
including the following items:
— The reference to the ITU Weekly Circular Special Section
for the ‘Advance Publication of Information’ of the S-PCS
system,
— an undertaking to comply with the milestones procedure,
~ a plan describing how the applicant intends to fulfill mile-
stones’
b) — specific national parts including national requirements.
2) The administration will then examine the application to ensure that it

complies with the national law and the requirements placed on the
applicant by this Decision as well as ERC/DEC/(99)06. An application
failing to meet requirements of the national law, of this Decision or of
ERC/DEC/(99)06, if implemented, should be rejected by the administra-
tion.
An explanation of the rejection should be returned to the applicant.
3) The administration will then forward the elements of the application
which it judges relevant, to the MRC, if the application is relevant with
respect to Decides 3.
4) GMRC will re-examine the application to ensure that it complies with the
requirements placed on the applicant by this Decision as well as ERC/
DEC/(99)06. If the GMRC considers that the application fails to comply
then it will advise all administrations of this by providing a complete
explanation.The administration which submitted the application may
offer comments on the GMRC findings and if necessary re-submit the
application.
5) The applications considered successful at the stage 4) above will be
further considered by GMRC for the compliance with the milestones.
The GMRC will make further recommendations, as necessary, to the
administrations on the achievement, or likely achievement, of the
individual milestones. It is expected that these recommendations would
assist administrations in examining the application submitted for author-
isation and granting authorisation where necessary.
6) The administration will, as necessary and if appropriate, assess whether

to grant an authorisation taking into account the recommendations of
the GMRC_In general, the authorisation may be offered at any stage in
the process.
7) The administration may reconsider existing authorisations on the basis of
failure to meet the milestone requirements, thereby taking into account
the view of the GMRC.
When an applicant completes all the milestones, the GMRC will notify
the administration and, if necessary, the administration will confirm any
authorisations.
9) In cases where individual licenses are required, the administration which
has submitted the application to GMRC shall inform applicants of their
decision no later than4 months after receiving the application.
ANNEX 2
Milestones for the introduction of S-PCS below 1 GHz
(as in Annex 3 of ERC/DEC/(99)06)
The milestones to be applied are listed below.

MILESTONES
Submission of ITU Advance Publication and Co-ordination Documents

The satellite network operator should provide clear evidence that the
administration responsible for an S-PCS<1GHz system has submitted
ITU RR Appendix 4 ‘Advance Publication Information to Be Furnished
for a Satellite Network’ and ITU RR Appendix S4 ‘Notices Relating to
Space Radiocommunications and Radio Astronomy Stations’.
Satellite manufacturing
agreement for the manufacture of its satellites. The document should
identify the construction milestones leading to the completion of manu-
facture of satellites required for the commercial service provision. The
satellite manufacturing company and should be available for inspection
by the competent CEPT body. If they are the same, a commitment should
also be provided by the satellite network operator.
Completion of the Critical Design Review

process at which the design and development phase ends and the
manufacturing phase starts.
The satellite network operator should provide clear evidence of the
completion of the Critical Design Review in accordance with the
construction milestones indicated in the satellite manufacturing. The
declaration, signed by the satellite manufacturing company and indicat-
ing the date of the completion of the Critical Design Review, should be
available for inspection by the competent CEPT body.
Satellite launch agreement

agreement to launch the minimum number of satellites required to
provide service within the CEPT. The document should identify the
launch dates and launch services and the indemnity contract. The
satellite launching companies and should be available for inspection by
the competent CEPT body.
Gateway earth stations

agreement for the construction and installation of gateway Earth stations
that will be used to provide commercial service. This document should be
available for inspection by the competent CEPT body.
Launch of satellites
a) The satellite network operator should make available for inspection
by the competent CEPT body documents confirming the first
successful satellite launch and in-orbit deployment.
b) The satellite network operator should also provide periodic evi-
dence of subsequent launches and successful in-orbit deployment of
satellites in the constellation.
Frequency coordination
The satellite network operator should submit to the competent CEPT
body documents relating to the successful frequency coordination of the
system pursuant to the relevant provisions of the Radio Regulations.
However, a system which demonstrates compliance with milestones 1 to 6
inclusive is not obliged to demonstrate at this stage completion of
successful frequency coordination with those S-PCS<1GHz systems
which fail to comply adequately and reasonably with milestones 1 to 6
inclusive.
Provision of satellite service within CEPT

The satellite network operator shall notify the competent CEPT body
that it has launched, and has available for the provision of service, the
number of satellites it previously identified under milestone 4 as neces-
sary to provide commercial service, and that it shall be providing
commercial service within the CEPT on the basis of the operational
constraints relevant to that system in Annex 2.
ADMINISTRATIONS
AFFAIRS
CEPT/ECTRA RECOMMENDATION OF 3 MARCH 1999

ON MILESTONE COMPLIANCE OF
OPERATING WITHIN THE BANDS
1525-1544/1545-1559 MHZ, 1626.5-1645.5/1646.5-1660.5 MHz
(CEPT/ECTRA/REC(99)o2)

Affairs (ECTRA), I hereby confirm that this recommendation was approved in
Madrid on 3 March 1999 at the XX VIIIth ECTRA Plenary Meeting.
Mr Frédéric Riehl
Chairman of ECTRA
OFCOM -— Federal Office for Communications
CH-2501 Bienne
Phone: +41 32 327 54 54; Fax: +41 32 327 54 66

ETO web-site http: //www.eto.dk
590

ADMINISTRATIONS
AFFAIRS
CEPT/ECTRA RECOMMENDATION OF 3 MARCH 1999

ON MILESTONE COMPLIANCE OF
OPERATING WITHIN THE BANDS
1525-1544/1545-1559 MHZ, 1626.5-1645.5/1646.5-1660.5 MHz
(CEPT/ECTRA/REC(99)o02)

tions,
CONSIDERING
1) that harmonised conditions for authorisations of 1.5/1.6 GHz S-PCS, are
stipulated in ECTRA/DEC(99)01 of 3 March 1999,
3) that the use of radio spectrum is subject to multilateral agreement (1.5/
1.6 GHz band Memorandum of Understanding (1.5/1.6 GHz band
MoU)) under the provisions of the ITU Radio Regulations;
4) that a Milestone Review Procedure has been implemented under the
provisions of the 1.5/1.6 GHz-Band MoU to determine if the milestones
are met by satellite network operators;
RECOMMENDS
1. that CEPT administrations consider that the satellite networks listed
below at A) and B) in this Recommendation have brought their satellite
networks into full operation;
2. that the satellite networks listed below at A) and B) have satisfied all the
milestones specified in the 1.5/1.6 GHz band MoU according to the
Annex 2 of ECTRA/DEC(99)01 of 3 March 1999, and should not be
subject to further CEPT milestone compliance requirements.
CEPT/ECTRA/REC(99)02 592
Satellite networks in compliance with all milestones
A) Inmarsat Network(s)
INM-AORE 15.5W, 17W
INM-IOR 64E, 65E
INM-POR 178E, 179E
AOR-W 54W, 55W
B) ITALSAT Network
16:4E} 10 2B ,A1322E
CEPT/ECTRA DECISION OF 2 DECEMBER 1999 ON THE ESTABLISHMENT
OF A REGULATORY DATABASE OF LICENSING REGIMES FOR
TELECOMMUNICATION NETWORKS AND SERVICES
CALL FOR COMMITMENT, 13.12.1999

As vice Chair-persons of the European Committee for Telecommunications
Regulatory Affairs (ECTRA), we hereby confirm that this decision was
approved in Oslo on 2 December 1999 at the XXXth ECTRA Plenary
Meeting.
CEPT member countries are invited to send a written confirmation of

commitment within two months of the adoption of the decision (03.02.2000).
Ioana Slavescu Frederic Puaux

ECTRA Vice chair person ECTRA Vice chairman
1. Introduction
The 43 CEPT administrations apply a variety of regulations for the exploitation

of telecommunication networks, infrastructure, and services and the use of
radio equipment. Market entry requires quick access to regulatory information
in the European countries in order to obtain the necessary licences. CEPT
decided to establish a database containing the required information of CEPT
administrations in one place. This Decision provides for such a database.
Detailed information for the content of the database is set out in the annexes
to this Decision.
2. Background
Both ETO and ERO websites contain information with respect to regulatory
aspects in the 43 CEPT countries. Signatory countries to ETOs One-Stop-
Shopping arrangement provide information for a database on so called Other
liberalised services. ETO started collecting, analysing and publishing regula-
tory information on Voice Telephony and Infrastructure. ERC Decision
(97)09/ECTRA Decision (97)01, on the provision of information for a
database of licensing requirements for VSAT/SNG also provide for a database
of VSAT/SNG regulations. ERC Decision (97)01 provides for the publication
of national frequency tables.
The main purposes of these regulatory databases as well as this Decision is to

support what is termed ‘One Stop Shopping’ already developed within the
CEPT and to encourage their extension to telecommunications networks and
services not yet covered. The One Stop Shopping concept was introduced to
593
speed up and simplify the process of obtaining licences when such licences are
required in more than one country in the CEPT. The thrust of this Decision is
aimed primarily at entities wishing to provide networks and services in more
than one CEPT country. It does not aim to radio amateur licences, national
broadcasting licences, PMR-licences, etc. because there is no benefit to issue
such licences through a One Stop Shopping process.
This Decision does not replace Decision ERC(97)01 (ERC Decision of 21
March 1997 on the publication of national tables of frequency allocations) or
ERC Decision of 30 June 1997/ECTRA Decision of 12 March 1997 on the
provision of information for a database of licensing requirements for VSAT/
SNG ((ERC/DEC(97)09 and ECTRA/DEC(97)01).
However, while this Decision does encompass VSATs and SNG, it is envisaged
that Decisions (97)09 could be withdrawn at the moment all countries that
already signed up to (97)09 have also signed up to this Decision because at that
moment ERC Decision ERC/DEC(97)09 and ECTRA/DEC(97)01 would
become obsolete. Administrations are encouraged to sign up to this new
Decision rather than to the existing VSAT/SNG Decision as mentioned above.
3. Requirements for an ECTRA Decision
The possibility to use a single database is appreciated highly, both by operators
and by administrations as a very helpful tool to support industry to obtain
licences in the CEPT. The importance of such a database, the need to up-date
the database on a regular basis and the fact that such a database is an
appropriate tool to achieve harmonisation justifies the development of an
ECTRA Decision.

tions,
CONSIDERING
a. _ that licensing regimes differ from country to country;
b. that it can be time-consuming for applicants to get all the necessary
licensing information separately from each individual administration;
co that it is useful to have access to this information from a central database;
d. that ETO has been mandated by ECTRA and ERC to establish and
maintain databases and make the information publicly available;
e. that it is necessary for the administrations to provide the appropriate
fi that CEPT has been mandated by the European Commission to
investigate the desirability, added value and possible modalities for
establishing of a One-Stop-Shopping procedure for the operation of
telecommunications networks and services
g. that ECTRA and ERC have concluded that a regulatory database of
CEPT/ECERA/DEC
(99) 05). 595
licensing regimes for telecommunication networks and services is feasible

and should be implemented in order to support applicants seeking
authorisation in more than one country
TAKING INTO ACCOUNT

ie ERC Decision of 21 March 1997 on the publication of national tables of
frequency allocations (ERC/DEC(97)01)
ii. ERC Decision of 30 June 1997/ECTRA Decision of 12 March 1997 on
the provision of information for a database of licensing requirements for
VSAT/SNG (ERC/DEC(97)09 and ECTRA/DEC(97)01)
iil. the ‘Arrangement for a One-Stop-Shopping procedure for licences and
other national authorisations for telecommunications services pursuant
to the Memorandum of Understanding establishing the European Tele-
communications Office’
DECIDES
1. that administrations shall provide the information detailed in Annex | in
the English language and, if they wish, in other languages, to ETO,
whenever this information is available according to national legislation;
3. that this Decision shall enter into force on December 1999;
4. that CEPT Member administrations shall report their commitment to the
ECTRA Chairman and ETO when the Decision is nationally implemen-
ted.
ANNEX 1
Framework for a regulatory database of licensing regimes for telecommunica-
tion networks and services
. The date of the last update of the information

II. General principles and description of the legal basis of the authorisation/
licensing system in the country, relevant laws, policy documents etc.
III. Definitions of relevant licensing regimes as far as they result in different
licence categories
1) National definitions of licence categories, systems, networks and
services.
(The following information should be supplied per category as defined in under
VIET)
IV. National authorisation systems

2) Licensing regime including conformity assessment requirements,
frequency assignment procedures etc.
3) Overview of frequency information relevant for each licence cate-

gory (availability, restrictions etc.).
Preconditions which have to be fulfilled by the applicant
4) Ownership restrictions (e.g. foreign ownership restrictions, restric-
tions for operators who already run other networks or provide
mobile services, etc.).
5) Conditions concerning reciprocal access to applicants’ domestic
markets.
6) Conditions in terms of the applicant’s financial capability.
7) Individual requirements such as managerial and technical compe-
tence of the applicant and/or his staff.
8) Requirement for structural separation of entities with a dominant
position/significant market power in other markets.
9) Presence of a legally registered representative in the country where
the service/infrastructure will be provided.
10) Other preconditions e.g. due diligence requirements, fulfilment of
milestones set by a CEPT Milestone Review Process if appropriate.
VI. Authorisation procedures
11) Body to contact for further information/ body responsible for every
licence component (e.g. service, frequency, infrastructure).
12) List of information which has to be given to the NRA by the
applicant in order to obtain the authorisation, including evidence
that the preconditions are met and including the form in which it
should be provided (language, copies etc).
a) Applicant identification (information such as address, con-
tact name and numbers, business registration information
etc. which applicants should provide. It refers to strictly
administrative details.).
b) Description of networks and services to be authorised
covers all information about the proposed project:. Com-
mon information for services and networks (description of
the network, its coverage, its roll-out, the transmission
means, the interconnection planned etc.). Description of
the service (details on the service description, the quality of
the services or service availability for instance). Description
of the networks to be authorised (equipment used, security
compliance of the network).
c) Corporate Structure (information regarding the structure of
the company, shareholding, ownership structure, details on
the managers, alliances or partnerships in the telecommuni-
cations sector, as well as overall financial information (i.e.
this does not include the detailed project financial informa-
tion which are addressed under ‘f’).
CEPT/ECTRA/DEC(99)05) 597
d) Relevant experience and qualifications (expertise of the
undertaking such as: reliability, commercial experience,
technical experience, telecommunications experience or
experience in a related sector, proof of knowledge or
personnel qualification).
e) Market Strategy (marketing aspects of the project, i.e. sales
plan, market positioning, clients service, billing system,
market forecast).
f) Financial information (financial capacity of the applicant,
business and/or investment plans).
g) Radio Frequencies and Numbering information (ancillary
items required for information purposes by some NRAs).
h) Other information (miscellaneous topics such as Human
Resources or R&D information).
i) Information about the procedure (information such as the
number of copies to be sent or what additional documents/
declarations have to be attached to the file).
13) Other information/documentation which has to be given to the
NRA by the applicant in order to obtain the authorisation.
14) Time scale for the processing of applications (where applicable).
15) Reasons why the NRA can refuse authorisation or permission to
provide services/infrastructure.
16) Description of the appeal procedures in case of the refusal men-
tioned above.
Vil. Rights and obligations which may be attached to an authorisation
17) List of rights and obligation for the licensee (e.g. interconnection,
rights of way, premium rate service, numbering, data protection).
18) List of information required by the NRAs from operators and
service providers to fulfil reporting duties in order to verify
compliance with the licensing conditions listed above and a descrip-
tion of how operators and service providers have to provide this
information.
19) Description of the Universal Service Obligation (USO), appoint-
ment of the USO provider and Universal service funding.
20) Specific obligations imposed on operators with significant market
power.
21) Duration of the authorisation.
22) Renewal conditions and conditions to change the authorisation.
23) Fees (initial and periodically, where appropriate).
24) Right to and restrictions on the transfer of authorisations by a
licensee.
VIII. Sanctions and appeal

25) Description of complaint procedures and appeal procedures and
addresses of appeal bodies.
26) Cases in which the NRA can impose sanctions on operators and
service providers and list of these sanctions.
27) Cases in which the NRA can withdraw permission to provide the
service/operate the network.
IX. Other important information
1.3. SATELLITE ACTION PLAN REGULATORY
WORKING GROUP (SAP-RWG)
SATELLITE SCORECARD
Last revision: 9 June 1999

ERC Decisions and Recommendations affecting satellite services
CEPT/ERC/DEC(95)01 on the free circulation of radio equipment in CEPT member countries

CEPT/ERC/DEC(97)03 on the Harmonised Use of Spectrum for Satellite Personal
Communication Services (S-PCS)
CEPT/ECTRA/DEC(97)02 on harmonisation of authorisation conditions and co-ordination of
procedures in the field of Satellite Personal Communications Services (S-
PCS)
CEPT/ERC/DEC(97)04 on transitional arrangements for the Fixed Service and the Mobile
Satellite Service (concerning the 2 GHz band)
CEPT/ERC/DEC(97)05 “on free circulation, use and licensing of Mobile Earth Stations of
Satellite Personal Communications Services (S-PCS)
CEPT/ERC/DEC(97)07 on the frequency bands for the introduction of the Universal Mobile
Telecommunications System (UMTS)
CEPT/ERC/DEC(97)09 on the provision of information for a data base of licensing requirements
for VSAT/SNG
CEPT/ERC/DEC(98)01 on free circulation and use of Inmarsat-D terminals in CEPT member
countries
CEPT/ERC/DEC(98)02 on free circulation and use of Inmarsat-phone (also known as Inmarsat
Mini-M) terminals
CEPT/ERC/DEC(98)03 on free circulation and use of EMS-PRODAT terminals
CEPT/ERC/DEC(98)04 on free circulation and use of EMS-MSSAT terminals
CEPT/ERC/REC 21-15 Free circulation and use of land mobile satellite service terminals in
Europe
CEPT/ERC/REC 21-16 Type approval for Land Mobile Satellite Service terminals
CEPT/ECTRA/REC(99)02 on Milestone compliance of Satellite Personal Communication Services
(S-PCS) in Europe, operating within the bands 1525—1544/1545-1559
MHz, 1626.5-1645.5/1646.5-1660.5 MHz
CEPT/ERC/DEC(98)12 Exemption from Individual Licensing of Inmarsat-D terminals
CEPT/ERC/DEC(98)13 on Exemption from Individual Licensing of Inmarsat-C terminals for
land mobile applications
CEPT/ERC/DEC(98)14 on Exemption from Individual Licensing of Inmarsat-M terminals for
CEPT/ERC/DEC(98)15 on Exemption from Individual Licensing of Omnitracs terminals for the
Euteltracs system
CEPT/ERC/DEC(98)17 on Exemption from Individual Licensing of ARCANET Suitcase
terminals
CEPT/ERC/DEC(98)18 on Exemption from Individual Licensing of EMS-PRODAT terminals for
CEPT/ERC/DEC(98)19 on Exemption from Individual Licensing of EMS-MSSAT terminals for
CEPT/ERC/DEC(98)24 on free circulation and use of ARCANET Suitcase terminals
CEPT/ERC DEC(98)29 on Exemption from Individual Licensing of Inmarsat-phone terminals
(also known as Inmarsat mini-M)
CEPT/ERC DEC(99)05 on free circulation, use and exemption from individual licensing of Mobile
Earth Stations of S-PCS«<1 GHz systems
CEPT/ERC DEC(99)06 on the harmonised introduction of satellite personal communication
systems operating in the bands below 1 GHz (S-PCS < 1 GHz)
CEPT/ECTRA/DEC(99)01 on the harmonisation of authorisation conditions in the field of Satellite
Personal Communications Services (S-PCS) in Europe, operating within
the bands 1525-1544/ 1545-1559 MHz, 1626.5—-1645.5/1646.5-1660.5
MHz
CEPT/ECTRA/DEC(99)02 on the harmonisation of authorisation conditions in the field of Satellite
Personal Communications Services (S-PCS) in Europe, operating in the
bands below 1 GHz (S-PCS< 1GHz)
599
Austria Belgium Denmark Finland France Germany Greece
DEC(95)01 Yes Yes Yes Yes No Yes

DEC(97)03 Yes Committed Yes Yes Committed Yes
ECTRA/DEC
(97)02 No Yes Yes Yes Yes
DEC(97)04 Yes Yes Yes Committed Yes
DEC(97)05 Yes Committed Yes Yes Wes Yes
DEC(97)07 Yes Planned Yes Yes Under study Planned
DEC(97)09 Yes Yes Yes Yes Yes Committed
DEC(98)01 Yes Yes Yes Yes Committed Planned
DEC(98)02 Yes NES Yes Yes Committed Planned
REC 21-15 Yes Yes Yes
REC 21-16 No Planned Yes
ECTRA/REC
(99)02 No
DEC(98)12 Yes Yes Committed Committed
DEC(98)13 Yes Yes Yes : Committed
DEC(98)14 Yes Yes Yes Committed
DEC(98)15 Yes Yes Yes Committed
DEC(98)17 Planned Yes Committed Committed
DEC(98)24 Planned Yes Committed Committed
DEC(99)05 Planned
DEC(99)06 Planned
ECTRA/DEC
(99)01 No Committed
ECTRA/DEC
(99)02 No Committed
Yes: the Decision/Recommendation has been implemented on a national level

No: the Decision/Recommendation has not been implemented on a national level
Committed: the Administration has communicated the intention to implement the Decision/Recommendation
on a national level
Planned: the Administration will implement the Decision/Recommendation in the future
Under study: the Administration is studying the regulation contained in the Decision/Recommendation
Blank space: no information have been received by the Administration
Satellite Scorecard 601
Ireland Italy Lux. Neth. Portugal Spain Sweden UK
No Committed Planned Yes Planned Committed Yes Yes

Yes Yes Planned Yes Yes Committed Yes Yes
Yes Committed Yes Yes Yes

Yes No Planned Yes Yes Committed Committed Yes
Yes Committed Planned Yes Planned Committed Yes Yes
Committed No Planned Yes Yes Committed Committed Yes
Committed Committed Understudy Yes Yes Under study Yes Yes
Committed Committed Planned Yes Planned Under study Yes Yes
Committed Committed Understudy Yes Planned Under study Yes Yes
No Yes Yes Yes
Under study Yes Under study Yes
Planned Yes
Planned Planned Yes Planned Under study Yes
Planned Planned Yes Under study Under study No
Planned Planned Yes Under study No
Planned Planned Planned Yes
Committed Planned Committee Committed
Committed No Committed Committed
Committed Committed Yes
Committed No Committed
1.4. INTERNATIONAL TELECOMMUNICATION
UNION (L.T.U))
INFORMAL GROUP — MEMORANDUM OF UNDERSTANDING — GMPCS
(GENEVA, 14 FEBRUARY 1997)18 FEBRUARY 1997
MEMORANDUM OF UNDERSTANDING TO FACILITATE ARRANGEMENTS FOR

GLOBAL MOBILE PERSONAL COMMUNICATIONS BY SATELLITE, INCLUDING
REGIONAL SYSTEMS (GMPCS-MoU)
Fully recognizing ;
the sovereign right of each State to regulate its telecommunications and the
ITU’s Instruments;
in recognition of
the report by the Chairman of the 1996 World Telecommunication Policy
Forum, including the Opinions and voluntary principles;
taking into account

relevant national laws and regulations, including those concerning licensing
and frequency assignments;
convinced
a) of the need to reach regional, and preferably global, arrangements on
issues related to facilitating circulation of user terminals as follows:
- permission to carry a terminal into a visited country but not to use
it; and
— permission to carry a terminal into a visited country and to use it
within the framework of a licensing scheme (i.e. without the need
for obtaining individual authorization for the terminal in the visited
country);
as well as technical conditions for placing terminals on the market;
b) that such arrangements would necessarily include as a matter of priority
the conditions pursuant to which Administrations would grant mutual
recognition of type approval of terminals, mutual recognition of terminal
licensing, recognize the marking of terminals and permit terminals to be
placed on the market; and that such arrangements could form the basis of
national regulations on these matters;
the Signatories to this Memorandum of Understanding who include Adminis-
trations, GMPCS operators, service providers and manufacturers, hereby
agree to cooperate, according to their respective roles and competencies, on
the following issues:
602
Article |
Type approval of terminals
The Signatories will develop arrangements on the essential requirements
necessary for the type approval of terminals, and the means by which such
approvals will be mutually recognized. The type approval standards should be
based on the relevant ITU Recommendations, and should be impartial with
respect to all GMPCS technologies.
Article 2
Licensing of terminals
The Signatories will develop arrangements on the means by which licences
should be granted based on general licences (e.g. class licences or blanket
approvals). Such arrangements will be drawn up and include the means by
which these general licences will be mutually recognized.
Article 3
Marking of terminals
The Signatories will develop arrangements on the marking of terminals which
will permit their recognition and the implementation of the arrangements on
mutual recognition of type approval and licensing.
Article 4
Customs arrangements
The Signatories will develop recommendations to their competent authorities
proposing exemption of GMPCS terminals from customs restrictions when
brought into a country on a temporary or transitory basis.
Article 5
Access to traffic data
The Signatories will develop arrangements for GMPCS operators to provide,
on a confidential basis, within a reasonable period of time to any duly
authorized national authority which so requests, appropriate data concerning
traffic originating in or routed to its national territory, and to assist it with any
measures intended to identify unauthorized traffic flows therein.
Article 6
Review
The Signatories will periodically review the results and consequences of their
cooperation under this Memorandum of Understanding. When appropriate, the
Signatories will consider the need for improvements in their cooperation and
make suitable proposals for modifying and updating the arrangements, and the
scope of this GMPCS-MoU.
Done in:
[date]
signed:
GMPCS-MoU 604
i ies of the GMPCS - Vv. 1

i ir é d'accor r nov: re 199
Signatarios del Memorandum de Entendimiento GMPCS
al 8 de noviembre de 1997
Satphone Telecommunications 07.03.1997

Services Ltd
Holdings, Inc.
Development
Telecommunications Indust
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20.05.1997
USA PAO. TOT
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Finland 03.04.1997
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203.1997 USA
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05.04.1997
03.04.1997
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03.04.1997
03.04.1997
03.04.1997 03.04.1997
Lebanon (Ministry of Posts &
03.04.1997
0401997
Cameroon [04.04.1997
04.04.1997 04.08.1997
Kumho Telecom Korea
04.04.1997
04.04.1997
Korea 04.04.1997
Korea 04.04.1997
Korea 04.04.1997
Iridium Korea 04.04.1997
Co., Ltd
Office National des Postes & 03.04.1997
3 ; 04.04.1997
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10.09.97 10.0997
Sage [ecg Cian = pT Belgium 16.09.97
22.09.97
EE 06.10.97
Zanzibar 06.10.97
[66 [South Africa __————*[ 10.1097] SouthAfrica | 21.10.97
PLEASE NOTE THAT THE LIST OF SIGNATORIES TO THE MOU IS OUTDATED

MEMORANDUM OF UNDERSTANDING-GMPCS
ARRANGEMENTS PURSUANT TO THE GMPCS MoU TO FACILITATE THE

INTRODUCTION AND DEVELOPMENT OF GLOBAL MOBILE PERSONAL
COMMUNICATIONS BY SATELLITE (GMPCS)
(As agreed at the Third Meeting of Signatories and Potential Signatories of the
GMPCS-MoU, Geneva, 6—7 October 1997)
I. INTRODUCTION
On 21-23 October 1996, the first ITU World Telecommunication Policy
Forum (WTPF) met in Geneva to discuss “Global Mobile Personal Commu-
nications by Satellite’ (GMPCS). That meeting was attended by 833 delegates,
representing 128 Member States and 70 Sector Members. At that meeting, the
WTPFE engaged in a general discussion of the policy and regulatory issues
raised by the early introduction of GMPCS services. By consensus, the WTPF
adopted five Opinions, which are reflected in the Report by the Chairman of
the WTPF (Final Report dated 22 December 1996).
Opinion No. 2 of the first WTPF called for Administrations to facilitate the
early introduction of GMPCS services and to cooperate internationally in
developing and harmonizing policies to facilitate the introduction of GMPCS.
Opinion No. 2 also recognized that GMPCS System Operators will take steps
to inhibit the use of their systems in any country that has not authorized their
GMPCS service.
Opinion No. 4 adopted by the WTPF recognized that, because some GMPCS
systems are already in operation and others will be brought into operation as
early as 1998, urgent action is needed to facilitate the global circulation and
transborder roaming of terminals. Opinion No. 4 also recognized that the early
introduction of GMPCS services will be facilitated by a commonly agreed
upon GMPCS Memorandum of Understanding (MoU) to be used as a frame-
work for arrangements to facilitate the global circulation and transborder
roaming of GMPCS Terminals.
On 14 February 1997, pursuant to Opinion No. 4, an informal group of

Administrations, GMPCS operators, service providers, and manufacturers
met and finalized the GMPCS-MoU.
II. PREAMBLE
The GMPCS Arrangements that follow have been developed, pursuant to
Opinion No. 4 and the related GMPCS-MoU, by Administrations and/or
Competent Authorities, ITU Sector Members, GMPCS System Operators,
GMPCS Service Providers, and Manufacturers of GMPCS Terminals. The
objective of these Arrangements is to provide a framework for the introduction
of GMPCS, including: 1) the permission to carry a terminal into a visited
606
country and to use it, within the framework of a licensing scheme (i.e. without
the need for obtaining individual authorization for the terminal in the visited
country); 2) the permission to carry the terminal into a visited country but not
to use it; and 3) the technical conditions for placing terminals on the market.
Under the provisions of these Arrangements, the participants will be able to
cooperate in the development of GMPCS to the benefit of users worldwide. The
benefits of GMPCS will be fully realized when a significant number of
Administrations and/or Competent Authorities offer necessary authorization
for service provision and access to spectrum.
Ill. SCOPE OF THESE ARRANGEMENTS

1. These Arrangements do not alter or affect the sovereign right of each
Administration and/or Competent Authority to regulate its telecommu-
nications, as recognized in the Constitution and Convention of the ITU.
2. All Administrations and/or Competent Authorities, ITU Sector Mem-
bers, GMPCS System Operators, GMPCS Service Providers, and
GMPCS Terminal Manufacturers are invited to implement these Ar-
rangements. Implementation of these Arrangements or any of their
provisions is voluntary.
3. It is the intention and understanding of all parties implementing these
Arrangements that the Arrangements are consistent with and in further-
ance of the GMPCS-MoJU, the voluntary principles adopted by the
WTPF as contained in Opinion No. 2, and the relevant treaty provisions
of the ITU legal instruments.
4. These Arrangements provide a framework for the following:
a) Facilitation of mutual recognition of Type Approvals of GMPCS
Terminals;
b) Simplified licensing of GMPCS Terminals;
c) A method of identification (marking) of GMPCS Terminals;
d) Access to traffic data by authorized national authorities.
Sy Pursuant to Article 4 of the GMPCS-MoU, a Recommendation on the
principles for customs procedures to facilitate unrestricted transborder
movement of GMPCS terminals is also included.
IV. DEFINITIONS
Unless otherwise indicated, the terms listed below will have the following
meanings for purposes of the Arrangements and Recommendations herein:
1. Administration — Any governmental department or service responsible
for implementing these Arrangements or parts thereof.
2. Circulation — Ability to carry a GMPCS Terminal into a visited country.
In these Arrangements, circulation includes:
a) Permission to carry a terminal into a visited country and to use it
within the framework of a licensing scheme (i.e., without the need
for obtaining individual authorization for the terminal in the visited
country); and
GMPCS-Mou 608
b) Permission to carry a terminal into a visited country but not to use

ity
Competent Authority — Any organization competent for regulatory
issues addressed in these Arrangements.
Constellation of satellites - One or more satellites, geostationary or non-
geostationary, operated as a system.
GMPCS Service Provider — Any entity commissioned by a GMPCS
System Operator to provide GMPCS services to the public within a
country and which may require an authorization to do so under the
applicable legislation of the country concerned.
GMPCS System — Any satellite system (i.e. fixed or mobile, broadband or
narrow-band, global or regional, geostationary or non-geostationary,
existing or planned) providing telecommunication services directly to
end users from a constellation of satellites. ,
GMPCS System Operator — The entity responsible for the operation of a
GMPCS System.
GMPCS Terminal — A user terminal intended to be operated with a
GMPCS System.
License — An authorization to carry and use a GMPCS Terminal.
According to the national regime, the license can be any of the following:
a) An individual license, whereby for each terminal a separate author-
ization is issued;
b) A general license or class license, whereby one generic authoriza-
tion is issued, which applies to all users and to all terminals of a
given category;
c) A license exemption, whereby there is an exemption from requiring
an individual license for each terminal;
d) A blanket license, whereby an operator or service provider is
authorized to use a certain number of technically identical term-
inals.
10. Licensing — The issuance of a license or other authorization by an
Administration and/or Competent Authority in conformity with the
national laws and regulations of that country and the ITU Radio
Regulations and relevant Resolutions.
iw Sector Member — An entity or organization authorized to participate in
the work of one or more Sector(s) of the ITU in conformity with the
relevant provisions of the ITU Convention.
12 Type Approval — The process through which the conformity of GMPCS
Terminals with regulatory technical requirements is assessed. These
technical requirements are mainly intended to ensure that GMPCS
Terminals do not harm networks, GMPCS users, other users, or other
equipment. A variety of procedures (ranging from obligatory third party
testing to manufacturer’s declaration) may be in place.
13. Single mode terminal — A terminal which is capable of operating with

only one GMPCS system.
14. Multimode terminal — A terminal which is capable of operating with a
GMPCS system and, additionally, one or more other GMPCS systems or
terrestrial mobile systems.
15. GMPCS — MoU Mark - A Mark, agreed upon by the Signatories of the
GMPCS-MolU, that may be affixed on GMPCS Terminals pursuant to
these Arrangements. The appearance of the Mark, including its size and
wording, will be determined by the signatories of the GMPCS-MoU with
appropriate consultations with other affected parties.
V. GENERAL PROVISIONS
The Administrations and/or Competent Authorities, ITU Sector Members,
GMPCS System Operators, GMPCS Service Providers, and GMPCS Terminal
Manufacturers implementing these Arrangements understand and recognize
that:
1. A-variety of GMPCS Systems are at different stages of development and
implementation, including some already in service.
2. GMPCS Systems provide or will provide global and/or regional cover-
age.
3. GMPCS Systems will typically be characterized by the use of system-
specific GMPCS Terminals, manufactured by GMPCS Terminal Manu-
facturers and designed to be operated with specific GMPCS Systems.
4. The bringing into operation of new GMPCS Systems is subject to
satisfactory progress of frequency coordination in accordance with the
procedures established by the ITU Radio Regulations and relevant
Resolutions.
5. The use of the spectrum, assigned by Administrations and/or Competent
Authorities for GMPCS Terminals used with GMPCS Systems, will be in
accordance with the allocations of the ITU Radio Regulations and
relevant Resolutions.
6. Because Administrations and/or Competent Authorities have various
Type Approval procedures under differing legal regimes, it will not be
possible to arrive at a single procedure in the short term; however, it is
desirable for Administrations and/or Competent Authorities to mutually
recognize Type Approval and marking procedures for GMPCS Term-
inals.
7. It is desirable for Administrations and/or Competent Authorities to
continue to strive for a single procedure for Type Approval.
8. The exemption of GMPCS Terminals from a requirement for an
individual license facilitates regional and global circulation and transbor-
der roaming.
9. Administrations and/or Competent Authorities, GMPCS System Opera-
tors and GMPCS Service Providers will likely specify data exchange
GMPCS-Mou 610
requirements in order to service customers properly and to best comply

with national legislative or regulatory requirements.
10. Existing and planned GMPCS Systems will vary technically in the level of
detail of information captured by the System.
JU GMPCS System Operators and GMPCS Service Providers are subject to
the national laws and regulations in each country in which GMPCS
Services are being provided.
12 Customer specific information must be protected by GMPCS System
Operators and GMPCS Service Providers as private and confidential
information.
Each GMPCS System Operator shall take steps to inhibit the use of its
system in any country that has not authorized its GMPCS service.
GMPCS Terminals brought into a country to be placed on the market
will be subject to applicable customs duties, if any, and the technical and
regulatory requirements of that country. —
V1 SPECIFIC PROVISIONS
The Administrations and/or Competent Authorities, ITU Sector Members,
GMPCS System Operators, GMPCS Service Providers, and GMPCS Terminal
Manufacturers implementing these Arrangements agree to the following
specific provisions:
A. Type approval and marking of GMPCS terminals
(GMPCS-MoU Articles I and 3)
le GMPCS Terminals may be required to meet the following requirements
(hereinafter referred to as “essential requirements’):
a) Safety;
b) Electromagnetic compatibility (EMC); and
c) Effective use of the radio spectrum and orbital resources, including
electromagnetic interference (EMI).
Compliance with the above essential requirements may be demonstrated,
at the discretion of the relevant Administration and/or Competent
Authority, by conformity to appropriate ITU-R Recommendations,
international, regional, or national standards, or technical specifications.
Manufacturers may, at the discretion of the relevant Administration and/
or Competent Authority, be allowed to demonstrate compliance by other
means.
Administrations and/or Competent Authorities will make their national
administrative procedures for Type Approval publicly available, non-
discriminatory, and consistent with the objectives of these Arrangements.
It is recommended that Administrations and/or Competent Authorities
consider whether compliance can be demonstrated through a declaration
from the GMPCS Terminal Manufacturer without additional proce-
dures.
4. An Administration and/or Competent Authority that has issued Type

Approval pursuant to these Arrangements for a class of GMPCS
Terminals is encouraged to notify the ITU, upon the request of the
GMPCS Terminal Manufacturer, specifying:
a) Name of the Administration and/or Competent Authority;
b) Name of GMPCS Equipment Manufacturer;
c) Name of GMPCS System Operator;
d) Model number(s) or similar identifying information of GMPCS
Terminal(s); and
e) The date Type Approval was granted.
Administrations and/or Competent Authorities are also encouraged to
submit to the ITU copies of the standards, specifications, and/or
procedures used for Type Approval.
5. _AGMPCS Terminal Manufacturer may affix the GMPCS-MoU Mark to
a GMPCS Terminal provided that the following conditions are met:
a) At least one Administration and/or Competent Authority having
implemented these Arrangements has issued a Type Approval for a
class of GMPCS Terminals which includes the unit and has notified
this to the ITU in accordance with paragraph 4 of this Arrange-
ment;
b) The Operator of the GMPCS System with which the subject
GMPCS Terminal is to be used has notified the ITU that it has
implemented these Arrangements and that it has authorized the
subject GMPCS Terminal for connection to its GMPCS System;
and
c) The GMPCS Terminal Manufacturer has notified the ITU that it
has implemented these Arrangements.
d) The GMPCS Terminal Manufacturer has been authorized to affix
the GMPCS-MoU Mark by an entity designated by the signatories
of the GMPCS-MolU to authorize use of the GMPCS-MoU Mark.
6. Administrations and/or Competent Authorities are encouraged to accept
the Type Approval granted by other Administrations and/or Competent
Authorities denoted by the GMPCS-MoU Mark or any other mark
evidencing Type Approval without the need for additional testing or the
submission of test reports. Such acceptance may be subject to the
successful conclusion of mutual recognition agreements on conformity
assessment or other reciprocal arrangements. Administrations and/or
Competent Authorities are encouraged to accept, whenever possible,
existing test reports.
B. Licensing
(GMPCS-MoU Article 2)
1. Administrations and/or Competent Authorities that have implemented
these Arrangements are recommended not to require individual licenses
for GMPCS Terminals, provided that:
GMPCS-Mou 612
a) these terminals operate within the frequency bands identified for

such use by the Administration and/or Competent Authority in
question;
b) the GMPCS service, with which the GMPCS Terminals operate,
has been legally authorized if required, pursuant to national laws
and/or regulations;
c) the transmissions from the GMPCS Terminals are under the
operational control of the GMPCS System Operator and/or the
GMPCS Service Provider;
d) the GMPCS Terminals meet the relevant essential requirements in
these Arrangements; and
e) | mecessary measures are taken to avoid harmful interference between
services.
Administrations and/or Competent Authorities are recommended to
cooperate in the development of GMPCS to the benefit of all users and
to offer authorization of service provision and access to frequency
spectrum, subject to national laws and regulations.
Administrations and/or Competent Authorities implementing these Ar-
rangements are recommended to allow the circulation and use of
GMPCS Terminals, either single mode or multimode, provided that the
GMPCS Terminals have been demonstrated to meet the essential require-
ments in these Arrangements, as may be indicated by the presence of the
GMPCS-MoU Mark or another recognized mark.
Administrations and/or Competent Authorities that have implemented
these Arrangements are recommended to allow the circulation of
GMPCS Terminals (either single mode or multimode) on a temporary
or transitory basis without permission to use for all GMPCS systems.
Administrations and/or Competent Authorities implementing these Ar-
rangements may, consistent with these Arrangements, issue blanket or
class licenses for GMPCS Terminals or may exempt the GMPCS
Terminals from individual licenses.
C. Access to traffic data
1 Consistent with applicable national legislation in the country where
GMPCS service has been authorized, and recognizing technical differ-
ences between systems existing and planned, GMPCS system operators
or service providers will provide to Administrations and/or Competent
Authorities implementing these Arrangements, on a confidential basis,
within a reasonable period of time to any authorized national authority
which so requests, agreed GMPCS traffic data originating in or routed to
its national territory; and will assist with measures intended to identify
unauthorized traffic flows.
Under these Arrangements, all future designed GMPCS systems should
be structured to provide appropriate traffic data.
3. Existing Agreements between Administrations and/or Competent

Authorities and GMPCS System Operators and/or GMPCS Service
Providers will not be affected by these Arrangements.
Traffic data to be provided pursuant to these Arrangements do not
include confidential customer information, except as provided for by
national laws and regulations in each country in which GMPCS services
are being provided.
D. Recommendations on customs matters
The Administrations and/or other Competent Authorities, implementing these
Arrangements should recommend to their competent national authorities that:
1. Duties on GMPCS Terminals placed on the market be reduced or
removed, in particular by signing instruments such as the Information
Technology Agreement.
GMPCS Terminals be exempt from customs-related restrictions and fees
when visiting or transiting countries on a temporary basis.
Administrations and/or other Competent Authorities, as well as the ITU
Secretariat, if appropriate, work with the World Customs Organization to
ensure that GMPCS Terminals are entitled to treatment as a traveller’s
personal effects for purposes of entry into a country on a temporary or
transitory basis.
Administrations and/or Competent Authorities undertake, within the
framework of their national laws, regulations, and international obliga-
tions, to bring their legal and regulatory procedures in line with the
provisions of the Istanbul Convention on Temporary Admission, and
other relevant internationally recognized agreements.
Administrations and/or Competent Authorities take all practicable
measures to bring to the attention of customs officials the need to permit
the temporary or transitory entry into their countries of GMPCS
Terminals without unduly burdensome restrictions.
VIET. NOTIFICATION AND IMPLEMENTATION PROCEDURES

The ITU Secretary-General will write to all Administrations and/or
Competent Authorities, Sector Members, Signatories to the GMPCS-
MoU, and all non-signatories that have been participating in the
development of these Arrangements inviting them to implement these
Arrangements.
Administrations and/or Competent Authorities, ITU Sector Members,
GMPCS System Operators, GMPCS Service Providers, and GMPCS
Terminal Manufacturers intending to implement these Arrangements are
encouraged to notify the ITU Secretary-General at the earliest possible
date their intention to implement the Arrangements and the date by
which the Arrangements are planned to be implemented. Upon imple-
mentation of the Arrangements, Administrations and/or Competent
GMPCS-Mou 614
Authorities, ITU Sector Members, GMPCS System Operators, GMPCS

Service Providers, and GMPCS Terminal Manufacturers that have
implemented these Arrangements will notify the ITU Secretary-General
how these Arrangements have been implemented. To this end:
a) Administrations and/or Competent Authorities intending to imple-
ment these Arrangements on a national level are encouraged to
ensure that relevant national telecommunications regulations and
customs requirements support the full realization of the goals of
these Arrangements.
b) Administrations and/or Competent Authorities implementing these
Arrangements should notify the Secretary-General of the specific
GMPCS Systems that are authorized to operate in the country.
c) GMPCS System Operators that implement these Arrangements
should inform the Secretary-General which GMPCS Terminals are
authorized for connection to their systems and which GMPCS
Service Providers are authorized by them.
d) Administrations and/or Competent Authorities, ITU Sector Mem-
bers, GMPCS System Operators, GMPCS Service Providers, and
GMPCS Terminal Manufacturers should inform the Secretary-
General of any provisions of these Arrangements they do not intend
to implement.
e) The ITU Secretary-General should be notified of any changes in the
information provided pursuant to these Arrangements.
The Secretary-General of the ITU will be the depository of these
Arrangements and will make information about the Arrangements read-
ily available to all Administrations and/or Competent Authorities, all
Sector Members, all GMPCS System Operators, all GMPCS Service
Providers, and all GMPCS Terminal Manufacturers. The ITU will also
maintain a list of standards and specifications that are used for Type
Approval.
The Secretary-General will periodically publish, including electronically,
a report on the implementation of these Arrangements, which will
include: a list of all entities that have implemented the Arrangements, or
any part thereof; the GMPCS Systems that are authorized in each
country; a list of the GMPCS Terminals that have been granted approval
pursuant to these Arrangements indicating the countries that have
granted Type Approval; and such other information as may be requested
by the Signatories to the MoU and/or the entities that have notified the
ITU that they have implemented these Arrangements.
Some of the provisions in these Arrangements may require action and
ongoing activities by the ITU. The entities implementing these Arrange-
ments are invited to work with the ITU to ensure that the ITU has the
capability, authority, and resources to perform the functions it is expected
to perform pursuant to these Arrangements.
MEMORANDUM OF UNDERSTANDING-GMPCS (GENEVA, 12-13 MARCH 1998)
Document No. 2(Rev2)-E

12-13 March 1998
Original: English
IMPLEMENTATION OF THE GMPCS-MoU ARRANGEMENTS
At its meeting on 12-13 March 1998, the GMPCS-MoU Informal Group

adopted the following, to be annexed to the GMPCS-MoU Arrangements that
were adopted on 7 October 1997:
I. PROCEDURES FOR NOTIFICATION AND IMPLEMENTATION

OF THE ARRANGEMENTS
General implementation
1. ITU Secretary-General information letter
The ITU Secretary-General sends a letter to all Administrations and/or
Competent Authorities, Sector Members, and Signatories to the
GMPCS-MoU and all non-Signatories that have been participating in
the development of the GMPCS-MoU Arrangements:
1.1. forwarding the appropriate documents for implementation of the
Arrangements;
1.2. inviting them to prepare to implement the Arrangements and to
notify the ITU Secretary-General of their intention to implement
the Arrangements.
2. Letter of intention to implement
Administrations and/or Competent Authorities, ITU Sector Members,
GMPCS System Operators, GMPCS Service Providers, and GMPCS
Terminal Manufacturers intending to implement these Arrangements
notify the ITU Secretary-General, at the earliest possible date, of their
intention to implement the Arrangements.
System-specific implementation
3. GMPCS System Operator’s letter to the ITU Secretary-General shall
include the following:
3.1. Implementation notification
Notification that the GMPCS System Operator has implemented
the Arrangements. This includes a statement that the operator will
activate only those GMPCS Terminals which it authorizes for
connection to its GMPCS System under the terms of the Arrange-
ments. It also includes a statement that the Operator commits to
bearing its share of the ITU’s costs of implementing the Arrange-
ments in accordance with Section IV.4.
615
St System description
A description of the GMPCS System. The level of details provided
is at the discretion of GMPCS System Operator. The information
should contain at least the ITU Special Section Number (and
associated ITU Weekly Circular Number) in which the relevant
technical information submitted to the ITU can be found and
should be sufficient to identify the particular system to an Admin-
istration which may not be familiar with it by name alone.
S03! List of GMPCS Terminal types authorized to connect to the system
3.4. Request to the ITU Secretary-General to send the system-specific
implementation letter
The GMPCS System Operator requests the ITU Secretary-General
to send the system-specific implementation letter called for in item 7
below. This will include an indication of which GMPCS Terminal
Manufacturers and which Administrations and/or Competent
Authorities will send the ITU the information needed to satisfy the
marking conditions of the Arrangements.
BES: List of GMPCS Service Providers and their geographical coverage
4. GMPCS Terminal Manufacturer’s letter to the ITU Secretary-General
4.1. Implementation notification
Notification that the GMPCS Terminal Manufacturer has imple-
mented the Arrangements. This includes a statement that the
GMPCS Terminal Manufacturer will place on the market only
those GMPCS Terminals that comply with the requirements of the
Arrangements. It also includes a statement that the Manufacturer
commits to bearing its share of the ITU’s costs of implementing the
Arrangements in accordance with Section IV.4.
4.2. Relevant type approval information
A list of the relevant technical requirements that the GMPCS
Terminals meet or exceed, including a reference to the relevant
ITU Recommendations, international, regional, or national stan-
dards or technical specifications.
By Type approving Administration(s) letter to the ITU Secretary-General
Following the request of a GMPCS Terminal Manufacturer, at least one
Administration and/or Competent Authority that has commenced im-
plementation of the Arrangements by following the procedure in Item 2
above sends a letter to the ITU Secretary-General, which will include:
Stake Statement that the terminal has been approved
This should include a list of the requirements that provided the
basis for the type approval and indicate how verification of
compliance with these requirements was determined (e.g., test data
or certification provided by GMPCS Terminal Manufacturer or
testing laboratory).
GMPCS-Mou 617
5.2. Identifying information

5.2.1. Name of the Administration and/or Competent Authority;
5.2.2. Name of GMPCS Terminal Manufacturer;
5.2.3. Name of GMPCS System Operator;
5.2.4. Model number(s) or similar identifying information of
GMPCS Terminal(s); and
5.2.5. The date Type Approval was granted and what, if any, mark
was affixed.
ITU Acknowledgment of Receipt
The ITU Secretary-General immediately informs the GMPCS Terminal
Manufacturer that it has received all of the letters described in 3, 4 and 5
above. The Manufacturer may now affix the GMPCS-MoU mark.
ITU Secretary-General System-specific implementation letters to Admin-
istrations and/or Competent Authorities
Upon request of a GMPCS System Operator, the ITU Secretary-General
immediately sends a letter to all Administrations and/or Competent
Authorities inviting them to indicate whether they have authorized in
accordance with the Arrangements the Terminals of that specific GMPCS
System to operate in their country and attaches an annex containing
copies of the letters described under 3,4,5 and 6 above.
Notification of New GMPCS Terminals
If, subsequent to the implementation of the Arrangements on behalf of a
particular GMPCS System, new GMPCS Terminals not covered by the
type approval information previously submitted to the ITU are author-
ized for connection to that GMPCS System, then information about
those new GMPCS Terminals should be provided by repeating Steps 3.3,
3.4, and 4-7 outlined above.
Administrations’ and/or Competent Authorities’ implementation letters
to the ITU Secretary-General
Administrations and/or Competent Authorities send implementation
letters to the ITU Secretary-General in which they indicate whether they
have authorized the Terminals of the GMPCS System in question to be
carried and used in the country in accordance with the Arrangements and
whether any other conditions are required for use in that country. In the
event that the GMPCS service has not been authorized, the Administra-
tion indicates that the terminals of that system can be carried into the
country but not used.
10. Information Update
All information should be updated and supplemented, as necessary, to
keep the information on file at the ITU up to date.
ae Existing GMPCS Systems
GMPCS systems that wish to obtain the benefits of the GMPCS
Arrangements, including the GMPCS-MoU mark, for terminals already
in use shall follow the procedures outlined above and abide by all relevant
conditions in the GMPCS-MolU and the Arrangements.
II. THE ROLE OF THE ITU AS DEPOSITORY

In the GMPCS-MoU and Arrangements (see Section VII Notification and
implementation procedures, nos. 2, 3, 4), the GMPCS-MoU Informal Group
identified the following functions for the ITU Secretary-General:
1. to act as the Depository of the Arrangements and to make available the
information supplied by the Signatories implementing the Arrangements;
2. to act as the registry for type approval procedures that Administrations
and/or Competent Authorities have notified the ITU as having been used
to approve terminals;
3. to act as the registry of terminal types once Administrations and/or
Competent Authorities have notified the ITU that terminals have been
granted type approval;
4. to organize meetings, including an annual review meeting.
This role of Depository for the ITU Secretary-General is central to the
marking scheme to facilitate free circulation of GMPCS terminals. The
function of the ITU Secretary-General as Depository is receiving, acknowl-
edging receipt, and maintaining data collected under the procedures described
above. The data should be maintained in a simple and standardized format.
The data to be stored should include the information provided pursuant to the
notification procedures described above. The information should be updated as
received. The ITU Secretary-General shall also maintain a web site containing
the data and should disseminate hard copies of new or modified information to
Administrations and/or Competent Authorities and GMPCS-MoU Signa-
tories on a semi-annual basis and to others upon request.
II. THE GMPCS-MoU MARK

Marking of GMPCS terminals is critical to facilitating the circulation of the
terminals across national borders, and, thus, ensuring seamless and reliable
GMPCS service for all end-users. The use of the GMPCS-MoU mark does not
in any way imply a global type approval, including by the ITU.
The GMPCS-MoU mark is the following text, in English only: the letters
‘“GMPCS-MoU’, followed by the abbreviation ‘ITU’, followed by the word
‘Registry’. The format of this registry mark will be decided by the ITU
Secretary-General in consultation with the representatives of the Signatories.
The ITU has protected the abbreviation ‘ITU’ under the Paris Convention and
must therefore authorize the use of the abbreviation for the purpose of the
GMPCS-MoU mark. Documents will be prepared and executed to ensure that
the terms and conditions under which the ITU will authorize the use of its
abbreviation are agreed and understood. These documents will include the
rights, obligations, liabilities and responsibilities of all relevant parties, as well
as a dispute settlement mechanism.
GMPCS-Mou 619
IV. THE ADMINISTRATION OF THE ARRANGEMENTS

i Meetings
GMPCS-MoU Signatories will administer the Arrangements, meeting at
least annually to review the GMPCS-MoU, the Arrangements, the
budget and related issues.
Role of the ITU in the administration of the Arrangements
The ITU will serve as Depository of the GMPCS-MoU, the Arrange-
ments, and the information submitted pursuant to the GMPCS-MoU and
Arrangements.
Specific tasks and functions to be performed to administer and imple-
ment the Arrangements
In the Arrangements and the procedures described above, the following
tasks and functions are identified or implied as functions to be performed
by the ITU General Secretariat (italicized tasks are those tasks that will
be performed for each GMPCS system that implements the Arrange-
ments):
3.1. Develop web site, including a format for maintaining information
submitted pursuant to the Arrangements;
3.2. Send general implementation information letter to all Administra-
tions and/or Competent Authorities, GMPCS-MoU Signatories,
and all non-Signatories.
3.3. Send acknowledgment of receipt letters to GMPCS Terminal
Manufacturers;
3.4. Send system-specific implementation letters to all Administrations
and/or Competent Authorities;
3.5. Receive letters from GMPCS System Operators, GMPCS Terminal
Manufacturers, GMPCS Service Providers, Administrations and/
or Competent Authorities providing notification of type approval,
and Administrations and/or Competent Authorities implementing
the Arrangements;
3.6. Maintain copies of all letters sent and received;
3.7. Enter information from letters on web site;
3.8. Send out hard copies of all information received on a semi-annual
basis to all Administrations and/or Competent Authorities and
GMPCS-MoU Signatories and to others, upon request;
3.9. Respond to inquiries, as appropriate;
3.10. Update files and web site as necessary;
3.11. Translation of all correspondence with the ITU, which should be in
English, French or Spanish.
3.12. Arrange review meetings.
Cost Recovery
In conformance with the 1997 Council Resolution 1110, the principle of
full-cost recovery for the ITU-incurred administrative costs of imple-
mentation including direct and indirect costs will apply.The expenses to
be incurred by the ITU for the tasks and functions described above are to
be met by the GMPCS-MoU Signatories and potential Signatories who
implement the Arrangements, on a full cost recovery basis. No Adminis-
tration or Competent Authority shall be required to bear any of the ITU’s
costs in connection with the implementation of the GMPCS-MoU
Arrangements, unless that Administration or Competent Authority is or
becomes a GMPCS System Operator, GMPCS Terminal Manufacturer
or GMPCS Service Provider.
The method of determining the ITU’s costs of implementing the
Arrangements will be developed by the ITU Secretary-General. The
method of ensuring the reimbursement of those ITU costs will be
developed by the GMPCS System Operators and GMPCS Terminal
Manufacturers in consultation with the ITU Secretary-General.
V. ANNUAL REVIEW
There will be at least an annual review involving the Signatories and, at the first
review meeting, potential Signatories to the GMPCS-MoU to review and
evaluate the effectiveness of the procedures established and to make any
necessary changes. At that first review meeting, consideration should be given
to the status of potential Signatories and implementers of the Arrangements, as
well as the issue of Sector membership.
1.5. WORLD TRADE ORGANISATION (W.T.O.)
GENERAL AGREEMENT ON TRADE IN SERVICES, APRIL 1994
Members,
Recognizing the growing importance of trade in services for the growth and
development of the world economy;
Wishing to establish a multilateral framework of principles and rules for trade
in services with a view to the expansion of such trade under conditions of
transparency and progressive liberalization and as a means of promoting the
economic growth of all trading partners and the development of developing
countries;
Desiring the early achievement of progressively higher levels of liberalization of
trade in services through successive rounds of multilateral negotiations aimed
at promoting the interests of all participants on a mutually advantageous basis
and at securing an overall balance of rights and obligations, while giving due
respect to national policy objectives;
Recognizing the right of Members to regulate, and to introduce new regula-
tions, on the supply of services within their territories in order to meet national
policy objectives and, given asymmetries existing with respect to the degree of
development of services regulations in different countries, the particular need
of developing countries to exercise this right;
Desiring to facilitate the increasing participation of developing countries in

trade in services and the expansion of their service exports including, inter alia,
through the strengthening of their domestic services capacity and its efficiency
and competitiveness;
Taking particular account of the serious difficulty of the least-developed
countries in view of their special economic situation and their development,
trade and financial needs;
Hereby agree as follows:

PART I
SCOPE AND DEFINITION
Article I
Scope and definition
1. This Agreement applies to measures by Members affecting trade services.
2. For the purposes of this Agreement, trade in services is defined as the
supply of a service:
621
(a) from the territory of one Member into the territory of any other
Member;
(b) in the territory of one Member to the service consumer of any other
Member;
(c) bya service supplier of one Member, through commercial presence
in the territory of any other Member;
(d) by a service supplier of one Member, through presence of natural
persons of a Member in the territory of any other Member.
For the purposes of this Agreement:
(a) “measures by Members” means measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated
by central, regional or local governments or authorities;
In fulfilling its obligations andn commitments under the Agreement, each
Member shall take such reasonable measures as may be available to it to
ensure their observance by regional and local governments and authorities and
non-governmental bodies within its territory;
(b) “‘services’ includes any service in any sector except services
supplied in the exercise of governmental authority;
(c) “a service supplied in the exercise of governmental authority”
means any service which is supplied neither on a commercial basis,
nor in competition with one or more service suppliers.
Part II
GENERAL OBLIGATIONS AND DISCIPLINES
Article IT
Most-favoured-nation treatment
ib: With respect to any measure covered by this Agreement, each Member
shall accord immediately and unconditionally to services and service
suppliers of any other Member treatment no less favourable than that it
accords to like services and service suppliers of any other country.
A Member may maintain a measure inconsistent with paragraph 1
provided that such a measure is listed in, and meets the conditions of,
the Annex on Article II Exemptions.
The provisions of this agreement shall not be so construed as to prevent
any Member from conferring or according advantages to adjacent
countries in order to facilitate exchanges limited to contiguous fronter
zones of services that are both locally produced and consumed.
Article II
Transparency
Fs Each Member shall publish promptly and, except in emergency situa-
tions, at the latest by the time of their entry into force, all relevant
measures of general application which pertain to or affect the operation

of this Agreement. International agreements pertaining to or affecting
trade in services to which a Member is a signatory shall also be published.
Where publication as referred to in paragraph | is not practicable, such
information shall be made otherwise publicly available.
Each Member shall promptly and at least annually inform the Council
for Trade in Services of the introduction of any new, or any changes to
existing, laws, regulations or administrative guidelines which significantly
affect trade in services covered by its specific commitments under this
Agreement.
Each Member shall respond promptly to all requests by any other
Member for specific information on any of its measures of general
application or international agreements within the meaning of paragraph
1. Each Member shall also establish one or more enquiry points to
provide specific information to other Members, upon request, on all such
matters as well as those subject to the notification requirement in
paragraph 3. Such enquiry points shall be established within two years
from the date of entry into force of the Agreement Establishing the WTO
(referred to in this Agreement as the “WTO Agreement”). Appropriate
flexibility with respect to the time-limit within which such enquiry points
are to be established may be agreed upon for individual developing
country Members. Enquiry points need not be depositories of laws and
regulations.
Any Member may notify to the Council for Trade in Services any
measure, taken by any other Member, which it considers affects the
operation of this Agreement.
Article IT
bis disclosure of confidential information
Nothing in this Agreement shall require any Member to provide confidential
information, the disclosure of which would impede law enforcement, or
otherwise be contrary to the public interest, or which would prejudice
legitimate commercial interests of particular enterprises, public or private.
Article IV
Increasing participation of developing countries
Ig The increasing participation of developing country Members in world
trade shall be facilitated through negotiated specific commitments, by
different Members pursuant to Parts III and IV of this Agreement,
relating to:
(a) the strengthening of their domestic services capacity and its
efficiency and competitiveness, inter alia through access to technol-
ogy on a commercial basis;
(b) the improvement of their access to distribution channels and
information networks; and
(c) the liberalization of market access in sectors and modes of supply of

export interest to them.
2. Developed country Members, and to the extent possible other Members,
shall establish contact points within two years from the date of entry into
force of the WTO Agreement to facilitate the access of developing
country Members’ service suppliers to information, related to their
respective markets, concerning:
(a) commercial and technical aspects of the supply of services;
(b) registration, recognition and obtaining of professional qualifica-
tions; and
(c) the availability of services technology.
3. Special priority shall be given to the least-developed country Members in
the implementation of paragraphs 1 and 2. Particular account shall be
taken of the serious difficulty of the least-developed countries in accept-
ing negotiated specific commitments in view of their special economic
situation and their development, trade and financial needs.
Article V
Economic integration
1. This Agreement shall not prevent any of its Members from being a party
to or entering into an agreement liberalizing trade in services between or
among the parties to such an agreement, provided that such an agree-
ment:
(a) has substantial sectoral coverage’, and
(b) provides for the absence or elimination of substantially all discri-
mination, in the sense of Article XVII, between or among the
parties, in the sectors covered under sub-paragraph (a), through:
(i) elimination of existing discriminatory measures, and/or
(ii) prohibition of new or more discriminatory measures,
either at the entry into force of that agreement or on the basis of a reasonable
time-frame, except for measures permitted under Articles XI, XII, XIV and
XIV bis.
2. In evaluating whether the conditions under paragraph 1(b) are met,

consideration may be given to the relationship of the agreement to a
wider process of economic integration or trade liberalization among the
countries concerned.
3. (a) Where developing countries are parties to an agreement of the type
referred to in paragraph 1, flexibility shall be provided for regarding
the conditions set out in paragraph 1, particularly with reference to
' This condition is understood in terms of numbers of sectors, volume of trade affected and
modes of supply. In order to meet this condition, agreements should not provide for the a priori
exclusion of any mode of supply.
sub-paragraph (b) thereof, in accordance with the level of develop-

ment of the countries concerned, both overall and in individual
sectors and subsectors.
(b) Notwithstanding paragraph 6, in the case of an agreement of the
type referred to in paragraph 1| involving only developing countries,
more favourable treatment may be granted to juridical persons
owned or controlled by natural persons of the parties to such an
agreement.
(4) Any agreement referred to in paragraph! shall be designed to facilitate
trade between the parties to the agreement and shall not in respect of any
Member outside the agreement raise the overall level of barriers to trade
in services within the respective sectors or subsectors compared to the
level applicable prior to such an agreement.
If, in the conclusion, enlargement or any significant modification of any
agreement under paragraph 1, a Member intends to withdraw or modify
a specific commitment inconsistently with the terms and conditions set
out in its Schedule, it shall provide at least 90 days advance notice of such
modification or withdrawal and the procedure set forth in paragraphs 2,
3 and 4 of Article XXI shall apply.
A service supplier of any other Member that is a juridical person
constituted under the laws of a party to an agreement referred to in
paragraph | shall be entitled to treatment granted under such agreement,
provided that it engages in substantive business operations in the
territory of the parties to such agreement.
(a) Members which are parties to any agreement referred to in para-
graph | shall promptly notify any such agreement and any enlarge-
ment or any significant modification of that agreement to the
Council for Trade in Services. They shall also make available to the
Council such relevant information as may be requested by it. The
Council may establish a working party to examine such an agree-
ment or enlargement or modification of that agreement and to
report to the Council on its consistency with the Article.
(b) Members which are parties to any agreement referred to in para-
graph 1 which is implemented on the basis of a time-frame shall
report periodically to the Council for Trade in Service on its
implementation. The Council may establish a working party to
examine such reports if it deems such a working party necessary.
(c) Based on the reports of the working parties referred to in sub-
paragraphs (a) and (b), the Council may make recommendations to
the parties as it deems appropriate.
(8) A Member which is a party to any agreement referred to in paragraph |
may not seek compensation for trade benefits that may accrue to any
other Member from such agreement.
626 Telecommunications i
Article V
bis Labour markets integration agreements
This Agreement shall not prevent any of its Members from being a party to an
agreement establishing fuil integration* of the labour markets between or
among the parties to such an agreement, provided that such an agreement:
(a) exempts citizens of parties to the agreement from requirements concern-
ing residency and work permits;
(b) is notified to the Council for Trade in Services.
Article VI
Domestic regulation
1. In sectors where specific commitments are undertaken, each Member
shall ensure that all measures of general application affecting trade in
services are administered in a reasonable, objective and impartial
manner.
2. (a) Each Member shall maintain or insitute as soon as practicable
judicial, arbitral or administrative tribunals or procedures which
provide, at the request of an affected service supplier, for the
prompt review of, and where justified, appropriate remedies for,
administrative decisions affecting trade in services. Where such
procedures are not independent of the agency entrusted with the
administrative decisions concerned, the Member shall ensure that
the procedures in fact provide for an objective and impartial review.
(b) The provisions of sub-paragraph (a) shall not be construed to
require a Member to institute such tribunals or procedures where
this would be inconsistent with its constitutional structure or the
nature of its legal system.
3. Where authorization is required for the supply of a service on which a
specific commitment has been made, the competent authorities of a
Member shall, within a reasonable period of time after the submission
of an application considered complete under domestic laws and regula-
tions, inform the applicant of the decision concerning the application. At
the request of the applicant, the competent authorities of the Member
shall provide, without undue delay, information concerning the status of
the application.
4. With a view to ensuring that measures relating to qualification require-
ments and procedures, technical standards and licensing requirements do
not constitute unnecessary barriers in trade in services, the Council for
Trade in Services shall, through appropriate bodies it may establish,
develop any necessary disciplines. Such disciplines shall aim to ensure
that such requirements are, inter alia:
* Typically, such integration provides citizens of the parties concerned with a right of free entry to
the employment markets of the parties and includes measures concerning conditions of pay,
other conditions of employment and social benefits.
(a) based on objective and transparent criteria, such as competence and

the ability to supply the service;
(b) not more burdensome than necessary to ensure the quality of the
service;
(c) in the case of licensing procedures, not in themselves a restriction
on the supply of the service.
5. (a) Imsectors in which a Member has undertaken specific commitments,
pending the entry into force of disciplines developed in these sectors
pursuant to paragraph 4, the Member shall not apply licensing and
qualification requirements and technical standards that nullify or
impair such specific commitments in a manner which:
(1) | does not comply with the criteria outlined in sub-paragraphs
4(a), (b) or (c); and
(11) could not reasonably have been expected of that Member at
the time the specific commitments in those sectors were made.
(b) In determining whether a Member is in conformity with the
obligation under paragraph S(a), account shall be taken of interna-
tional standards of relevant international organizations’ applied by
that Member.
6. In sectors where specific commitments regarding professional services
are undertaken, each Member shall provide for adequate procedures to
verify the competence of professionals of any other Member.
Article VIT
Recognition
1. For the purposes of the fulfilment, in whole or in part, of its standards or
criteria for the authorization, licensing or certification of services
suppliers, and subject to the requirements of paragraph 3, a Member
may recognize the education or experience obtained, requirements met,
or licenses or certifications granted in a particular country. Such recogni-
tion, which may be achieved through harmonization or otherwise, may be
based upon an agreement or arrangement with the country concerned or
may be accorded autonomously.
2. A Member that is a party to an agreement or arrangement of the type
referred to in paragraph 1, whether existing or future, shall afford
adequate opportunity for other interested Members to negotiate their
accession to such an agreement or arrangement or to negotiate compar-
able ones with it. Where a Member accords recognition autonomously, it
shall afford adequate opportunity for any other Member to demonstrate
that education, experience, licenses, or certifications obtained or require-
ments met in that other Member’s territory should be recognized.
> The term ‘relevant international organizations’ refers to international bodies whose membership
is open to the relevant bodies of at least all Members of the WTO.
33 A Member shall not accord recognition in a manner which would

constitute a means of discrimination between countries in the application
of its standards or criteria for the authorization, licensing or certification
of services suppliers, or a disguised restriction on trade in services.
Each Member shall:
(a) within 12 months from the date on which the WTO Agreement
takes effect for it, inform the Council for Trade in Services of its
existing recognition measures and state whether such measures are
based on agreements or arrangements of the type referred to in
paragraph 1;
(b) promptly inform the Council for Trade in Services as far in advance
as possible of the opening of negotiations on an agreement or
arrangement of the type referred to in paragraph | in order to
provide adequate opportunity to any other Member to indicate
their interest in participating in the negotiations before they enter a
substantive phase;
(c) promptly inform the Council for Trade in Services when it adopts
new recognition measures or significantly modifies existing ones
and state whether the measures are based on an agreement or
arrangement of the type referred to in paragraph 1.
Wherever appropriate, recognition should be based on multilaterally
agreed criteria. In appropriate cases, Members shall work in cooperation
with relevant intergovernmental and non-governmental organizations
towards the establishment and adoption of common international
standards and criteria for recognition and common international stan-
dards for the practice of relevant services trades and professions.
Article VII
Monopolies and exclusive service suppliers
le Each Member shall ensure that any monopoly supplier of a service in its
territory does not, in the supply of the monopoly service in the relevant
market, act in a manner inconsistent with that Member’s obligations
under Article II and specific commitments.
Where a Member’s monopoly supplier competes, either directly or
through an affiliated company, in the supply of a service outside the scope
of its monopoly rights and which is subject to that Member’s specific
commitments, the Member shall ensure that such a supplier does not
abuse its monopoly position to act in its territory in a manner incon-
sistent with such commitments.
The Council for Trade in Services may, at the request of a Member which
has a reason to believe that a monopoly supplier of a service of any other
Member is acting in a manner inconsistent with paragraph | or 2, request
the Member establishing, maintaining or authorizing such supplier to
provide specific information concerning the relevant operations.
If, after the date of entry into force of the WTO Agreement, a Member
grants monopoly rights regarding the supply of a service covered by its

specific commitments, that Member shall notify the Council for Trade in
Services no later than three months before the intended implementation
of the grant of monopoly rights and the provisions of paragraphs 2, 3 and
4 of Article XXI shall apply.
The provisions of this Article shall also apply to cases of exclusive service
suppliers, where a Member, formally or in effect, (a) authorizes or
establishes a small number of service suppliers and (b) substantially
prevents competition among those suppliers in its territory.
Article IX
Business practices
Wi Members recognize that certain business practices of service suppliers,
other than those falling under Article VIII, may restrain competition and
thereby restrict trade in services.
Each Member shall, at the request of any other Member, enter into
consultations with a view to eliminating practices referred to in para-
graph 1. The Member addressed shall accord full and sympathetic
consideration to such a request and shall cooperate through the supply
of publicly available non-confidential information of relevance to the
matter in question. The Member addressed shall also provide other
information available to the requesting Member, subject to its domestic
law and to the conclusion of satisfactory agreement concerning the
safeguarding of its confidentiality by the requesting Member.
Article X
Emergency safeguard measures
I There shall be multilateral negotiations on the question of emergency
safeguard measures based on the principle of non-discrimination. The
results of such negotiations shall enter into effect on a date not later than
three years from the date of entry into force of the WTO Agreement.
In the period before the entry of the results of the negotiations referred to
in paragraph 1, any Member may, notwithstanding the provisions of
paragraph | of Article X XI, notify the Council on Trade in Services of its
intention to modify or withdraw a specific commitment after a period of
one year from the date on which the commitment enters into force;
provided that the Member shows cause to the Council that the modifica-
tion or withdrawal cannot await the lapse of the three-year period
provided for in paragraph | of Article XXI.
The provisions of paragraph 2 shall cease to apply three years after the
date of entry into force of the WTO Agreement.
Article XT
Payments and transfers
lie Except under the circumstances envisaged in Article XII, a Member shall
not apply restrictions on international transfers and payments for current
transactions relating to its specific commitments.
zs Nothing in this Agreement shall affect the rights and obligations of the
members of the International Monetary Fund under the Articles of
Agreement of the Fund, including the use of exchange actions which are
in conformity with the Articles of Agreement, provided that a Member
shall not impose restrictions on any capital transactions inconsistently
with its specific commitments regarding such transactions, except under
Article XII or at the request of the Fund.
Article XII
Restrictions to safeguard the balance of payments
Nie In the event of serious balance-of-payments and external financial
difficulties or threat thereof, a Member may adopt or maintain restric-
tions on trade in services on which it has undertaken specific commit-
ments, including on payments or transfers for transactions related to such
commitments. It is recognized that particular pressures on the balance of
payments of a Member in the process of economic development or
economic transition may necessitate the use of restrictions to ensure,
inter alia, the maintenance of a level of financial reserves adequate for the
implementation of its programme of economic development or economic
transition.
The restrictions referred to in paragraph 1:
(a) shall not discriminate among Members;
(b) shall be consistent with the Articles of Agreement of the Interna-
tional Monetary Fund;
(c) shall avoid unnecessary damage to the commercial, economic and
financial interests of any other Member;
(d) shall not exceed those necessary to deal with the circumstances
described in paragraph 1;
(e) shall be temporary and be phased out progressively as the situation
specified in paragraph | improves.
In determining the incidence of such restrictions, Members may give
priority to the supply of services which are more essential to their
economic or development programmes. However, such restrictions shall
not be adopted or maintained for the purpose of protecting a particular
service sector.
Any restrictions adopted or maintained under paragraph 1, or any
changes therein, shall be promptly notified to the General Council.
(a) Members applying the provisions of this Article shall consult
promptly with the Committee on Balance-of-Payments Restrictions
on restrictions adopted under this Article.
(b) The Ministerial Conference shall establish procedures‘ for periodic
consultations with the objective of enabling such recommendations
4
It is understood that the procedures under paragraph 5 shall be the same as the GATT 1994
procedures.
to be made to the Member concerned as it may deem appropriate.

(c) Such consultations shall assess the balance-of-payment situation of
the Member concerned and the restrictions adopted or maintained
under this Article, taking into account, inter alia, such factors as:
(i) the nature and extent of the balance-of-payments and the
external financial difficulties;
(i1) the external economic and trading environment of the con-
sulting Member;
(iii) alternative corrective measures which may be available.
(d) The consultations shall address the compliance of any restrictions
with paragraph 2, in particular the progressive phase-out of
restrictions in accordance with paragraph 2(e).
(ec) In such consultations, all findings of statistical and other facts
presented by the International Monetary Fund relating to foreign
exchange, monetary reserves and balance of payments, shall be
accepted and conclusions shall be based on the assessment by the
Fund of the balance-of-payments and the external financial situa-
tion of the consulting Member.
6. Ifa Member which is not a member of the International Monetary Fund
wishes to apply the provisions of this Article, the Ministerial Conference
shall establish a review procedure and any other procedures necessary.
Article XIII
Government procurement
1. Articles Il, XVI and XVII shall not apply to laws, regulations or
requirements governing the procurement by governmental agencies of
services purchased for governmental purposes and not with a view to
commercial resale or with a view to use in the supply of services for
commercial sale.
2. There shall be multilateral negotiations on government procurement in
services under this Agreement within two years from the date of entry
into force of the WTO Agreement.
Article XIV
General exceptions
Subject to the requirement that such measures are not applied in a manner
which would constitute a means of arbitrary or unjustifiable discrimination
between countries where like conditions prevail, or a disguised restriction on
trade in services, nothing in this Agreement shall be construed to prevent the
adoption or enforcement by any Member or measures:
(a) necessary to protect public morals or to maintain public order;
(b) necessary to protect human, animal or plant life or health;
> The public order exception may be invoked only where a genuine and sufficiently serious threat
is posed to one of the fundamental interests of society.
(c) necessary to secure compliance with laws or regulations which are

not inconsistent with the provisions of this Agreement including
those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal
with the effects of a default on services contracts;
(ii) the protection of the privacy of individuals in relation to the
processing and dissemination of personal data and the protec-
tion of confidentiality of individual records and accounts;
(ii1) safety;
(d) inconsistent with Article XVII, provided that the difference in
treatment is aimed at ensuring the equitable or effective® imposition
or collection of direct taxes in respect of services or service
suppliers of other Members; ;
(e) inconsistent with Article II, provided that the difference in treat-
ment is the result of an agreement on the avoidance of double
taxation or provisions on the avoidance of double taxation in any
other international agreement or arrangement by which the Mem-
ber is bound.
Article XIV
bis Security exceptions
ic Nothing in this Agreement shall be construed:
(a) to require any Member to furnish any information, the disclosure of
which it considers contrary to its essential security interests; or
(b) to prevent any Member from taking any action which it considers
necessary for the protection of its essential security interests:
(i) relating to the supply of service as carried out directly or
indirectly for the purpose of provisioning a military establish-
ment;
6
Measures that are aimed at ensuring the equitable or effective imposition or collection of direct
taxes include measures taken by a Member under its taxation system which: (i) apply to non-
resident service suppliers in recognition of the fact that the tax obligation of non-residents is
determined with respect to taxable items sourced or located in the Member’s territory; or (ii)
apply to non-residents in order to ensure the imposition or collection of taxes in the Member’s
territory; or (ii) apply to non-residents or residents in order to prevent the avoidance or evasion
of taxes, including compliance measures; or (iv) apply to consumers of services supplied in or
from the territory of another Member in order to ensure the impositionn or collection of taxes
on such consumers derived from sources in the Member’s territory; or (v) distinguish service
suppliers subject to tax on worldwide taxable items from other service suppliers, in recognition
of the difference in the nature of the tax base between them; or (vi) determine, allocate or
apportion income, profit, gain, loss, deduction or credit of resident persons or branches, or
between related persons or branches of the same person, in order to safeguard the Member’s tax
base.
Tax terms or concepts in paragraph (d) of Article XIV and in this footnote are determined
according to tax definitions and concepts, or equivalent or similar definitions and concepts,
under the domestic law of the Member taking the measure.
(ii) relating to fissionable and fusionable materials or the materi-

als from which they are derived;
(iii) taken in time of war or other emergency in international
relations; or
(c) to prevent any Member from taking any action in pursuance of its
obligations under the United Nations Charter for the maintenance
of international peace and security.
The Council for Trade in Service shall be informed to the fullest extent
possible of measures taken under paragraph 1(b) and (c) and of their
termination.
Article XV
Subsidies
ie Members recognize that, in certain circumstances, subsidies may have
distortive effects on trade in services. Members shall enter into negotia-
tions with a view to developing the necessary multilateral disciplines to
avoid such trade-distortive effects.’ The negotiations shall also address
the appropriateness of countervailing procedures. Such negotiations shall
recognize the role of subsidies in relation to the development programmes
of developing countries and take into account the needs of Members,
particularly developing country Members, for flexibility in this area. For
the purpose of such negotiations, Members shall exchange information
concerning all subsidies related to trade in services that they provide to
their domestic service suppliers.
Any Member which considers that it is adversely affected by a subsidy of
another Member may request consultation with that Member on such
matters. Such requests shall be accorded sympathetic consideration.
Part III
SPECIFIC COMMITMENTS
Article XVI
Market access
1, With respect to market access through the modes of supply identified in
Article I, each Member shall accord services and service suppliers of any
other Member treatment no less favourable than that provided for under
the terms, limitations and conditions agreed and specified in its Sche-
dule.*
In sectors where market-access commitments are undertaken, the mea-
7
A future work programme shall determine how, and in what time-frame, negotiations on such
multilateral disciplines will be conducted.
If a Member undertakes a market-access commitment in relation to the supply of a service
through the mode of supply referred to in subparagraph 2(a) of Article I and if the cross-border
movement of capital is an essential part of the service itself, that Member is thereby committed
to allow such movement of capital. If a Member undertakes a market-access commitment in
sures which a Member shall not maintain or adopt either on the basis of a
regional subdivision or on the basis of its entire territory, unless
otherwise specified in its Schedule, are defined as:
(a) limitations on the number of service suppliers whether in the form
of numerical quotas, monopolies, exclusive service suppliers or the
requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the
form of numerical quotas or the requirement of an economic needs
test;
(c) limitations on the total number of service operations or on the total
quantity of service output expressed in terms of designated numer-
ical units in the form of quotas or the requirement of an economic
needs test;?
(d) limitations on the total number of natural persons that may be
employed in a particular service sector or that a service supplier
may employ and who are necessary for, and directly related to, the
supply of a specific service in the form of numerical quotas or the
requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entity or
joint venture through which a service supplier may supply a service;
and
(f) limitations on the participation of foreign capital in terms of
maximum percentage limit on foreign share-holding or the total
value of individual or aggregate foreign investment.
Article XVII
National treatment
1p In the sectors inscribed in its Schedule, and subject to any conditions and
qualifications set out therein, each Member shall accord to services and
service suppliers of any other Member, in respect of all measures affecting
the supply of services, treatment no less favourable than that it accords to
its own like services and service suppliers.'°
A Member may meet the requirement of paragraph 1 by according to
services and service suppliers of any other Member, either formally
identical treatment or formally different treatment to that it accords to
its own like services and service suppliers.
relation to the supply of a service through the mode of supply referred to in subparagraph 2(c) of
Article I, it is therby committed to allow related transfers of capital into its territory.
Subparagraph 2(c) does not cover measures of a Member which limit inputs for the supply of
services.
Specific commitments assumed under this Article shall not be construed to require any Member
to compensate for any inherent competitive disadvantage which results from the foreign
character of the relevant services or service suppliers.
3. Formally identical or formally different treatment shall be considered to

be less favourable if it modifies the conditions of competition in favour of
services or service suppliers of the Member compared to like services or
service suppliers of any other Member.
Article XVIII
Additional commitments
Members may negotiate commitments with respect to measures affecting trade
in services not subject to scheduling under Articles XVI or XVIH, including
those regarding qualifications, standards or licensing matters. Such commit-
ments shall be inscribed in a Member’s Schedule.
PART IV
PROGRESSIVE LIBERALIZATION
Article XIX
Negotiation of specific commitments
iN In pursuance of the objectives of this Agreement, Members shall enter
into successive rounds of negotiations, beginning not later than five years
from the date of entry into force of the WTO Agreement and periodically
thereafter, with a view to achieving a progressively higher level of
liberalization. Such negotiations shall be directed to the reduction or
elimination of the adverse effects on trade in services of measures as a
means of providing effective market access. This progress shall take place
with a view to promoting the interests of all participants on a mutually
advantageous basis and to securing an overall balance of rights and
obligations.
The process of liberalization shall take place with due respect for national
policy objectives and the level of development of individual Members,
both overall and in individual sectors. There shall be appropriate
flexibility for individual developing country Members for opening fewer
sectors, liberalizing fewer types of transactions, progressively extending
market access in line with their development situation and, when making
access to their markets available to foreign service suppliers, attaching to
such access conditions aimed at achieving the objectives referred to in
Article IV.
For each round, negotiating guidelines and procedures shall be estab-
lished. For the purposes of establishing such guidelines, the Council for
Trade in Services shall carry out an assessment of trade in services in
overall terms and on a sectorial basis with reference to the objectives of
this Agreement, including those set out in paragraph | of Article IV.
Negotiating guidelines shall establish modalities for the treatment of
liberalization undertaken autonomously by Members since previous
negotiations, as well as for the special treatment for least-developed
country Members under the provisions of paragraph 3 of Article IV.
4. The process of progressive liberalization shall be advanced in each such

round through bilateral, plurilateral or multilateral negotiations directed
towards increasing the general level of specific commitments undertaken
by Members under this Agreement.
Article XX
Schedules of specific commitments
1. Each Member shall set out in a schedule the specific commitments it
undertakes under Part III of this Agreement. With respect to sectors
where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatments;
(c) undertakings relating to additional commitments;
(d) where appropriate the time-frame for implementation of such
commitments; and
(e) the date of entry into force of such commitments.
2. Measures inconsistent with both Articles XVI and XVII shall be
inscribed in the column relating to Article XVI. In this case the
inscription will be considered to provide a condition or qualification to
Article XVII as well.
3. | Schedules of specific commitments shall be annexed to this Agreement
and shall form an integral part thereof.
Article XXI
Modification of schedules
li (a) A Member (referred to in this Article as the ‘modifying Member’)
may modify or withdraw any commitment in its Schedule, at any
time after three years have elapsed from the date on which that
commitment entered into force, in accordance with the provisions
of this Article.
(b) A modifying Member shall notify its intent to modify or withdraw a
commitment pursuant to this Article to the Council for Trade in
Services no later than three months before the intended date of
implementation of the modification or withdrawal.
(a). At the request of any Member the benefits of which under this
Agreement may be affected (referred to in this Article as an ‘affected
Member’) by a proposed modification or withdrawal notified under
subparagraph 1(b), the modifying Member shall enter into negotia-
tions with a view to reaching agreement on any necessary compen-
satory adjustment. In such negotiations and agreement, the
Members concerned shall endeavour to maintain a general level of
mutually advantageous commitments not less favourable to trade
than provided for in Schedules of specific commitments prior to
such negotiations.
(b) Compensatory adjustments shall be made on a most-favoured-

nation basis.
(a) If agreement is not reached between the modifying Member and
any affected Member before the end of the period for negotiations,
such affected Member may refer the matter to arbitration. Any
affected Member that wishes to enforce a right that it may have to
compensation must participate in the arbitration.
(b) If no affected Member has requested arbitration, the modifying
Member shall be free to implement the proposed modification or
withdrawal.
(a) The modifying Member may not modify or withdraw its commit-
ment until it has made compensatory adjustments in conformity
with the findings of the arbitration.
(b) Ifthe modifying Member implements its proposed modification or
withdrawal and does not comply with the findings of the arbitra-
tion, any affected Member that participated in the arbitration may
modify or withdraw substantially equivalent benefits in conformity
with those findings. Notwithstanding Article II, such a modification
or withdrawal may be implemented solely with respect to the
modifying Member.
The Council for Trade in Services shall establish procedures for rectifica-
tion or modification of Schedules. Any Member which has modified or
withdrawn scheduled commitments under this Article shall modify its
Schedule according to such procedures.
PART V
INSTITUTIONAL PROVISIONS
Article XXII
Consultation
ie Each Member shall accord sympathetic consideration to, and shall afford
adequate opportunity for, consultation regarding such representations as
may be made by any other Member with respect to any matter affecting
the operation of this Agreement. The Dispute Settlement Understanding
(DSU) shall apply to such consultations.
The Council for Trade in Services or the Dispute Settlement Body (DSB)
may, at the request of a Member, consult with any Member or Members
in respect of any matter for which it has not been possible to find a
satisfactory solution through consultation under paragraph 1.
A Member may not invoke Article XVII, either under this Article or
Article X XIII, with respect to a measure of another Member that falls
within the scope of an international agreement between them relating to
the avoidance of double taxation. In case of disagreement between
Members as to whether a measure falls within the scope of such an
agreement between them, it shall be open to either Member to bring this
matter before the Council for Trade in Services.'! The Council shall refer
the matter to arbitration. The decision of the arbitrator shall be final and
binding on the Members.
Article XXTIT
Dispute settlement and enforcement
1. | If any Member should consider that any other Member fails to carry out
its obligations or specific commitments under this Agreement, it may
with a view to reaching a mutually satisfactory resolution of the matter
have recourse to the DSU.
2. If the DSB considers that the circumstances are serious enough to justify
such action, it may authorize a Member or Members to suspend the
application to any other Member or Members of obligations and specific
commitments in accordance with Article 22 of the DSU.
3. If any Member considers that any benefit it could reasonably have
expected to accrue to it under a specific commitment of another Member
under Part III of this Agreement is being nullified or impaired as a result
of the application of any measure which does not conflict with the
provisions of this Agreement, it may have recourse to the DSU. If the
measure is determined by the DSB to have nullified or impaired such a
benefit, the Member affected shall be entitled to a mutually satisfactory
adjustment on the basis of paragraph 2 of Article XXI, which may
include the modification or withdrawal of the measure. In the event an
agreement cannot be reached between the Members concerned, Article
22 of the DSU shall apply.
Article XXIV
Council for trade in services
1. The Council for Trade in Services shall carry out such functions as may
be assigned to it to facilitate the operation of this Agreement and further
its objectives. The Council may establish such subsidiary bodies as it
considers appropriate for the effective discharge of its functions.
2. The Council and, unless the Council decides otherwise, its subsidiary
bodies shall be open to participation by representatives of all Members.
3. | The Chairman of the Council shall be elected by the Members.
Article XXV
Technical cooperation
1. Service suppliers of Members which are in need of such assistance shall
have access to the services of contact points referred to in paragraph 2 of
Article IV.
'! With respect to agreements on the avoidance of double taxation which exist on the date of entry
into force of the WTO Agreements, such a matter may be brought before the Council for Trade
in Services only with the consent of both parties to such an agreement.
2. Technical assistance to developing countries shall be provided at the

multilateral level by the Secretariat and shall be decided upon by the
Council for Trade in Services.
Article XX VI
Relationship with other international organizations
The General Council shall make appropriate arrangements for consultation
and cooperation with the United Nations and its specialized agencies as well as
with other intergovernmental organizations concerned with services.
ParT VI
FINAL PROVISIONS
Article XXVII
Denial of benefits
A Member may deny the benefits of this Agreement:
(a) to the supply of a service, if it establishes that the service is supplied from
or in the territory of a non-Member or of a Member to which the denying
Member does not apply the WTO Agreement;
(b) in the case of the supply of a maritime transport service, if it establishes
that the service is supplied:
(3) by a vessel registered under the laws of a non-Member or of a
Member to which the denying Member does not apply the WTO
Agreement, and
(ii) by a person which operates and/or uses the vessel in whole or in
part but which is of a non-Member or of a Member to which the
denying Member does not apply the WTO Agreement;
(c) toaservice supplier that is a juridical person, if it establishes that it is not
a service supplier of another Member, or that it is a service supplier of a
Member to which the denying Member does not apply the WTO
Agreement.
Article XXVIII
Definitions
For the purpose of this Agreement:
(a) ‘measure’ means any measure by a Member, whether in the form of a law,
regulation, rule, procedure, decision, administrative action, or any other
form;
(b) ‘supply of service’ includes the production, distribution, marketing, sale
and delivery of a service;
(c) ‘measures by Members affecting trade in services’ include measures in
respect of
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the supply of a service,
services which are required by those Members to be offered to the

public generally;
(iii) the presence, including commercial presence, of persons of a
Member for the supply of a service in the territory of another
Member;
(d) ‘commercial presence’ means any type of business or professional

establishment, including through
(i) the constitution, acquisition or maintenance of a juridicial person,
or
(ii) the creation or maintenance of a branch or a representative office,
within the territory of a Member for the purpose of supplying a
service;
(e) ‘sector’ of a service means,
(i) with reference to a specific commitment, one or more, or all,
subsectors of that service, as specified in a Member’s Schedule,
(ii) otherwise, the whole of that service sector, including all of its
subsectors;
(f) ‘service of another Member’ means a service which is supplied,

(i) from or in the territory of that other Member, or in the case of
maritime transport, by a vessel registered under the laws of that
other Member, or by a person of that other Member which supplies
the service through the operation of a vessel and/or its use in whole
or in part; or
(ii) in the case of the supply of a service through commercial presence
or through the presence of natural persons, by a service supplier of
that other Member;
(g) ‘service supplier’ means any person that supplies a service;'7

(h) ‘monopoly supplier of a service’ means any person, public or private,
which in the relevant market of the territory of a Member is authorized or
established formally or in effect by that Member as the sole supplier of
that service;
(i) ‘service consumer’ means any person that receives or uses a service;
‘person’ means either a natural person or a juridical person;
(k) ‘natural person of another Member’ means a natural person who resides
in the territory of that other Member or any other Member, and who
under the law of that other Member:
'2 Where the service is not supplied directly by a juridical person but through other forms of
commercial presence such as a branch or a representative office, the service supplier (i.e. the
juridical person) shall, nonetheless, through such presence be accorded the treatment provided
for service suppliers under the Agreement. Such treatment shall be extended to the presence
through which the service is supplied and need not be extended to any other parts of the supplier
located outside the territory where the service is supplied.
(i) is a national of that other Member; or

(ii) has the right of permanent residence in that other Member, in the
case of a Member which:
1. does not have nationals; or
2. accords substantially the same treatment to its permanent
residents as it does to its nationals in respect of measures
affecting trade in services, as notified in its acceptance of or
accession to the WTO Agreement, provided that no Member
is obligated to accord to such permanent residents treatment
more favourable than would be accorded by that other
Member to such permanent residents. Such notification shall
include the assurance to assume, with respect to those
permanent residents, in accordance with its laws and regula-
tions, the same responsibilities that other Member bears with
respect to its nationals;
(1) ‘juridical person’ means any legal entity duly constituted or otherwise
organized under applicable law, whether for profit or otherwise, and
whether privately-owned or governmentally-owned, including any cor-
poration, trust, partnership, joint venture, sole proprietorship or associa-
tion;
(m) ‘juridical person of another Member’ means a juridical person which is
either:
(1) constituted or otherwise organized under the law of that other
Member, and is engaged in substantive business operations in the
territory of that Member or any other Member; or
(ii) in the case of the supply of a service through commercial presence,
owned or controlled by:
1. natural persons of that Member; or
2. juridical persons of that other Member identified under
subparagraph (1);
(n) a juridical person is:
(i) ‘owned’ by persons of a Member if more than 50 per cent of the
equity interest in it is beneficially owned by persons of that
Member;
(ii) ‘controlled’ by persons of a Member if such persons have the power
to name a majority of its directors or otherwise to legally direct its
actions;
(iii) ‘affiliated’ with another person when it controls, or is controlled by,
that other person; or when it and the other person are both
controlled by the same person;
(0) ‘direct taxes’ comprise all taxes on total income, on total capital or on
elements of income or of capital, including taxes on gains from the
alienation of property, taxes on estates, inheritances and gifts, and taxes

on the total amounts of wages or salaries paid by enterprises, as well as
taxes on capital appreciation.
Article XXIX
Annexes
The Annexes to this Agreement are an integral part of this Agreement.
ANNEX ON ARTICLE II EXEMPTIONS
Scope
I! This Annex specifies the conditions under which a Member, at the entry
into force of this Agreement, is exempted from its obligations under
paragraph | of Article II.
Any new exemptions applied for after the date of entry into force of the
WTO Agreement shall be dealt with under paragraph 3 of Article IX of
that Agreement.
Review
S: The Council for Trade in Services shall review all exemptions granted for
a period of more than 5 years. The first such review shall take place no
more than 5 years after the entry into force of the WTO Agreement.
The Council of Trade in Services in a review shall:
(a) examine whether the conditions which created the need for the
exemption still prevail; and
(b) determine the date of any further review.
Termination
>) The exemption of a Member from its obligation under paragraph 1 of
Article II of the Agreement with respect to a particular measure
terminates on the date provided for in the exemption.
In principle, such exemptions should not exceed a period of 10 years. In
any event, they shall be subject to negotiation in subsequent trade
liberalizing rounds.
A Member shall notify the Council for Trade in Services at the termina-
tion of the exemption period that the inconsistent measure has been
brought into conformity with paragraph | of Article II of the Agreement.
Lists of Article IT exemptions
[The agreed lists of exemptions under paragraph 2 of Article II appear as part
of this Annex in the treaty copy of the WTO Agreement]
ANNEX ON TELECOMMUNICATIONS,
GENERAL AGREEMENT ON TRADE IN SERVICES (GATS), APRIL 1994
1. Objectives
Recognizing the specificities of the telecommunications services sector and, in
particular, its dual role as a distinct sector of economic activity and as the
underlying transport means for other economic activities, the Members have
agreed to the following Annex with the objective of elaborating upon the
provisions of the Agreement with respect to measures affecting access to and
use of public telecommunications transport networks and services. Accord-
ingly, this Annex provides notes and supplementary provisions to the Agree-
ment.
2. »SCOPE
(a) This Annex shall apply to all measures of a Member that affect access to
and use of public telecommunications transport networks and services.
See footnote |
(b) This Annex shall not apply to measures affecting the cable or broadcast
distribution of radio or television programming.
(c) Nothing in this Annex shall be construed:
(i) | to require a Member to authorize a service supplier of any other
Member to establish, construct, acquire, lease, operate, or supply
telecommunications transport networks or services, other than as
provided for in its Schedule; or
(ii) to require a Member (or to require a Member to oblige service
suppliers under its jurisdiction) to establish, construct, acquire,
lease, operate or supply telecommunications transport networks or
services not offered to the public generally.
3. Definitions
For the purposes of this Annex:
(a) “Telecommunications’ means the transmission and reception of signals by
any electromagnetic means.
(b) ‘Public telecommunications transport service’ means any telecommuni-
cations transport service required, explicitly or in effect, by a Member to
be offered to the public generally. Such services may include, inter alia,
telegraph, telephone, telex, and data transmission typically involving the
real-time transmission of customer-supplied information between two or
more points without any end-to-end change in the form or content of the
customer’s information.
(c) ‘Public telecommunications transport network’ means the public tele-
communications infrastructure which permits telecommunications be-
tween and among defined network termination points.
(d) ‘Intra-corporate communications’ means telecommunications through
643
which a company communicates within the company or with or among

its subsidiaries, branches and, subject to a Member’s domestic laws and
regulations, affiliates. For these purposes, ‘subsidiaries’, ‘branches’ and,
where applicable, ‘affiliates’ shall be as defined by each Member. ‘Intra-
corporate communications’ in this Annex excludes commercial or non-
commercial services that are supplied to companies that are not related
subsidiaries, branches or affiliates, or that are offered to customers or
potential customers.
(e) Any reference to a paragraph or subparagraph of this Annex includes all
subdivisions thereof.
4. Transparency
In the application of Article III of the Agreement, each Member shall ensure
that relevant information on conditions affecting access to and use of public
telecommunications transport networks and services is publicly available,
including: tariffs and other terms and conditions of service; specifications of
technical interfaces with such networks and services; information on bodies
responsible for the preparation and adoption of standards affecting such access
and use; conditions applying to attachment of terminal or other equipment;
and notifications, registration or licensing requirements, if any.
5. Access to and use of Public Telecommunications Transport Networks and

Services
(a) Each Member shall ensure that any service supplier of any other Member
is accorded access to and use of public telecommunications transport
networks and services on reasonable and non-discriminatory terms and
conditions, for the supply of a service included in its Schedule. This
obligation shall be applied, inter alia, through paragraphs (b) through (f).
See footnote 2
(b) Each Member shall ensure that service suppliers of any other Member
have access to and use of any public telecommunications transport
network or service offered within or across the border of that Member,
including private leased circuits, and to this end shall ensure, subject to
paragraphs (e) and (f), that such suppliers are permitted:
(i) to purchase or lease and attach terminal or other equipment which
interfaces with the network and which is necessary to supply a
supplier’s services;
(ii) to interconnect private leased or owned circuits with public tele-
communications transport networks and services or with circuits
leased or owned by another service supplier; and
(ili) to use operating protocols of the service supplier’s choice in the
supply of any service, other than as necessary to ensure the
availability of telecommunications transport networks and services
to the public generally.
Annex on Telecommunications 645
(c) Each Member shall ensure that service suppliers of any other Member
may use public telecommunications transport networks and services for
the movement of information within and across borders, including for
intra-corporate communications of such service suppliers, and for access
to information contained in data bases or otherwise stored in machine-
readable form in the territory of any Member. Any new or amended
measures of a Member significantly affecting such use shall be notified
and shall be subject to consultation, in accordance with relevant provi-
sions of the Agreement.
(d) Notwithstanding the preceding paragraph, a Member may take such
measures as are necessary to ensure the security and confidentiality of
messages, subject to the requirement that such measures are not applied
in a manner which would constitute a means of arbitrary or unjustifiable
discrimination or a disguised restriction on trade in services.
() Each Member shall ensure that no condition is imposed on access to and
use of public telecommunications transport networks and services other
than as necessary:
(i) to safeguard the public service responsibilities of suppliers of public
telecommunications transport networks and services, in particular
their ability to make their networks or services available to the
public generally;
(ii) to protect the technical integrity of public telecommunications
transport networks or services; or
(iii) to ensure that service suppliers of any other Member do not supply
services unless permitted pursuant to commitments in the Mem-
ber’s Schedule.
(f) Provided that they satisfy the criteria set out in paragraph (e), conditions
for access to and use of public telecommunications transport networks
and services may include:
(i) _ restrictions on resale or shared use of such services;
(ii) a requirement to use specified technical interfaces, including inter-
face protocols, for inter-connection with such networks and ser-
vices;
(iii) requirements, where necessary, for the inter-operability of such
services and to encourage the achievement of the goals set out in
paragraph 7(a);
(iv) type approval of terminal or other equipment which interfaces with
the network and technical requirements relating to the attachment
of such equipment to such networks;
(v) restrictions on inter-connection of private leased or owned circuits
with such networks or services or with circuits leased or owned by
another service supplier; or
(vi) notification, registration and licensing.
(g) Notwithstanding the preceding paragraphs of this section, a developing

country Member may, consistent with its level of development, place
reasonable conditions on access to and use of public telecommunications
transport networks and services necessary to strengthen its domestic
telecommunications infrastructure and service capacity and to increase
its participation in international trade in telecommunications services.
Such conditions shall be specified in the Member’s Schedule.
6. Technical Cooperation
(a) Members recognize that an efficient, advanced telecommunications
infrastructure in countries, particularly developing countries, is essential
to the expansion of their trade in services. To this end, Members endorse
and encourage the participation, to the fullest extent practicable, of
developed and developing countries and their suppliers of public tele-
communications transport networks and services and other entities in the
development programmes of international and regional organizations,
including the International Telecommunication Union, the United Na-
tions Development Programme, and the International Bank for Recon-
struction and Development.
(b) Members shall encourage and support telecommunications cooperation
among developing countries at the international, regional and sub-
regional levels.
(c) In cooperation with relevant international organizations, Members shall
make available, where practicable, to developing countries information
with respect to telecommunications services and developments in tele-
communications and information technology to assist in strengthening
their domestic telecommunications services sector.
(d) Members shall give special consideration to opportunities for the least-
developed countries to encourage foreign suppliers of telecommunica-
tions services to assist in the transfer of technology, training and other
activities that support the development of their telecommunications
infrastructure and expansion of their telecommunications services trade.
Te Relation to International Organizations and Agreements

(a) Members recognize the importance of international standards for global
compatibility and inter-operability of telecommunication networks and
services and undertake to promote such standards through the work of
relevant international bodies, including the International Telecommuni-
cation Union and the International Organization for Standardization.
(b) Members recognize the role played by intergovernmental and non-
governmental organizations and agreements in ensuring the efficient
operation of domestic and global telecommunications services, in parti-
cular the International Telecommunication Union. Members shall make
appropriate arrangements, where relevant, for consultation with such
organizations on matters arising from the implementation of this Annex.
Annex on Telecommunications 647
Footnote: 1.
This paragraph is understood to mean that each Member shall ensure that the
obligations of this Annex are applied with respect to suppliers of public
telecommunications transport networks and services by whatever measures
are necessary.
Footnote: 2.
The term ‘non-discriminatory’ is understood to refer to most-favoured-nation
and national treatment as defined in the Agreement, as well as to reflect sector-
specific usage of the term to mean ‘terms and conditions no less favourable
than those accorded to any other user of like public telecommunications
transport networks or services under like circumstances’.
NEGOTIATING GROUP ON BASIC TELECOMMUNICATIONS, 24 APRIL 1996
REFERENCE PAPER
Scope
The following are definitions and principles on the regulatory framework for
the basic telecommunications services.
Definitions
Users mean service consumers and service suppliers.
Essential facilities mean facilities of a public telecommunications transport
network or service that
(a) are exclusively or predominantly provided by a single or limited number
of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to
provide a service.
A major supplier is a supplier which has the ability to materially affect the terms
of participation (having regard to price and supply) in the relevant market for
basic telecommunications services as a result of:
(a) control over essential facilities; or
(b) use of its position in the market.
i Competitive safeguards
ae Prevention of anti-competitive practices in telecommunications
Appropriate measures shall be maintained for the purpose of preventing
suppliers who, alone or together, are a major supplier from engaging in or
continuing anti-competitive practices.
Safeguards
The anti-competitive practices referred to above shall include in particu-
lar:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive
results; and
(c) not making available to other services suppliers on a timely basis
technical information about essential facilities and commercially
relevant information which are necessary for them to provide
services.
Interconnection
This section applies to linking with suppliers providing public telecom-
munications transport networks or services in order to allow the users of
one supplier to communicate with users of another supplier and to access
services provided by another supplier, where specific commitments are
undertaken.
648
2.2. Interconnection to be ensured

Interconnection with a major supplier will be ensured at any technically
feasible point in the network. Such interconnection is provided.
(a) under non-discriminatory terms, conditions (including technical
standards and specifications) and rates and of a quality no less
favourable than that provided for its own like services or for like
services of non-affiliated service suppliers or for its subsidiaries or
other affiliates;
(b) in a timely fashion, on terms, conditions (including technical
standards and specifications) and cost-oriented rates that are
transparent, reasonable, having regard to economic feasibility, and
sufficiently unbundled so that the supplier need not pay for network
components or facilities that it does not require for the service to be
provided; and
(c) upon request, at points in addition to the network termination
points offered to the majority of users, subject to charges that reflect
the cost of construction of necessary additional facilities.
2.3. Public availability of the procedures for interconnection negotiations
The procedures applicable for interconnection to a major supplier will be
made publicly available.
2.4. Transparency of interconnection arrangements
It is ensured that a major supplier will make publicly available either its
interconnection agreements or a reference interconnection offer.
2.5. Interconnection: dispute settlement
A service supplier requesting interconnection with a major supplier will
have recourse, either:
(a) at any time or
(b) after a reasonable period of time which has been made publicly
known to an independent domestic body, which may be a regula-
tory body as referred to in paragraph 5 below, to resolve disputes
regarding appropriate terms, conditions and rates for interconnec-
tion within a reasonable period of time, to the extent that these have
not been established previously.
3. Universal service
Any Member has the right to define the kind of universal service obligation it
wishes to maintain. Such obligations will not be regarded as anti-competitive
per se, provided they are administered in a transparent, non-discriminatory
and competitively neutral manner and are not more burdensome than
necessary for the kind of universal service defined by the Member.
4. Public availability of licensing criteria

Where a licence is required, the following will be made publicly available:
Negotiating Group on Basic Telecommunications, 24 April 1996 650
(a) all the licensing criteria and the period of time normally required to reach
a decision concerning an application for a licence and
(b) the terms and conditions of individual licences.
The reasons for the denial of a licence will be made known to the
applicant upon request.
5. Independent regulators
The regulatory body is separate from, and not accountable to, any supplier of
basic telecommunications services. The decisions of and the procedures used
by regulators shall be impartial with respect to all market participants.
6. Allocation and use of scarce resources
Any procedures for the allocation and use of scarce resources, including
frequencies, numbers and rights of way, will be carried out in an objective,
timely, transparent and non-discriminatory manner. The current state of
allocated frequency bands will be made publicly available, but detailed
identification of frequencies allocated for specific government uses is not
required.
S/L/20
30 April 1996
Trade in Services
FOURTH PROTOCOL TO THE GENERAL AGREEMENT ON TRADE IN SERVICES
Members of the World Trade Organization (hereinafter referred to as the

“‘WTO’) whose Schedules of Specific Commitments and Lists of Exemptions
from Article II of the General Agreement on Trade in Services concerning
basic telecommunications are annexed to this Protocol (hereinafter referred to
as ‘Members concerned’),
Having carried out negotiations under the terms of the Ministerial Decision on
Negotiations on Basic Telecommunications adopted at Marrakesh on 15 April
1994,
Having regard to the Annex on Negotiations on Basic Telecommunications,
Agree as follows:
Upon the entry into force of this Protocol, a Schedule of Specific Commitments
and a List of Exemptions from Article II concerning basic telecommunications
annexed to this Protocol relating to a Member shall, in accordance with the
terms specified therein, supplement or modify the Schedule of Specific
Commitments and the List of Article II Exemptions of that Member.
This Protocol shall be open for acceptance, by signature or otherwise, by the
Members concerned until 30 November 1997.
The Protocol shall enter into force on 1 January 1998 provided it has been
accepted by all Members concerned. If by 1 December 1997 the Protocol has
not been accepted by all Members concerned, those Members which have
accepted it by that date may decide, prior to 1 January 1998, on its entry into
force.
This Protocol shall be deposited with the Director-General of the WTO. The
Director-General of the WTO shall promptly furnish to each Member of the
WTO a certified copy of this Protocol and notifications of acceptances thereof.
This Protocol shall be registered in accordance with the provisions of Article

102 of the Charter of the United Nations.
Done at Geneva on 15 April One thousand nine hundred and ninety-seven, in a
single copy in the English, French and Spanish languages, each text being
authentic, except as otherwise provided for in respect of the Schedules annexed
hereto.
651
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2.1. EUROPEAN UNION (E.U.)
COUNCIL DIRECTIVE OF 3 NOVEMBER I986 ON THE ADOPTION OF COMMON

TECHNICAL SPECIFICATIONS OF THE MAC/PACKET FAMILY OF STANDARDS FOR
DIRECT SATELLITE TELEVISION BROADCASTING (86/529/EEC)
Offical Journal No. L311/28, 06/11/87

and in particular Article 100 thereof,
Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social Committee,
Whereas, in the near future, satellites for direct television broadcasting will be
brought into service by several European countries and subsequently new
television sets corresponding to public needs will be introduced by the
manufacturers;
Whereas the use of common technical specifications for direct satellite broad-
casting of television programmes and possibly for their redistribution by cable
is necessary in order to attain the objectives set out hereafter;
Whereas the implementation of common technical specifications simplifies the

broadcasting of television programmes in all countries of the Community and
makes a significant contribution to European unification and to the develop-
ment of a true European identity;
Whereas the technical capability to transmit simultaneously on several sound
channels opens the way to truly pan-European multilingual television pro-
grammes;
Whereas the implementation of common technical specifications leads to the
creation of a large unified market, on which products will be freely exchanged
without any technical barriers, which will be of great economic benefit for the
European consumer electronics industry as regards its competitiveness;
Whereas it is indispensable that a guarantee be given to manufacturers and
operators in respect of their investments and supplies, by the application of
common technical standards at Community level;
655
656 Broadcasting
Whereas the European Broadcasting Union (EBU) and the European manu-
facturers of the relevant branch represented by their associations have
perfected and published technical specifications forming part of the MAC/
packet family for the direct television broadcasting and the redistribution of
programmes by cable; whereas these specifications have been confirmed at
international level by the International Radio Consultative Committee
(CCIR);
Whereas the MAC/packet family now includes:
— for direct satellite broadcasting: the system C-MAC/packet and the
system D2-MAC/packet with frequency modulation,
— for cable distribution: the system D-MAC/packet and the system D2-
MAC/packet;
Whereas these systems are very largely compatible with each other on the
operational level;
Whereas, in view of the foreseeable technical progress in this sector, account
should now be taken of any subsequent developments of the existing systems
and provision made for an eventual review of this Directive,

Article 1
For direct operational satellite television broadcasting, and subsequent redis-
tribution by cable, Member States shall take all measures by law or adminis-
trative action to ensure the use of only the following systems:
— in the case of direct broadcasting by satellite of television programmes,
the MAC/packet systems referred to in the first indent and note 2 of
recommendation AE/650 of the CCIR entitled Television standard for
satellite broadcasting in the channels defined by WARC BS-77 and
RARC SAT-83, approved at the 16th plenary assembly at Dubrovnik,
May 1986 (i.e. the C-MAC/packet system or the D2-MAC/packet
system),
— in the case of redistribution by cable of these programmes, the MAC
cable system corresponding to the satellite broadcasting system should be
preferred. However, television redistribution by cable may continue to
use existing techniques, conversion from the MAC/packet system used
for the satellite broadcast link being made at the receiver terminal
incorporated in the cable network,
- any systems which evolve from those MAC/packet systems referred to in
the first and second indent, which are subsequently defined by the
European standardization bodies and/or the competent international
bodies and which are operationally compatible with them.
Member states shall select the system or systems of the MAC/packet family
which is or are more appropriate to the present or future structure of their
80/529/EEC 657
direct broadcasting by satellite or cable distribution networks and shall inform

the Commission of their selection.
Article2
For the purposes of this Directive, direct broadcasting by satellite means a
broadcasting satellite service as defined in the Radio Regulations of the
International Telecommunications Union, i.e. using channels assigned to
Member States in the 11,7 to 12,5 Ghz band at the World Broadcasting
Satellite Administrative Radio Conference (Geneva 1977) and intended for
display on 625 lines domestic TV receivers.
Article 3
This Directive shall apply until 31 December 1991 at the latest. The Commis-
sion is invited to submit to the Council, in advance of that date, proposals for
measures to be adopted for the replacement of this Directive.
Article 4
Offical Journal No. L311/28, 06/11/87
Done at Brussels, 3 November 1986.

For the Council
The President
A. CLARK
CoUNCIL DIRECTIVE OF 3 OCTOBER 1989 ON THE COORDINATION OF CERTAIN
PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN
MEMBER STATES CONCERNING THE PURSUIT OF TELEVISION BROADCASTING
ACTIVITIES (89/552/EEC)
Official Journal No. L 298, 17/10/1989 P. 0023-0030

Incorporated by 294A0103(60) (OJ L 001 03.01.94 p.417)
Amended by 397L0036 (OJ L 202 30.07.97 p.60)

and in particular Articles 57 (2) and 66 thereof,
Whereas the objectives of the Community as laid down in the Treaty include
establishing an even closer union among the peoples of Europe, fostering closer
relations between the States belonging to the Community, ensuring the
economic and social progress of its countries by common action to eliminate
the barriers which divide Europe, encouraging the constant improvement of
the living conditions of its peoples as well as ensuring the preservation and
strengthening of peace and liberty;
Whereas the Treaty provides for the establishment of a common market,
including the abolition, as between Member States, of obstacles to freedom of
movement for services and the institution of a system ensuring that competi-
tion in the common market is not distorted;
Whereas broadcasts transmitted across frontiers by means of various technol-

ogies are one of the ways of pursuing the objectives of the Community; whereas
measures should be adopted to permit and ensure the transition from national
markets to a common programme production and distribution market and to
establish conditions of fair competition without prejudice to the public interest
role to be discharged by the television broadcasting services;
Whereas the Council of Europe has adopted the European Convention on
Transfrontier Television;
Whereas the Treaty provides for the issuing of directives for the coordination of
provisions to facilitate the taking up of activities as self-employed persons;
Whereas television broadcasting constitutes, in normal circumstances, a

service within the meaning of the Treaty;
658
659 Broadcasting
Whereas the Treaty provides for free movement of all services normally
provided against payment, without exclusion on grounds of their cultural or
other content and without restriction of nationals of Member States estab-
lished in a Community country other than that of the person for whom the
services are intended;
Whereas this right as applied to the broadcasting and distribution of television

services is also a specific manifestation in Community law of a more general
principle, namely the freedom of expression as enshrined in Article 10 (1) of the
Convention for the Protection of Human Rights and Fundamental Freedoms
ratified by all Member States; whereas for this reason the issuing of directives
on the broadcasting and distribution of television programmes must ensure
their free movement in the light of the said Article and subject only to the limits
set by paragraph 2 of that Article and by Article 56 (1) of the Treaty;
Whereas the laws, regulations and administrative measures in Member States
concerning the pursuit of activities as television broadcasters and cable
operators contain disparities, some of which may impede the free movement
of broadcasts within the Community and may distort competition within the
common market;
Whereas all such restrictions on freedom to provide broadcasting services

within the Community must be abolished under the Treaty;
Whereas such abolition must go hand in hand with coordination of the
applicable laws; whereas this coordination must be aimed at facilitating the
pursuit of the professional activities concerned and, more generally, the free
movement of information and ideas within the Community;
Whereas it is consequently necessary and sufficient that all broadcasts comply
with the law of Member State from which they emanate;
Whereas this Directive lays down the minimum rules needed to guarantee
freedom of transmission in broadcasting; whereas, therefore, it does not affect
the responsibility of the Member States and their authorities with regard to the
organization — including the systems of licensing, administrative authorization
or taxation — financing and the content of programmes; whereas the indepen-
dence of cultural developments in the Member States and the preservation of
cultural diversity in the Community therefore remain unaffected;
Whereas it is necessary, in the common market, that all broadcasts emanating

from and intended for reception within the Community and in particular those
intended for reception in another Member State, should respect the law of the
originating Member State applicable to broadcasts intended for reception by
the public in that Member State and the provisions of this Directive;
Whereas the requirement that the originating Member State should verify that
broadcasts comply with national law as coordinated by this Directive is
sufficient under Community law to ensure free movement of broadcasts
89/552/EEC 660
without secondary control on the same grounds in the receiving Member

States; whereas, however, the receiving Member State may, exceptionally and
under specific conditions provisionally suspend the retransmission of televised
broadcasts;
Whereas it is essential for the Member States to ensure the prevention of any
acts which may prove detrimental to freedom of movement and trade in
television programmes or which may promote the creation of dominant
positions which would lead to restrictions on pluralism and freedom of
televised information and of the information sector as a whole;
Whereas this Directive, being confined specifically to television broadcasting
rules, is without prejudice to existing or future Community acts of harmoniza-
tion, in particular to satisfy mandatory requirements concerning the protection
of consumers and the fairness of commercial transactions and competition;
Whereas co-ordination is nevertheless needed to make it easier for persons and

industries producing programmes having a cultural objective to take up and
pursue their activities;
Whereas minimum requirements in respect of all public or private Community

television programmes for European audio-visual productions have been a
means of promoting production, independent production and distribution in
the abovementioned industries and are complementary to other instruments
which are already or will be proposed to favour the same objective;
Whereas it is therefore necessary to promote markets of sufficient size for

television productions in the Member States to recover necessary investments
not only by establishing common rules opening up national markets but also by
envisaging for European productions where practicable and by appropriate
means a majority proportion in television programmes of all Member States;
whereas, in order to allow the monitoring of the application of these rules and
the pursuit of the objectives, Member States will provide the Commission with
a report on the application of the proportions reserved for European works and
independent productions in this Directive; whereas for the calculation of such
proportions account should be taken of the specific situation of the Hellenic
Republic and the Portuguese Republic; whereas the Commission must inform
the other Member States of these reports accompanied, where appropriate by
an opinion taking account of, in particular, progress achieved in relation to
previous years, the share of first broadcasts in the programming, the particular
circumstances of new television broadcasters and the specific situation of
countries with a low audio-visual production capacity or restricted language
area;
Whereas for these purposes ‘European works’ should be defined without
prejudice to the possibility of Member States laying down a more detailed
definition as regards television broadcasters under their jurisdiction in accor-
dance with Article 3 (1) in compliance with Community law and account being
661 Broadcasting
taken of the objectives of this Directive; Whereas it is important to seek

appropriate instruments and procedures in accordance with Community law
in order to promote the implementation of these objectives with a view to
adopting suitable measures to encourage the activity and development of
European audio-visual production and distribution, particularly in countries
with a low production capacity or restricted language area;
Whereas national support schemes for the development of European produc-
tion may be applied in so far as they comply with Community law;
Whereas a commitment, where practicable, to a certain proportion of broad-
casts for independent productions, created by producers who are independent
of broadcasters, will stimulate new sources of television production, especially
the creation of small and medium-sized enterprises; whereas it will offer new
opportunities and outlets to the marketing of creative talents of employment of
cultural professions and employees in the cultural field; whereas the definition
of the concept of independent producer by the Member States should take
account of that objective by giving due consideration to small and medium-
sized producers and making it possible to authorize financial participation by
the coproduction subsidiaries of television organizations;
Whereas measures are necessary for Member States to ensure that a certain
period elapses between the first cinema showing of a work and the first
television showing;
Whereas in order to allow for an active policy in favour of a specific language,

Member States remain free to lay down more detailed or stricter rules in
particular on the basis of language criteria, as long as these rules are in
conformity with Community law, and in particular are not applicable to the
retransmission of broadcasts originating in other Member States;
Whereas in order to ensure that the interests of consumers as television viewers
are fully and properly protected, it is essential for television advertising to be
subject to a certain number of minimum rules and standards and that the
Member States must maintain the right to set more detailed or stricter rules
and in certain circumstances to lay down different conditions for television
broadcasters under their jurisdiction;
Whereas Member States, with due regard to Community law and in relation to
broadcasts intended solely for the national territory which may not be received,
directly or indirectly, in one or more Member States, must be able to lay down
different conditions for the insertion of advertising and different limits for the
volume of advertising in order to facilitate these particular broadcasts;
Whereas it is necessary to prohibit all television advertising promoting

cigarettes and other tobacco products including indirect forms of advertising
which, whilst not directly mentioning the tobacco product, seek to circumvent
the ban on advertising by using brand names, symbols or other distinctive
89/552/EEC 662
features of tobacco products or of undertakings whose known or main

activities include the production or sale of such products;
Whereas it is equally necessary to prohibit all television advertising for
medicinal products and medical treatment available only on prescription in
the Member State within whose jurisdiction the broadcaster falls and to
introduce strict criteria relating to the television advertising of alcoholic
products;
Whereas in view of the growing importance of sponsorship in the financing of
programmes, appropriate rules should be laid down;
Whereas it is, furthermore, necessary to introduce rules to protect the physical,
mental and moral development of minors in programmes and in television
advertising;
Whereas although television broadcasters are normally bound to ensure that
programmes present facts and events fairly, it is nevertheless important that
they should be subject to specific obligations with respect to the right of reply
or equivalent remedies so that any person whose legitimate interests have been
damaged by an assertion made in the course of a broadcast television
programme may effectively exercise such right or remedy.

CHAPTER I
Definitions
Article 1
For the purpose of this Directive:
(a) ‘television broadcasting’ means the initial transmission by wire or over
the air, including that by satellite, in unencoded or encoded form, of
television programmes intended for reception by the public. It includes
the communication of programmes between undertakings with a view to
their being relayed to the public. It does not include communication
services providing items of information or other messages on individual
demand such as telecopying, electronic data banks and other similar
Services;
(b) ‘television advertising’ means any form of announcement broadcast in
return for payment or for similar consideration by a public or private
undertaking in connection with a trade, business, craft or profession in
order to promote the supply of goods or services, including immovable
property, or rights and obligations, in return for payment.
()” OJ No’ C179, 17. 7. 1986, p: 4.

(2) OJ No C49, 22. 2. 1988, p. 53, and OJ No C 158, 26. 6. 1989.
(3) OJ No C 232, 31. 8. 1987, p. 29.
663 Broadcasting
Except for the purposes of Article 18, this does not include direct offers to the
public for the sale, purchase or rental of products or for the provision of
services in return for payment;
() ‘surreptitious advertising’ means the representation in words or pictures

of goods, services, the name, the trade mark or the activities of a producer
of goods or a provider of services in programmes when such representa-
tion is intended by the broadcaster to serve advertising and might mislead
the public as to its nature. Such representation is considered to be
intentional in particular if it is done in return for payment or for similar
consideration;
(d) ‘sponsorship’ means any contribution made by a public or private under-
taking not engaged in television broadcasting activities or in the produc-
tion of audio-visual works, to the financing of television programmes
with a view to promoting its name, its trade mark, its image, its activities
or its products.
CHAPTER II
General provisions
Article 2
a Each Member State shall ensure that all television broadcasts transmitted
= by broadcasters under its jurisdiction, or
— by broadcasters who, while not being under the jurisdiction of any
Member State, make use of a frequency or a satellite capacity
granted by, or a satellite up-link situated in, that Member State,
comply with the law applicable to broadcasts intended for the public in
that Member State.
Member States shall ensure freedom of reception and shall not restrict
retransmission on their territory of television broadcasts from other
Member States for reasons which fall within the fields coordinated by
this Directive. Member States may provisonally suspend retransmissions
of television broadcasts if the following conditions are fulfilled:
(a) a television broadcast coming from another Member State mani-
festly, seriously and gravely infringes Article 22;
(b) during the previous 12 months, the broadcaster has infringed the
same provision on at least two prior occasions;
(c) the Member State concerned has notified the broadcaster and the
Commission in writing of the alleged infringements and of its
intention to restrict retransmission should any such infringement
occur again;
(d) consultations with the transmitting State and the Commission have
not produced an amicable settlement within 15 days of the notifica-
tion provided for in point (c), and the alleged infringement persists.
89/552/EEC 664
The Commission shall ensure that the suspension is compatible with

Community law. It may ask the Member State concerned to put an end to
a suspension which is contrary to Community law, as a matter of urgency.
This provision is without prejudice to the application of any procedure,
remedy or sanction to the infringements in question in the Member State
which has jurisdiction over the broadcaster concerned.
3. This Directive shall not apply to broadcasts intended exclusively for
reception in States other than Member States, and which are not received
directly or indirectly in one or more Member States.
Article 3
1. |Member States shall remain free to require television broadcasters under
their jurisdiction to lay down more detailed or stricter rules in the areas
covered by this Directive.
2. Member States shall, by appropriate means, ensure, within the frame-
work of their legislation, that television broadcasters under their jurisdic-
tion comply with the provisions of this Directive.
CHAPTER III
Promotion of distribution and production of television programmes
Article4
1. | Member States shall ensure where practicable and by appropriate means,
that broadcasters reserve for European works, within the meaning of
Article 6, a majority proportion of their transmission time, excluding the
time appointed to news, sports events, games, advertising and teletext
services. This proportion, having regard to the broadcaster’s informa-
tional, educational, cultural and entertainment responsibilities to its
viewing public, should be achieved progressively, on the basis of suitable
criteria.
Where the proportion laid down in paragraph | cannot be attained, it
must not be lower than the average for 1988 in the Member State
concerned.
However, in respect of the Hellenic Republic and the Portuguese
Republic, the year 1988 shall be replaced by the year 1990.
From 3 October 1991, the Member States shall provide the Commission
every two years with a report on the application of this Article and
Article 5.
That report shall in particular include a statistical statement on the
achievement of the proportion referred to in this Article and Article 5
for each of the television programmes falling within the jurisdiction of the
Member State concerned, the reasons, in each case, for the failure to
attain that proportion and the measures adopted or envisaged in order to
achieve it.
The Commission shall inform the other Member States and the European
665 Broadcasting
Parliament of the reports, which shall be accompanied, where appro-

priate, by an opinion. The Commission shall ensure the application of
this Article and Article 5 in accordance with the provisions of the Treaty.
The Commission may take account in its opinion, in particular, of
progress achieved in relation to previous years, the share of first broad-
cast works in the programming, the particular circumstances of new
television broadcasters and the specific situation of countries with a low
audiovisual production capacity or restricted language area.
4. The Council shall review the implementation of this Article on the basis
of a report from the Commission accompanied by any proposals for
revision that it may deem appropriate no later than the end of the fifth
year from the adoption of the Directive.
To that end, the Commission report shall, on the basis of the information
provided by Member States under paragraph 3, take account in parti-
cular of developments in the Community market and of the international
context.
Article 5
Member States shall ensure, where practicable and by appropriate means, that
broadcasters reserve at least 10% of their transmission time, excluding the time
appointed to news, sports events, games, advertising and teletext services, or
alternately, at the discretion of the Member State, at least 10% of their
programming budget, for European works created by producers who are
independent of broadcasters. This proportion, having regard to broadcasters’
informational, educational, cultural and entertainment responsibilities to its
viewing public, should be achieved progressively, on the basis of suitable
criteria; it must be achieved by earmarking an adequate proportion for recent
works, that is to say works transmitted within five years of their production.
Article 6
1. Within the meaning of this chapter, ‘European works’ means the follow-
ing:
(a) works originating from Member States of the Community and, as
regards television broadcasters falling within the jurisdiction of the
Federal Republic of Germany, works from German territories
where the Basic Law does not apply and fulfilling the conditions of
paragraph 2;
(b) works originating from European third States party to the Eur-
opean Convention on Transfrontier Television of the Council of
Europe and fulfilling the conditions of paragraph 2;
(c) works originating from other European third countries and ful-
filling the conditions of paragraph 3.
2. The works referred to in paragraph | (a) and (b) are works mainly made
with authors and workers residing in one or more States referred to in
paragraph | (a) and (b) provided that they comply with one of the
following three conditions:
89/552/EEC 666
(a) they are made by one or more producers established in one or more
of those States; or
(b) production of the works is supervised and actually controlled by
one or more producers established in one or more of those States;
or
(c) the contribution of co-producers of those States to the total co-
production costs is preponderant and the co-production is not
controlled by one or more producers established outside those
States.
3. | The works referred to in paragraph | (c) are works made exclusively or in
co-production with producers established in one or more Member State
by producers established in one or more European third countries with
which the Community will conclude agreements in accordance with the
procedures of the Treaty, if those works are mainly made with authors
and workers residing in one or more European States.
4. Works which are not European works within the meaning of paragraph 1,
but made mainly with authors and workers residing in one or more
Member States, shall be considered to be European works to an extent
corresponding to the proportion of the contribution of Community co-
producers to the total production costs.
Article 7
Member States shall ensure that the television broadcasters under their
jurisdiction do not broadcast any cinematographic work, unless otherwise
agreed between its rights holders and the broadcaster, until two years have
elapsed since the work was first shown in cinemas in one of the Member States
of the Community; in the case of cinematographic works co-produced by the
broadcaster, this period shall be one year. Article 8
Where they consider it necessary for purposes of language policy, the Member
States, whilst observing Community law, may as regards some or all pro-
grammes of television broadcasters under their jurisdiction, lay down more
detailed or stricter rules in particular on the basis of language criteria.
Article 9
This chapter shall not apply to local television broadcasts not forming part of a
national network.
CHAPTER IV
Television advertising and sponsorship
Article 10
1. Television advertising shall be readily recognizable as such and kept quite
separate from other parts of the programme service by optical and/or
acoustic means.
2. Isolated advertising spots shall remain the exception.
667 Broadcasting
a: Advertising shall not use subliminal techniques.

4, Surreptitious advertising shall be prohibited.
Article 11
iy Advertisements shall be inserted between programmes. Provided the
conditions contained in paragraphs 2 to 5 of this Article are fulfilled,
advertisements may also be inserted during programmes in such a way
that the integrity and value of the programme, taking into account
natural breaks in and the duration and nature of the programme, and
the rights of the rights holders are not prejudiced.
In programmes consisting of autonomous parts, or in sports programmes
and similarly structured events and performances comprising intervals,
advertisements shall only be inserted between the parts or in the intervals.
The transmission of audiovisual works such as feature films and films
made for television (excluding series, serials, light entertainment pro-
grammes and documentaries), provided their programmed duration is
more than 45 minutes, may be interrupted once for each complete period
of 45 minutes. A further interruption is allowed if their programmed
duration is at least 20 minutes longer than two or more complete periods
of 45 minutes.
Where programmes, other than those covered by paragraph 2, are
interrupted by advertisements, a period of at least 20 minutes should
elapse between each successive advertising break within the programme.
Advertisements shall not be inserted in any broadcast of a religious
service. News and current affairs programmes, documentaries, religious
programmes, and children’s programmes, when their programmed dura-
tion is less than 30 minutes shall not be interrupted by advertisements. If
their programmed duration is of 30 minutes or longer, the provisions of
the previous paragraphs shall apply.
Article 12
Television advertising shall not:
(a) prejudice respect for human dignity;
(b) include any discrimination on grounds of race, sex or nationality;
(c) be offensive to religious or political beliefs;
(d) encourage behaviour prejudicial to health or to safety;
(e) encourage behaviour prejudicial to the protection of the environment.
Article 13
All forms of television advertising for cigarettes and other tobacco products
shall be prohibited.
Article 14
Television advertising for medicinal products and medical treatment available
only on prescription in the Member State within whose jurisdiction the
broadcaster falls shall be prohibited.
89/552/EEC 668
Article 15
Television advertising for alcoholic beverages shall comply with the following
criteria:
(a) it may not be aimed specifically at minors or, in particular, depict minors
consuming these beverages;
(b) it shall not link the consumption of alcohol to enhanced physical
performance or to driving;
(c) it shall not create the impression that the consumption of alcohol
contributes towards social or sexual success;
(d) it shall not claim that alcohol has therapeutic qualities or that it is a
stimulant, a sedative or a means of resolving personal conflicts;
(e) it shall not encourage immoderate consumption of alcohol or present
abstinence or moderation in a negative light;
(f) it shall not place emphasis on high alcoholic content as eure a positive
quality of the beverages.
Article 16
Television advertising shall not cause moral or physical detriment to minors,
and shall therefore comply with the following criteria for their protection:
(a) it shall not directly exhort minors to buy a product or a service by
exploiting their inexperience or credulity;
(b) it shall not directly encourage minors to persuade their parents or others
to purchase the goods or services being advertised;
() it shall not exploit the special trust minors place in parents, teachers or
other persons;
(d) it shall not unreasonably show minors in dangerous situations.
Article 17
i Sponsored television programmes shall meet the following requirements:
(a) the content and scheduling of sponsored programmes may in no
circumstances be influenced by the sponsor in such a way as to
affect the responsibility and editorial independence of the broad-
caster in respect of programmes;
(b) they must be clearly identified as such by the name and/or logo of
the sponsor at the beginning and/or the end of the programmes;
(c) they must not encourage the purchase or rental of the products or
services of the sponsor or a third party, in particular by making
special promotional references to those products or services.
Television programmes may not be sponsored by natural or legal persons
whose principal activity is the manufacture or sale of products, or the
provision of services, the advertising of which is prohibited by Article 13
or 14.
News and current affairs programmes may not be sponsored.
669 Broadcasting
Article 18
1. The amount of advertising shall not exceed 15% of the daily transmission
time. However, this percentage may be increased to 20% to include forms
of advertisements such as direct offers to the public for the sale, purchase
or rental of products or for the provision of services, provided the
amount of spot advertising does not exceed 15%.
2. The amount of spot advertising within a given one-hour period shall not
exceed 20%.
3. Without prejudice to the provisions of paragraph 1, forms of advertise-
ments such as direct offers to the public for the sale, purchase or rental of
products or for the provision of services shall not exceed one hour per
day.
Article 19
Member States may lay down stricter rules than those in Article 18 for
programming time and the procedures for television broadcasting for televi-
sion broadcasters under their jurisdiction, so as to reconcile demand for
televised advertising with the public interest, taking account in particular of:
(a) the role of television in providing information, education, culture and
entertainment;
(b) the protection of pluralism of information and of the media.
Article 20
Without prejudice to Article 3, Member States may, with due regard for
Community law, lay down conditions other than those laid down in Article 11
(2) to (5) and in Article 18 in respect of broadcasts intended solely for the
national territory which may not be received, directly or indirectly, in one or
more other Member States.
Article 21
Member States shall, within the framework of their laws, ensure that in the case
of television broadcasts that do not comply with the provisions of this chapter,
appropriate measures are applied to secure compliance with these provisions.
CHAPTER V
Protection of minors
Article 22
Member States shall take appropriate measures to ensure that television
broadcasts by broadcasters under their jurisdiction do not include programmes
which might seriously impair the physical, mental or moral development of
minors, in particular those that involve pornography or gratuitous violence.
This provision shall extend to other programmes which are likely to impair the
physical, mental or moral development of minors, except where it is ensured,
by selecting the time of the broadcast or by any technical measure, that minors
in the area of transmission will not normally hear or see such broadcasts.
89/552/EEC 670
Member States shall also ensure that broadcasts do not contain any incitement
to hatred on grounds of race, sex, religion or nationality.
CHAPTER VI
Right of reply
Article 23
1. Without prejudice to other provisions adopted by the Member States
under civil, administrative or criminal law, any natural or legal person,
regardless of nationality, whose legitimate interests, in particular reputa-
tion and good name, have been damaged by an assertion of incorrect
facts in a television programme must have a right of reply or equivalent
remedies.
2. A right of reply or equivalent remedies shall exist in relation to all
broadcasters under the jurisdiction of a Member State.
3. | Member States shall adopt the measures needed to establish the right of
reply or the equivalent remedies and shall determine the procedure to be
followed for the exercise thereof. In particular, they shall ensure that a
sufficient time span is allowed and that the procedures are such that the
right or equivalent remedies can be exercised appropriately by natural or
legal persons resident or established in other Member States.
4. Anapplication for exercise of the right of reply or the equivalent remedies
may be rejected if such a reply is not justified according to the conditions
laid down in paragraph 1, would involve a punishable act, would render
the broadcaster liable to civil law proceedings or would transgress
standards of public decency.
5. Provision shall be made for procedures whereby disputes as to the
exercise of the right of reply or the equivalent remedies can be subject to
judicial review.
CHAPTER VII
Final provisions
Article 24
In fields which this Directive does not coordinate, it shall not affect the rights
and obligations of Member States resulting from existing conventions dealing
with telecommunications or broadcasting.
Article 25
1. Member States shall bring into force the laws, regulations and adminis-
trative provisions necessary to comply with this Directive not later than 3
October 1991. They shall forthwith inform the Commission thereof.
2. Member States shall communicate to the Commission the text of the
main provisions of national law which they adopt in the fields governed
by this Directive.
671 Broadcasting
Article 26
Not later than the end of the fifth year after the date of adoption of this
Directive and every two years thereafter, the Commission shall submit to the
European Parliament, the Council, and the Economic and Social Committee a
report on the application of this Directive and, if necessary, make further
proposals to adapt it to developments in the field of television broadcasting.
Article 27
Done at Luxembourg, 3 October 1989.

For the Council
The President
R. DUMAS
CoUNCIL DIRECTIVE OF 11 MAY 1992 ON THE ADOPTION OF STANDARDS FOR
SATELLITE BROADCASTING OF TELEVISION SIGNALS (92/38/EEC)
Offical Journal No. L 137/17, 20/05/92


Whereas Article 3 of Council Directive 86/529/EEC of 3 November 1986 on
the adoption of common technical specifications of the MAC/packet family of
standards for direct satellite television broadcasting [4] made provision for the
adoption of measures to replace that Directive;
Whereas the Community, through Decision 89/337/EEC and Decision 89/
630/EEC, recognized the strategic importance of high-definition television
(HDTV) for the European consumer electronics industry and for the European
television and film industries, and established the strategy framework for the
introduction of HDTV services in Europe [5];
Whereas Directive 86/529/EEC, in particular in Article 2, established a dual
regime by limiting the application of the Directive to one type of satellite, and,
as a result, a dual market appeared with the use of MAC standards in
broadcasting satellite service (BSS) and mainly PAL and Secam in fixed
satellite service (FSS); whereas this should be avoided in the future in order to
prevent a split in the satellite market;
Whereas, in order to reach Community goals as set out in the above mentioned
Decisions and to contribute to the achievement of an internal market, as
provided for in Article 8 (a) of the Treaty, in satellite broadcasting of television
signals, it is necessary to take steps to create a convergence of standards, using
in parallel a regulatory instrument and an agreement between major actors in
the market;
Whereas it is in the best interests of European consumers to follow a path

towards HDTV based on the criteria of compatibility and evolution, in order to
avoid discontinuities and duplication of investments;
Whereas HD-MAC has been developed as the European transmission stan-

dard for HDTV services based on those criteria of compatibility and evolution
and D2-MAC offers the best available path towards the development of HDTV
with wide-screen 16:9 D2-MAC as the main step in that direction;
672
673 Broadcasting
Whereas there is a need to establish common standards for satellite transmis-

sion as an enabling element for effective free-market competition, taking into
account the fact that standards promote competitiveness by lowering costs for
producers, shaping customer preferences for products by their familiarity and
giving rise to the emergence of new markets, particularly for developing
technologies, where they are becoming a pre-condition for industrial produc-
tion or marketing;
Whereas services for satellite television broadcasting using 4:3 aspect ratio
format should not be forced to a compulsory stop or change so as not to
jeopardize the present market or inconvenience users; whereas, however,
incentives may be provided, through a parallel legal instrument, in order to
support, in addition, the use of the D2-MAC standard, in particular in 16:9
format, inter alia through simultaneous transmissions (simulcast);
Whereas it is important that, from a certain date on, new services, that is to say
services that are not extensions of existing services, will transmit in the D2-
MAC norm;
Whereas it is vital to ensure that audiovisual programmes adapted to the new

16:9 format are available in sufficient quantity and quality and provide there-
fore, where appropriate, through a parallel legal instrument, for Community
financial incentives;
Whereas, in the medium term, the capacity of satellite systems is limited and, as
a result, the scope for the simulcast transmissions of programmes in different
standards is also limited; it will be necessary to make a selection of
programmes for such transmissions;
Whereas satellite television transmissions not receivable within the Community
by domestic satellite receiving equipment and occasional transmissions are not
covered by the obligations of this Directive;
Whereas, in the interests of the consumer, it is necessary to establish a common
conditional access system compatible with D2-MAC and HD-MAC, without
hampering the technological development of these systems; whereas, therefore,
the best solution is a system consisting of a common-access unit to which one
or more smart cards can be added;
Whereas the Commission has expressed its intention to issue a mandate to a
European standardization organization for the development of a European
standard for conditional access to encrypted satellite broadcasts;
Whereas the said standard shall in principle allow for the use of more than one
conditional-access encryption system, subject to the following objectives:
— that the standard shall incorporate, or refer to, a standard for a consumer
conditional-access unit,
- that any conditional-access encryption system conforming to the
92/38/EEC 674
standard shall be fully compatible with the above mentioned consumer

access unit,
- that the standard shall be backwards compatible with equipment placed
on the market prior to the adoption of this Directive for use with any
system fully compatible with D-MAC,
- that the standards shall allow for the updating of encryption methods
from time to time without replacement or modification of the consumer
conditional-access unit;
Whereas cable TV networks and their technical capabilities as defined by the
Member States are a relevant feature in the television infrastructure of many
Member States and will be of crucial importance to the future of HDTV
services;
Whereas master antenna systems as defined by Member States are not affected
by this Directive;
Whereas Decision 89/337/EEC called for an action plan for the introduction
of HDTV to be prepared in close coordination at Community level between the
Commission, the Member States and the European industry [6];
Whereas it is essential that there should be complete agreement between
broadcasters, satellite operators, manufacturers and cable operators on the
introduction, as soon as possible, of 16:9 D-MAC services in conformity with
the objectives set out in Decision 89/337/EEC; whereas such agreement might
be reached by means of a Memorandum of Understanding;
Whereas the said Memorandum of Understanding will set out the obligations
of the respective parties for the development and promotion of 16:9 D-MAC
services in Europe in accordance with the terms and provisions of this
Directive and will constitute an integral part of the overall strategy for the
introduction of HDTV;
Whereas European research efforts must remain in the forefront of all new
significant developments, such as a trend towards digital television broad-
casting emissions; whereas Europe has to consolidate its research efforts
through collaboration and in the framework of Community research pro-
grammes;
Whereas a strategy for the introduction of HDTV has been laid down at
Community level and European undertakings have made significant invest-
ments involving many jobs;
Whereas, in view of the foreseeable technical progress in this sector, account

should now be taken of any subsequent developments of the existing systems
and provision made for an eventual review of this Directive;
675 Broadcasting
Whereas it is in the general interest, as well as in the interest of the major actors
in the market, that this Directive should be put into application at the earliest
possible date;
Whereas it is necessary to evaluate this Directive at regular intervals; whereas

such evaluation should take into account all relevant market factors, including
the services at the time of the evaluation,

Article 1
Member States shall take all appropriate measures to promote and support the
introduction and development of advanced satellite broadcasting services for
television programmes, using the HD-MAC standard for not completely
digital high-definition television transmission and the D2-MAC standard for
other not completely digital transmission in the 16: 9 aspect ratio format.
Article 2
1. For any transmission of a television service in the high-definition
television format that is not completely digital, only the HD-MAC
standard may be used. Completeley digital transmissions receivable by
viewers using domestic satellite receiving equipment, even if such
transmissions are intended to be redistributed by cable networks, may
use only a system standardized by the European Telecommunications
Standards Institute (ETSI) but are otherwise not covered by this
Directive.
2. For any not completely digital transmission of a 625 line satellite
television service receivable by viewers using domestic satellite receiving
equipment, even if such transmissions are intended to be redistributed by
cable networks: — in respect of any service in the 16: 9 aspect ratio format,
only the D2-MAC standard may be used, — in respect of any other service
starting after 1 January 1995, the D2-MAC standard must be used. These
services may also be transmitted simultaneously in PAL, SECAM or D-
MAC. This provision will take effect only three months after adoption by
the Council of a proposal from the Commission, based on the appro-
priate Article of the Treaty, to provide financial support for the said
services.
Article 3
As regards services other than those referred to in Article 2, efforts geared to
the widespread introduction up to | January 1995 of transmissions using the
D2-MAC standard, with an increasing share of 16: 9, will be made as from
1992 by means of appropriate measures. Without prejudice to Article 7, the
Commission will submit proposals as from 30 June 1992, and not later than 31
December 1993, in order to implement all the appropriate measures required
for the widest possible broadcasting in D2-MAC.
92/38/EEC 676
Article 4
Member States shall take all measures to ensure that, as from 1 January 1994,
all new television sets and all new domestic satellite receivers and video-
recorders for sale or rent in the Community: — in respect of all television sets
with 16: 9 format, possess a D2-MAC decoder, — in respect of all other such
equipment except miniature television sets, possess at least a standardized
socket as standardized by Cenelec by means of which a D2-MAC decoder may
be connected to the equipment permitting an open interface standard.
Article 5
Member States shall take appropriate measures to ensure that:
_ any new TV cable redistribution system, or any existing TV cable
redistribution system having the necessary technical capability, shall be
configured in such a way that HD-MAC signals can be transmitted
through the network from head-end to individual homes,
— if cable operators decide the redistribution by cable of programmes
received by them using the 16: 9 aspect ratio format and the D2-MAC
standard or the HD-MAC standard, operators shall distribute these
programmes using the 16: 9 aspect ratio format and the D2-MAC or
HD-MAC standard.
Article 6
In the case of all services using the D2-MAC standard, which are encrypted
and employ a conditional access system, Member States shall take all the
necessary measures to ensure that only a conditional access system fully
compatible with D2-MAC and standardized as such by a European standardi-
zation organization by | July 1993 is used.
Article 7
1. This Directive shall apply until 31 December 1998.
2. Before 1 January 1994 and every two years thereafter, the Commission
shall submit to the European Parliament, to the Council and to the
Economic and Social Committee a report on the effects of the application
of this Directive, on the evolution of the market, in particular on market
penetration measured by objective criteria, and the use of the Community
funding. If necessary, the Commission shall make proposals to the
Council to adapt this Directive to these developments.
3. Before 1 January 1995 the Commission shall submit, if necessary,
proposals to the Council on a policy of standardization for HDTV, in
accordance with the objective of achieving total harmonization of all
television broadcasting media, whether analogue or digital, by satellite,
cable or terrestrial redistribution. These proposals should take into
account the results of European collaboration in research and develop-
ment and the work of the relevant standardizing organizations in Europe
and relevant interest groups.
677 Broadcasting
Article 8
The rules laid down in this Directive shall be accompanied by commercial
measures based on the signing, by the parties concerned, of a Memorandum of
Understanding coordinating the actions of the various signatories and, where
appropriate, by simultaneous measures designed to support the creation of a
European market for the D2-MAC, 16: 9 and HD-MAC standards.
Article 9
it Member States shall bring into force the laws, regulations and adminis-
trative provisions necessary to comply with this Directive no later than
six months after the date of its notification except for the obligations in
the second indent of Article 2 (2). They shall forthwith inform the
Commission thereof.
When Member States adopt these provisions, they shall contain a
the time of their official publication. The procedure for such reference
shall be adopted by Member States.
Directive.
Article 10
Offical Journal No. L 137/17, 20/05/92
Done at Brussels, 11 May 1992.
For the Council
The President
Joao PINHEIRO
(1) OJ No C 194, 25. 7. 1991, p. 20 and OJ No C 332, 21. 12. 1991, p. 13.
(2) OJ No C 326, 16. 12. 1991, p. 71 and OJ No C 94, 13. 4. 1992.
(3) OJNoC 40, 17. 2. 1992, p. 101.
(4) OJ No L 311, 6. 11. 1986, p. 28.
(5) OJ No L 142, 25. 5. 1989, p. 1.
(6) OJ No L 363, 13. 12. 1989, p. 30
COUNCIL DIRECTIVE OF 27 SEPTEMBER 1993 ON THE COORDINATION OF
CERTAIN RULES CONCERNING COPYRIGHT AND RIGHTS RELATED TO COPYRIGHT
APPLICABLE TO SATELLITE BROADCASTING AND CABLE RETRANSMISSION
(93/83/EEC)

and in particular Articles 57 (2) and 66 thereof,
(1) Whereas the objectives of the Community as laid down in the Treaty
include establishing an ever closer union among the peoples of Europe,
fostering closer relations between the States belonging to the Community and
ensuring the economic and social progress of the Community countries by
common action to eliminate the barriers which divide Europe;
(2) Whereas, to that end, the Treaty provides for the establishment of a
common market and an area without internal frontiers; whereas measures to
achieve this include the abolition of obstacles to the free movement of services
and the institution of a system ensuring that competition in the common
market is not distorted; whereas, to that end, the Council may adopt directives
for the coordination of the provisions laid down by law, regulation or
administrative action in Member States concerning the taking up and pursuit
of activities as self-employed persons;
(3) Whereas broadcasts transmitted across frontiers within the Community,
in particular by satellite and cable, are one of the most important ways of
pursuing these Community objectives, which are at the same time political,
economic, social, cultural and legal;
(4) Whereas the Council has already adopted Directive 89/552/EEC of 3

October 1989 on the coordination of certain provisions laid down by law,
regulation or administrative action in Member States concerning the pursuit of
television broadcasting activities [4], which makes provision for the promotion
of the distribution and production of European television programmes and for
advertising and sponsorship, the protection of minors and the right of reply;
(5) Whereas, however, the achievement of these objectives in respect of cross-

border satellite broadcasting and the cable retransmission of programmes from
other Member States is currently still obstructed by a series of differences
between national rules of copyright and some degree of legal uncertainty;
whereas this means that holders of rights are exposed to the threat of seeing
678
679 Broadcasting
their works exploited without payment of remuneration or that the individual

holders of exclusive rights in various Member States block the exploitation of
their rights; whereas the legal uncertainty in particular constitutes a direct
obstacle in the free circulation of programmes within the Community;
(6) Whereas a distinction is currently drawn for copyright purposes between
communication to the public by direct satellite and communication to the
public by communications satellite; whereas, since individual reception is
possible and affordable nowadays with both types of satellite, there is no longer
any justification for this differing legal treatment;
(7) Whereas the free broadcasting of programmes is further impeded by the
current legal uncertainty over whether broadcastsing by a satellite whose
signals can be received directly affects the rights in the country of transmission
only or in all countries of reception together; whereas, since communications
satellites and direct satellites are treated alike for copyright purposes, this legal
uncertainty now affects almost all programmes broadcast in the Community
by satellite;
(8) Whereas, furthermore, legal certainty, which is a prerequisite for the free
movement of broadcasts within the Community, is missing where programmes
transmitted across frontiers are fed into and retransmitted through cable
networks;
(9) Whereas the development of the acquisition of rights on a contractual
basis by authorization is already making a vigorous contribution to the
creation of the desired European audiovisual area; whereas the continuation
of such contractual agreements should be ensured and their smooth application
in practice should be promoted wherever possible;
(10) Whereas at present cable operators in particular cannot be sure that they
have actually acquired all the programme rights covered by such an agreement;
(11) Whereas, lastly, parties in different Member States are not all similarly
bound by obligations which prevent them from refusing without valid reason to
negotiate on the acquisition of the rights necessary for cable distribution or
allowing such negotiations to fail;
(12) Whereas the legal framework for the creation of a single audiovisual
area laid down in Directive 89/552/EEC must, therefore, be supplemented
with reference to copyright;
(13) Whereas, therefore, an end should be put to the differences of treatment
of the transmission of programmes by communications satellite which exist in
the Member States, so that the vital distinction throughout the Community
becomes whether works and other protected subject matter are communicated
to the public; whereas this will also ensure equal treatment of the suppliers of
cross-border broadcasts, regardless of whether they use a direct broadcasting
satellite or a communications satellite;
93/83/EEC 680
(14) Whereas the legal uncertainty regarding the rights to be acquired which
impedes cross-border satellite broadcasting should be overcome by defining the
notion of communication to the public by satellite at a Community level;
whereas this definition should at the same time specify where the act of
communication takes place; whereas such a definition is necessary to avoid
the cumulative application of several national laws to one single act of
broadcasting; whereas communication to the public by satellite occurs only
when, and in the Member State where, the programme-carrying signals are
introduced under the control and responsibility of the broadcasting organiza-
tion into an uninterrupted chain of communication leading to the satellite and
down towards the earth; whereas normal technical procedures relating to the
programme-carrying signals should not be considered as interruptions to the
chain of broadcasting;
(15) Whereas the acquisition on a contractual basis of exclusive broadcasting
rights should comply with any legislation on copyright and rights related to
copyright in the Member State in which communication to the public by
satellite occurs;
(16) Whereas the principle of contractual freedom on which this Directive is
based will make it possible to continue limiting the exploitation of these rights,
especially as far as certain technical means of transmission or certain language
versions are concerned;
(17) Whereas, in ariving at the amount of the payment to be made for the
rights acquired, the parties should take account of all aspects of the broadcast,
such as the actual audience, the potential audience and the language version;
(18) Whereas the application of the country-of-origin principle contained in

this Directive could pose a problem with regard to existing contracts; whereas
this Directive should provide for a period of five years for existing contracts to
be adapted, where necessary, in the light of the Directive; whereas the said
country-of-origin principle should not, therefore, apply to existing contracts
which expire before 1 January 2000; whereas if by that date parties still have an
interest in the contract, the same parties should be entitled to renegotiate the
conditions of the contract;
(19) Whereas existing international co-production agreements must be inter-

preted in the light of the economic purpose and scope envisaged by the parties
upon signature; whereas in the past international co-production agreements
have often not expressly and specifically addressed communication to the
public by satellite within the meaning of this Directive a particular form of
exploitation; whereas the underlying philosophy of many existing international
co-production agreements is that the rights in the co-production are exercised
separately and independently by each co-producer, by dividing the exploitation
rights between them along territorial lines; whereas, as a general rule, in the
situation where a communication to the public by satellite authorized by one
681 Broadcasting
co-producer would prejudice the value of the exploitation rights of another co-
producer, the interpretation of such an existing agreement would normally
suggest that the latter co-producer would have to give his consent to the
authorization, by the former co-producer, of the communication to the public
by satellite; whereas the language exclusivity of the latter co-producer will be
prejudiced where the language version or versions of the communication to the
public, including where the version is dubbed or subtitled, coincide(s) with the
language or the languages widely understood in the territory allotted by the
agreement to the latter co-producer; whereas the notion of exclusivity should
be understood in a wider sense where the communication to the public by
satellite concerns a work which consists merely of images and contains no
dialogue or subtitles; whereas a clear rule is necessary in cases where the
international co-production agreement does not expressly regulate the division
of rights in the specific case of communication to the public by satellite within
the meaning of this Directive;
(20) Whereas communications to the public by satellite from non-member

countries will under certain conditions be deemed to occur within a Member
State of the Community;
(21) Whereas it is necessary to ensure that protection for authors, perfor-

mers, producers of phonograms and broadcasting organizations is accorded in
all Member States and that this protection is not subject to a statutory licence
system; whereas only in this way is it possible to ensure that any difference in
the level of protection within the common market will not create distortions of
competition;
(22) Whereas the advent of new technologies is likely to have an impact on
both the quality and the quantity of the exploitation of works and other subject
matter;
(23) Whereas in the light of these developments the level of protection

granted pursuant to this Directive to all rightholders in the areas covered by
this Directive should remain under consideration;
(24) Whereas the harmonization of legislation envisaged in this Directive

entails the harmonization of the provisions ensuring a high level of protection
of authors, performers, phonogram producers and broadcasting organizations;
whereas this harmonization should not allow a broadcasting organization to
take advantage of differences in levels of protection by relocating activities, to
the detriment of audiovisual productions;
(25) Wheres the protection provided for rights related to copyright should be
aligned on that contained in Council Directive 92/100/EEC of 19 November
1992 on rental right and lending right and on certain rights related to copyright
in the field of intellectual property [5] for the purposes of communication to the
public by satellite; whereas, in particular, this will ensure that peformers and
93/83/EEC 682
phonogram producers are guaranteed an appropriate remuneration for the

communication to the public by satellite of their performances or phonograms;
(26) Whereas the provisions of Article 4 do not prevent Member States from
extending the presumption set out in Article 2 (5) of Directive 92/100/EEC to
the exclusive rights referred to in Article 4; whereas, furthermore, the
provisions of Article 4 do not prevent Member States from providing for a
rebuttable presumption of the authoriztion of exploitation in respect of the
exclusive rights of performers referred to in that Article, in so far as such
presumption is compatible with the International Convention for the Protec-
tion of Performers, Producers of Phonograms and Broadcasting Organiza-
tions;
(27) Whereas the cable retransmission of programmes from other Member
States is an act subject to copyright and, as the case may be, rights related to
copyright; whereas the cable operator must, therefore, obtain the authorization
from every holder of rights in each part of the programme retransmitted;
whereas, pursuant to this Directive, the authorizations should be granted
contractually unless a temporary exception is provided for in the case of
existing legal licence schemes;
(28) Whereas, in order to ensure that the smooth operation of contractual
arrangements is not called into question by the intervention of outsiders
holding rights in individual parts of the programme, provision should be made,
through the obligation to have recourse to a collecting society, for the exclusive
collective exercise of the authorization right to the extent that this is required
by the special features of cable retransmission; whereas the authorization right
as such remains intact and only the exercise of this right is regulated to some
extent, so that the right to authorize a cable retransmission can still be
assigned; whereas this Directive does not affect the exercise of moral rights;
(29) Whereas the exemption provided for in Article 10 should not limit the
choice of holders of rights to transfer their rights to a collecting society and
thereby have a direct share in the remuneration paid by the cable distributor
for cable retransmission;
(30) Whereas contractual arrangements regarding the authorization of cable

retransmission should be promoted by additional measures; whereas a party
seeking the conclusion of a general contract should, for its part, be obliged to
submit collective proposals for an agreement; whereas, furthermore, any party
shall be entitled, at any moment, to call upon the assistance of impartial
mediators whose task is to assist negotiations and who may submit proposals;
whereas any such proposals and any opposition thereto should be served on the
parties concerned in accordance with the applicable rules concerning the
service of legal documents, in particular as set out in existing international
conventions; whereas, finally, it is necessary to ensure that the negotiations are
not blocked without valid justification or that individual holders are not
683 Broadcasting
prevented without valid justification from taking part in the negotiations;

whereas none of these measures for the promotion of the acquisition of rights
calls into question the contractual nature of the acquisition of cable retransmis-
sion rights;
(31) Whereas for a transitional period Member States should be allowed to

retain existing bodies with jurisdiction in their territory over cases where the
right to retransmit a programme by cable to the public has been unreasonably
refused or offered on unreasonable terms by a broadcasting organization;
whereas it is understood that the right of parties concerned to be heard by the
body should be guaranteed and that the existence of the body should not
prevent the parties concerned from having normal access to the courts;
(32) Whereas, however, Community rules are not needed to deal with all of
those matters, the effects of which perhaps with some commercially insignif-
icant exceptions, are felt only inside the borders of a single Member State;
(33) Whereas minimum rules should be laid down in order to establish and
guarantee free and uninterrupted cross-border broadcasting by satellite and
simultaneous, unaltered cable retransmission of programmes broadcast from
other Member States, on an essentially contractual basis;
(34) Whereas this Directive should not prejudice further harmonization in
the field of copyright and rights related to copyright and the collective
administration of such rights; whereas the possibility for Member States to
regulate the activities of collecting societies should not prejudice the freedom of
contractual negotiation of the rights provided for in this Directive, on the
understanding that such negotiation takes place within the framework of
general or specific national rules with regard to competition law or the
prevention of abuse of monopolies;
(35) Whereas it should, therefore, be for the Member States to supplement
the general provisions needed to achieve the objectives of this Directive by
taking legislative and administrative measures in their domestic law, provided
that these do not run counter to the objectives of this Directive and are
compatible with Community law;
(36) Whereas this Directive does not affect the applicability of the competi-
tion rules in Articles 85 and 86 of the Treaty,

CHAPTER I
Definitions
Article 1
Definitions
1. For the purpose of this Directive, ‘satellite’ means any satellilte operating
93/83/EEC 684
on frequency bands which, under telecommunications law, are reserved

for the broadcast of signals for reception by the public or which are
reserved for closed, point-to-point communication. In the latter case,
however, the circumstances in which individual reception of the signals
takes place must be comparable to those which apply in the first case.
(a) For the purpose of this Directive, ‘communication to the public by
satellite’ means the act of introducing, under the control and
responsibility of the broadcasting organization, the programme-
carrying signals intended for reception by the public into an
uninterrupted chain of communication leading to the satellite and
down towards the earth.
(b) The act of communication to the public by satellite occurs solely in
the Member State where, under the control and responsibility of the
broadcasting organization, the programme-carrying signals are
introduced into an uninterrupted chain of communication leading
to the satellite and down towards the earth.
(c) If the programme-carrying signals are encrypted, then there is
communication to the public by satellite on condition that the
means for decrypting the broadcast are provided to the public by
the broadcasting organization or with its consent.
(d) Where an act of communication to the public by satellite occurs in a
non-Community State which does not provide the level of protec-
tion provided for under Chapter II,
(i) if the programme-carrying signals are transmitted to the
satellite from an uplink situation situated in a Member State,
that act of communication to the public by satellite shall be
deemed to have occurred in that Member State and the rights
provided for under Chapter II shall be exercisable against the
person operating the uplink station; or
(ii) if there is no use of an uplink station situated in a Member
State but a broadcasting organization established in a Mem-
ber State has commissioned the act of communication to the
public by satellite, that act shall be deemed to have occured in
the Member State in which the broadcasting organization has
its principal establishment in the Community and the rights
provided for under Chapter II shall be exercisable against the
broadcasting organization.
For the purposes of this Directive, ‘cable retransmission’ means the
simultaneous, unaltered and unabridged retransmission by a cable or
microwave system for reception by the public of an initial transmission
from another Member State, by wire or over the air, including that by
satellite, of television or radio programmes intended for reception by the
public.
685 Broadcasting
4. For the purposes of this Directive ‘collecting society’ means any organiza-
tion which manages or administers copyright or rights related to copy-
right as its sole purpose or as one of its main purposes.
5. For the purposes of this Directive, the principal director of a cinemato-
graphic or audiovisual work shall be considered as its author or one of its
authors. Member States may provide for others to be considered as its co-
authors.
CHAPTER II
Broadcasting of programmes by satellite
Article 2
Broadcasting right Member States shall provide an exclusive right for the
author to authorize the communication to the public by satellite of copyright
works, subject to the provisions set out in this chapter.
Article 3
Acquisition of broadcasting rights
1. | Member States shall ensure that the authorization referred to in Article 2
may be acquired only be agreement.
2. A Member State may provide that a collective agreement between a
collecting society and a broadcasting organization concerning a given
category of works may be extended to rightholders of the same category
who are not represented by the collecting society, provided that:
- the communication to the public by satellite simulcasts a terrestrial
broadcast by the same broadcaster, and
~ the unrepresented rightholder shall, at any time, have the possibility
of excluding the extension of the collective agreement to his works
and of exercising his rights either individually or collectively.
3. Paragraph 2 shall not apply to cinematographic works, including works
created by a process analogous to cinematography.
4. Where the law of a Member State provides for the extension of a
collective agreement in accordance with the provisions of paragraph 2,
that Member States shall inform the Commission which broadcasting
organizations are entitled to avail themselves of that law. The Commis-
sion shall publish this information in the Official Journal of the European
Communities (C series).
Article 4
Rights of performers, phonogram producers and broadcasting organizations
1. | For the purposes of communication to the public by satellite, the rights of
performers, phonogram producers and broadcasting organizations shall
be protected in accordance with the provisions of Articles 6, 7, 8 and 10
of Directive 92/100/EEC.
93/83/EEC 686
2. For the purposes of paragraph 1, ‘broadcasting by wireless means’ in

Directive 92/100/EEC shall be understood as including communication
to the public by satellite.
3. With regard to the exercise of the rights referred to in paragraph 1,
Articles 2 (7) and 12 of Directive 92/100/EEC shall apply.
Article 5
Relation between copyright and related rights Protection of copyright-related
rights under this Directive shall leave intact and shall in no way affect the
protection of copyright.
Article 6
Minimum protection
1. | Member States may provide for more far-reaching protection for holders
of rights related to copyright than that required by Article 8 of Directive
92/100/EEC.
2. In applying paragraph 1 Member States shall observe the definitions
contained in Article 1 (1) and (2).
Article 7
Transitional provisions
1. With regard to the application in time of the rights referred to in Article 4
(1) of this Directive, Article 13 (1), (2), (6) and (7) of Directive 92/100/
EEC shall apply. Article 13 (4) and (5) of Directive 92/100/EEC shall
apply mutatis mutandis.
2. Agreements concerning the exploitation of works and other protected
subject matter which are in force on the date mentioned in Article 14 (1)
shall be subject to the provisions of Articles 1 (2), 2 and 3 as from 1
January 2000 if they expire after that date.
3. | When an international co-production agreement concluded before the
date mentioned in Article 14 (1) between a co-producer from a Member
State and one or more co-producers from other Member States or third
countries expressly provides for a system of division of exploitation rights
between the co-producers by geographical areas for all means of
communication to the public, without distinguishing the arrangement
applicable to communication to the public by satellite from the provisions
applicable to the other means of communication, and where communica-
tion to the public by satellite of the co-production would prejudice the
exclusivity, in particular the language exclusivity, of one of the co-
producers or his assignees in a given territory, the authorization by one
of the co-producers or his assignees for a communication to the public by
satellite shall require the prior consent of the holder of that exclusivity,
whether co-producer or assignee.
687 Broadcasting
CHAPTER III
Cable retransmission
Article 8
Cable retransmission right
I: Member States shall ensure that when programmes from other Member
States are retransmitted by cable in their territory the applicable copy-
right and related rights are observed and that such retransmission takes
place on the basis of individual or collective contractual agreements
between copyright owners, holders of related rights and cable operators.
No Notwithstanding paragraph 1, Member States may retain until 31
December 1997 such statutory licence systems which are in operation or
expressly provided for by national law on 31 July 1991.
Article 9
Exercise of the cable retransmission right
iP Member States shall ensure that the right of copyright owners and
holders or related rights to grant or refuse authorization to a cable
operator for a cable retransmission may be exercised only through a
collecting society.
Where a rightholder has not transferred the management of his rights to
a collecting society, the collecting society which manages rights of the
same category shall be deemed to be mandated to manage his rights.
Where more than one collecting society manages rights of that category,
the rightholder shall be free to choose which of those collecting societies
is deemed to be mandated to manage his rights. A rightholder referred to
in this paragraph shall have the same rights and obligations resulting
from the agreement between the cable operator and the collecting society
which is deemed to be mandated to manage his rights as the rightholders
who have mandated that collecting society and he shall be able to claim
those rights within a period, to be fixed by the Member State concerned,
which shall not be shorter than three years from the date of the cable
retransmission which includes his work or other protected subject matter.
A Member State may provide that, when a rightholder authorizes the
initial transmission within its territory of a work or other protected
subject matter, he shall be deemed to have agreed not to exercise his
cable retransmission rights on an individual basis but to exercise them in
accordance with the provisions of this Directive.
Article 10
Exercise of the cable retransmission right by broadcasting organizations
Member States shall ensure that Article 9 does not apply to the rights exercised
by a broadcasting organization in respect of its own transmission, irrespective
of whether the rights concerned are its own or have been transferred to it by
other copyright owners and/or holders of related rights.
93/83/EEC 688
Article 11
Mediators
1. Where no agreement is concluded regarding authorization of the cable
retransmission of a broadcast. Member States shall ensure that either
party may call upon the assistance of one or more mediators.
2. The task of the mediators shall be to provide assistance with negotiation.
They may also submit proposals to the parties.
3. It shall be assumed that all the parties accept a proposal as referred to in
paragraph 2 if none of them expresses its opposition within a period of
three months. Notice of the proposal and of any opposition thereto shall
be served on the parties concerned in accordance with the applicable
rules concerning the service of legal documents.
4. The mediators shall be so selected that their independence and imparti-
ality are beyond reasonable doubt.
Article 12
Prevention of the abuse of negotiating positions
1. Member States shall ensure by means of civil or administrative law, as
appropriate, that the parties enter and conduct negotiations regarding
authorization for cable retransmission in good faith and do not prevent
or hinder negotiation without valid justification.
No A Member State which, on the date mentioned in Article 14 (1), has a
body with jurisdiction in its territory over cases where the right to
retransmit a programme by cable to the public in that Member State has
been unreasonably refused or offered on unreasonable terms by a broad-
casting organization may retain that body.
3. Paragraph 2 shall apply for a transitional period of eight years from the
date mentioned in Article 14 (1).
CHAPTER IV
General provisions
Article 13
Collective administration of rights
This Directive shall be without prejudice to the regulation of the activities of
collecting societies by the Member States.
Article 14
Final provisions
trative provisions necessary to comply with this Directive before 1
January 1995. They shall immediately inform the Commission thereof.
When Member States adopt these measures, the latter shall contain a
the time of their official publication. The methods of making such a
689 Broadcasting
2. Member States shall communicate to the Commission the provisions of

national law which they adopt in the field covered by this Directive.
3. Not later than 1 January 2000, the Commission shall submit to the
European Parliament, the Council and the Economic and Social Com-
mittee a report on the application of this Directive and, if necessary,
make further proposals to adapt it to developments in the audio and
audiovisual sector.
Article 15

For the Council
The President
R. URBAIN

(2) OJ No C 305, 23. 11. 1992, p. 129 and OJ No C 255, 20. 9. 1993.
(3) OJ No C98, 21. 4. 1992, p. 44.
(4) OJ No L 298, 17. 10. 1989, p. 23.
(5) OJ No L 346, 27. 11. 1992, p. 61.
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 30 JUNE
1997 AMENDING COUNCIL DIRECTIVE 89/552/EEC ON THE COORDINATION OF
CERTAIN PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE
ACTION IN MEMBER STATES CONCERNING THE PURSUIT OF TELEVISION
BROADCASTING ACTIVITIES (97/36/EC)

EUROPEAN UNION,
particular Articles 57 (2) and 66 thereof,
Treaty [3] in the light of the joint text approved by the Conciliation Committee
on 16 April 1997,
(1) Whereas Council Directive 89/552/EEC [4] constitutes the legal frame-
work for television broadcasting in the internal market;
(2) Whereas Article 26 of Directive 89/552/EEC states that the Commission
shall, not later than the end of the fifth year after the date of adoption of the
Directive, submit to the European Parliament, the Council and the Economic
and Social Committee a report on the application of the Directive and, if
necessary, make further proposals to adapt it to developments in the field of
television broadcasting;
(3) Whereas the application of Directive 89/552/EEC and the report on its
application have revealed the need to clarify certain definitions or obligations
on Member States under this Directive;
(4) Whereas the Commission, in its communication of 19 July 1994 entitled

‘Europe’s way to the information society: an action plan’, underlined the
importance of a regulatory framework applying to the content of audiovisual
services which would help to safeguard the free movement of such services in
the Community and be responsive to the opportunities for growth in this sector
opened up by new technologies, while at the same time taking into account the
specific nature, in particular the cultural and sociological impact, of audio-
visual programmes, whatever their mode of transmission;
(5) Whereas the Council welcomed this action plan at its meeting of 28
September 1994 and stressed the need to improve the competitiveness of the
European audiovisual industry;
690
691 Broadcasting
(6) Whereas the Commission has submitted a Green Paper on the Protection
of Minors and Human Dignity in audiovisual and information services and has
undertaken to submit a Green Paper focusing on developing the cultural
aspects of these new services;
(7) Whereas any legislative framework concerning new audiovisual services

must be compatible with the primary objective of this Directive which is to
create the legal framework for the free movement of services;
(8) Whereas it is essential that the Member States should take action with
regard to services comparable to television broadcasting in order to prevent
any breach of the fundamental principles which must govern information and
the emergence of wide disparities as regards free movement and competition;
(9) Whereas the Heads of State and Government meeting at the European
Council in Essen on 9 and 10 December 1994 called on the Commission to
present a proposal for a revision of Directive 89/552/EEC before their next
meeting;
(10) Whereas the application of Directive 89/552/EEC has revealed the need
to clarify the concept of jurisdiction as applied specifically to the audiovisual
sector; whereas, in view of the case law of the Court of Justice of the European
Communities, the establishment criterion should be made the principal
criterion determining the jurisdiction of a particular Member State;
(11) Whereas the concept of establishment, according to the criteria laid

down by the Court of Justice in its judgment of 25 July 1991 in the Factortame
case [5], involves the actual pursuit of an economic activity through a fixed
establishment for an indefinite period;
(12) Whereas the establishment of a television broadcasting organization

may be determined by a series of practical criteria such as the location of the
head office of the provider of services, the place where decisions on program-
ming policy are usually taken, the place where the programme to be broadcast
to the public is finally mixed and processed, and the place where a significant
proportion of the workforce required for the pursuit of the television broad-
casting activity is located;
(13) Whereas the fixing of a series of practical criteria is designed to
determine by an exhaustive procedure that one Member State and one only
has jurisdiction over a broadcaster in connection with the provision of the
services which this Directive addresses; nevertheless, taking into account the
case law of the Court of Justice and so as to avoid cases where there is a
vacuum of jurisdiction it is appropriate to refer to the criterion of establish-
ment within the meaning of Articles 52 and following of the Treaty establishing
the European Community as the final criterion determining the jurisdiction of
a Member State;
97/36/EC 692
(14) Whereas the Court of Justice has constantly held [6] that a Member State
retains the right to take measures against a television broadcasting organiza-
tion that is established in another Member State but directs all or most of its
activity to the territory of the first Member State if the choice of establishment
was made with a view to evading the legislation that would have applied to the
organization had it been established on the territory of the first Member State;
(15) Whereas Article F (2) of the Treaty on European Union stipulates that
the Union shall respect fundamental rights as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental Freedoms
as general principles of Community law; whereas any measure aimed at
restricting the reception and/or suspending the retransmission of television
broadcasts taken under Article 2a of Directive 89/552/EEC as amended by
this Directive must be compatible with such principles;
(16) Whereas it is necessary to ensure the effective application of the
provisions of Directive 89/552/EEC as amended by this Directive throughout
the Community in order to preserve free and fair competition between firms in
the same industry;
(17) Whereas directly affected third parties, including nationals of other

Member States, must be able to assert their rights, according to national law,
before competent judicial or other authorities of the Member State with
jurisdiction over the television broadcasting organization that may be failing
to comply with the national provisions arising out of the application of
Directive 89/552/EEC as amended by this Directive;
(18) Whereas it is essential that Member States should be able to take

measures to protect the right to information and to ensure wide access by the
public to television coverage of national or non-national events of major
importance for society, such as the Olympic games, the football World Cup
and European football championship; whereas to this end Member States
retain the right to take measures compatible with Community law aimed at
regulating the exercise by broadcasters under their jurisdiction of exclusive
broadcasting rights to such events;
(19) Whereas it is necessary to make arrangements within a Community
framework, in order to avoid potential legal uncertainty and market distortions
and to reconcile free circulation of television services with the need to prevent
the possibility of circumvention of national measures protecting a legitimate
general interest;
(20) Whereas, in particular, it is appropriate to lay down in this Directive
provisions concerning the exercise by broadcasters of exclusive broadcasting
rights that they may have purchased to events considered to be of major
importance for society in a Member State other than that having jurisdiction
over the broadcasters, and whereas, in order to avoid speculative rights
purchases with a view to circumvention of national measures, it is necessary
693 Broadcasting
to apply these provisions to contracts entered into after the publication of this
Directive and concerning events which take place after the date of implementa-
tion, and whereas, when contracts that predate the publication of this Directive
are renewed, they are considered to be new contracts;
(21) Whereas events of major importance for society should, for the purposes
of this Directive, meet certain criteria, that is to say be outstanding events
which are of interest to the general public in the European Union or in a given
Member State or in an important component part of a given Member State and
are organized in advance by an event organizer who is legally entitled to sell the
rights pertaining to that event;
(22) Whereas, for the purposes of this Directive, ‘free television’ means
broadcasting on a channel, either public or commercial, of programmes which
are accessible to the public without payment in addition to the modes of
funding of broadcasting that are widely prevailing in each Member State (such
as licence fee and/or the basic tier subscription fee to a cable network);
(23) Whereas Member States are free to take whatever measures they deem
appropriate with regard to broadcasts which come from third countries and
which do not satisfy the conditions laid down in Article 2 of Directive 89/552/
EEC as amended by this Directive, provided they comply with Community law
and the international obligations of the Community;
(24) Whereas in order to eliminate the obstacles arising from differences in
national legislation on the promotion of European works, Directive 89/552/
EEC as amended by this Directive contains provisions aimed at harmonizing
such legislation; whereas those provisions which, in general, seek to liberalize
trade must contain clauses harmonizing the conditions of competition;
(25) Whereas, moreover, Article 128 (4) of the Treaty establishing the
European Community requires the Community to take cultural aspects into
account in its action under other provisions of the Treaty;
(26) Whereas the Green Paper on ‘Strategy options to strengthen the
European programme industry in the context of the audiovisual policy of the
European Union’, adopted by the Commission on 7 April 1994, puts forward
inter alia measures to promote European works in order to further the
development of the sector; whereas the Media II programme, which seeks to
promote training, development and distribution in the audiovisual sector, is
also designed to enable the production of European works to be developed;
whereas the Commission has proposed that production of European works
should also be promoted by a Community mechanism such as a Guarantee
Fund;
(27) Whereas broadcasting organizations, programme makers, producers,
authors and other experts should be encouraged to develop more detailed
97/36/EC 694
concepts and strategies aimed at developing European audiovisual fiction films

that are addressed to an international audience;
(28) Whereas, in addition to the considerations cited above, it is necessary to
create conditions for improving the competitiveness of the programme
industry; whereas the communications on the application of Articles 4 and 5
of Directive 89/552/EEC, adopted by the Commission on 3 March 1994 and
15 July 1996 pursuant to Article 4 (3) of that Directive, draw the conclusion
that measures to promote European works can contribute to such an improve-
ment but that they need to take account of developments in the field of
television broadcasting;
(29) Whereas channels broadcasting entirely in a language other than those
of the Member States should not be covered by the provisions of Articles 4 and
5; whereas, nevertheless, where such a language or languages represent a
substantial part but not all of the channel’s transmission time, the provisions
of Articles 4 and 5 should not apply to that part of transmission time;
(30) Whereas the proportions of European works must be achieved taking
economic realities into account; whereas, therefore, a progressive system for
achieving this objective is required;
(31) Whereas, with a view to promoting the production of European works, it

is essential that the Community, taking into account the audiovisual capacity
of each Member State and the need to protect lesser used languages of the
European Union, should promote independent producers; whereas Member
States, in defining the notion of ‘independent producer’, should take appro-
priate account of criteria such as the ownership of the production company, the
amount of programmes supplied to the same broadcaster and the ownership of
secondary rights;
(32) Whereas the question of specific time scales for each type of television
showing of cinematographic works is primarily a matter to be settled by means
of agreements between the interested parties or professionals concerned;
(33) Whereas advertising for medicinal products for human use is subject to
the provisions of Directive 92/28/EEC [7];
(34) Whereas daily transmission time allotted to announcements made by the

broadcaster in connection with its own programmes and ancillary products
directly derived from these, or to public service announcements and charity
appeals broadcast free of charge, is not to be included in the maximum
amounts of daily or hourly transmission time that may be allotted to
advertising and teleshopping;
(35) Whereas, in order to avoid distortions of competition, this derogation is
limited to announcements concerning products that fulfil the dual condition of
being both ancillary to and directly derived from the programmes concerned;
695 Broadcasting
whereas the term ancillary refers to products intended specifically to allow the
viewing public to benefit fully from or to interact with these programmes;
(36) Whereas in view of the development of teleshopping, an economically
important activity for operators as a whole and a genuine outlet for goods and
services within the Community, it is essential to modify the rules on transmis-
sion time and to ensure a high level of consumer protection by putting in place
appropriate standards regulating the form and content of such broadcasts;
(37) Whereas it is important for the competent national authorities, in
monitoring the implementation of the relevant provisions, to be able to
distinguish, as regards channels not exclusively devoted to teleshopping,
between transmission time devoted to teleshopping spots, advertising spots
and other forms of advertising on the one hand and, on the other, transmission
time devoted to teleshopping windows; whereas it is therefore necessary and
sufficient that each window be clearly identified by optical and acoustic means
at least at the beginning and the end of the window;
(38) Whereas Directive 89/552/EEC as amended by this Directive applies to
channels exclusively devoted to teleshopping or self-promotion, without con-
ventional programme elements such as news, sports, films, documentaries and
drama, solely for the purposes of these Directives and without prejudice to the
inclusion of such channels in the scope of other Community instruments;
(39) Whereas it is necessary to make clear that self-promotional activities are
a particular form of advertising in which the broadcaster promotes its own
products, services, programmes or channels; whereas, in particular, trailers
consisting of extracts from programmes should be treated as programmes;
whereas self-promotion is a new and relatively unknown phenomenon and
provisions concerning it may therefore be particularly subject to review in
future examinations of this Directive;
(40) Whereas it is necessary to clarify the rules for the protection of the
physical, mental and moral development of minors; whereas the establishment
of a clear distinction between programmes that are subject to an absolute ban
and those that may be authorized subject to the use of appropriate technical
means should satisfy concern about the public interest expressed by Member
States and the Community;
(41) Whereas none of the provisions of this Directive that concern the
protection of minors and public order requires that the measures in question
must necessarily be implemented through the prior control of television
broadcasts;
(42) Whereas an investigation by the Commission, in liaison with the
competent Member State authorities, of the possible advantages and draw-
backs of further measures to facilitate the control exercised by parents or
97/36/EC 696
guardians over the programmes that minors may watch shall consider, inter
alia, the desirability of:
— the requirement for new television sets to be equipped with a technical
device enabling parents or guardians to filter out certain programmes,
— the setting up of appropriate rating systems,
— encouraging family viewing policies and other educational and awareness
measures,
- taking into account experience gained in this field in Europe and else-
where as well as the views of interested parties such as broadcasters,
producers, educationalists, media specialists and relevant associations,
with a view to presenting, if necessary before the deadline laid down in
Article 26, appropriate proposals for legislative or other measures;
(43) Whereas it is appropriate to amend Directive 89/552/EEC to allow
natural or legal persons whose activities include the manufacture or-the sale of
medicinal products and medical treatment available only on prescription to
sponsor television programmes, provided that such sponsorship does not
circumvent the prohibition of television advertising for medicinal products
and medical treatment available only on prescription;
(44) Whereas the approach in Directive 89/552/EEC and this Directive has
been adopted to achieve the essential harmonization necessary and sufficient to
ensure the free movement of television broadcasts in the Community; whereas
Member States remain free to apply to broadcasters under their jurisdiction
more detailed or stricter rules in the fields coordinated by this Directive,
including, inter alia, rules concerning the achievement of language policy goals,
protection of the public interest in terms of television’s role as a provider of
information, education, culture and entertainment, the need to safeguard
pluralism in the information industry and the media, and the protection of
competition with a view to avoiding the abuse of dominant positions and/or
the establishment or strengthening of dominant positions by mergers, agree-
ments, acquisitions or similar initiatives; whereas such rules must be compa-
tible with Community law;
(45) Whereas the objective of supporting audiovisual production in Europe

can be pursued within the Member States in the framework of the organization
of their broadcasting services, inter alia, through the definition of a public
interest mission for certain broadcasting organizations, including the obliga-
tion to contribute substantially to investment in European production;
(46) Whereas Article B of the Treaty on European Union states that one of
the objectives the Union shall set itself is to maintain in full the ‘acquis
communautaire’,
697 Broadcasting

Article 1
L. in Article 1:
(a) the following new point (b) shall be inserted:
‘(b) ‘broadcaster’ means the natural or legal person who has editorial
responsibility for the composition of schedules of television programmes
within the meaning of (a) and who transmits them or has them
transmitted by third parties;’
(b) the former point (b) shall become point (c) and shall read as follows:
‘(c) ‘television advertising’ means any form of announcement broadcast
whether in return for payment or for similar consideration or broadcast
for self-promotional purposes by a public or private undertaking in
connection with a trade, business, craft or profession in order to promote
the supply of goods or services, including immovable property, rights and
obligations, in return for payment;
(c) the former points (c) and (d) shall become points (d) and (e);
(d) the following point shall be added:
‘(f) ‘teleshopping’ means direct offers broadcast to the public with a view
to the supply of goods or services, including immovable property, rights
and obligations, in return for payment.
Z. Article 2 shall be replaced by the following:
‘Article 2
ite Each Member State shall ensure that all television broadcasts transmitted
by broadcasters under its jurisdiction comply with the rules of the system
of law applicable to broadcasts intended for the public in that Member
State.
For the purposes of this Directive the broadcasters under the jurisdiction
of a Member State are:
- those established in that Member State in accordance with para-
graph 3;
= those to whom paragraph 4 applies.
For the purposes of this Directive, a broadcaster shall be deemed to be
established in a Member State in the following cases:
(a) the broadcaster has its head office in that Member State and the
editorial decisions about programme schedules are taken in that
Member State;
(b) if a broadcaster has its head office in one Member State but
editorial decisions on programme schedules are taken in another
Member State, it shall be deemed to be established in the Member
State where a significant part of the workforce involved in the
97/36/EC 698
pursuit of the television broadcasting activity operates; if a sig-

nificant part of the workforce involved in the pursuit of the
television broadcasting activity operates in each of those Member
States, the broadcaster shall be deemed to be established in the
Member State where it has its head office; if a significant part of the
workforce involved in the pursuit of the television broadcasting
activity operates in neither of those Member States, the broadcaster
shall be deemed to be established in the Member State where it first
began broadcasting in accordance with the system of law of that
Member State, provided that it maintains a stable and effective link
with the economy of that Member State;
(c) if a broadcaster has its head office in a Member State but decisions
on programme schedules are taken in a third country, or vice-versa,
it shall be deemed to be established in the Member State concerned,
provided that a significant part of the workforce involved in the
pursuit of the television broadcasting activity operates in that
Member State.
Broadcasters to whom the provisions of paragraph 3 are not applicable
shall be deemed to be under the jurisdiction of a Member State in the
following cases:
(a) they use a frequency granted by that Member State;
(b) although they do not use a frequency granted by a Member State
they do use a satellite capacity appertaining to that Member State;
(c) although they use neither a frequency granted by a Member State
nor a Satellite capacity appertaining to a Member State they do use
a satellite up-link situated in that Member State.
If the question as to which Member State has jurisdiction cannot be
determined in accordance with paragraphs 3 and 4, the competent
Member State shall be that in which the broadcaster is established within
the meaning of Articles 52 and following of the Treaty establishing the
European Community.
This Directive shall not apply to broadcasts intended exclusively for
reception in third countries, and which are not received directly or
indirectly by the public in one or more Member States,’;
a the following Article shall be inserted:
‘Article 2a
sig Member States shall ensure freedom of reception and shall not restrict
retransmissions on their territory of television broadcasts from other
Member States for reasons which fall within the fields coordinated by this
Directive.
Member States may, provisionally, derogate from paragraph 1 if the
following conditions are fulfilled:
699 Broadcasting
festly, seriously and gravely infringes Article 22 (1) or (2) and/or

Article 22a;
provision(s) referred to in (a) on at least two prior occasions;
Commission in writing of the alleged infringements and of the
measures it intends to take should any such infringement occur
again;
(d) consultations with the transmitting Member State and the Commis-
sion have not produced an amicable settlement within 15 days of
the notification provided for in (c), and the alleged infringement
persists.
The Commission shall, within two months following notification of the
measures taken by the Member State, take a decision on whether the
measures are compatible with Community law. If it decides that they are
not, the Member State will be required to put an end to the measures in
question as a matter of urgency.
2 Paragraph 2 shall be without prejudice to the application of any
procedure, remedy or sanction to the infringements in question in the Member
State which has jurisdiction over the broadcaster concerned.;
‘Article 3
1. | Member States shall remain free to require television broadcasters under
their jurisdiction to comply with more detailed or stricter rules in the
areas covered by this Directive.
2. Member States shall, by appropriate means, ensure, within the frame-
tion effectively comply with the provisions of this Directive.
3. | The measures shall include the appropriate procedures for third parties
directly affected, including nationals of other Member States, to apply to
the competent judicial or other authorities to seek effective compliance
according to national provisions.
Article 3a
ie Each Member State may take measures in accordance with Community
law to ensure that broadcasters under its jurisdiction do not broadcast on
an exclusive basis events which are regarded by that Member State as
being of major importance for society in such a way as to deprive a
substantial proportion of the public in that Member State of the
possibility of following such events via live coverage or deferred coverage
on free television. If it does so, the Member State concerned shall draw
up a list of designated events, national or non-national, which it considers
to be of major importance for society. It shall do so in a clear and
97/36/EC 700
transparent manner in due and effective time. In so doing the Member

State concerned shall also determine whether these events should be
available via whole or partial live coverage, or where necessary or
appropriate for objective reasons in the public interest, whole or partial
deferred coverage.
Member States shall immediately notify to the Commission any measures
taken or to be taken pursuant to paragraph 1. Within a period of three
months from the notification, the Commission shall verify that such
measures are compatible with Community law and communicate them
to the other Member States. It shall seek the opinion of the Committee
established pursuant to Article 23a. It shall forthwith publish the
measures taken in the Official Journal of the European Communities
and at least once a year the consolidated list of the measures taken by
Member States.
Member States shall ensure, by appropriate means, within the framework
of their legislation that broadcasters under their jurisdiction do not
exercise the exclusive rights purchased by those broadcasters following
the date of publication of this Directive in such a way that a substantial
proportion of the public in another Member State is deprived of the
possibility of following events which are designated by that other Member
State in accordance with the preceding paragraphs via whole or partial
live coverage or, where necessary or appropriate for objective reasons in
the public interest, whole or partial deferred coverage on free television
as determined by that other Member State in accordance with paragraph
ice
>: in Article 4 (1), the words ‘and teletext services’ shall be replaced by the
words ‘teletext services and teleshopping’;
6. in Article 5, the words ‘and teletext services’ shall be replaced by the
words ‘teletext services and teleshopping’;
cds Article 6 shall be amended as follows:
(a) paragraph | (a) shall be replaced by the following:

‘(a) works originating from Member States;‘
(b) in paragraph 1, the following subparagraph shall be added:
‘Application of the provisions of (b) and (c) shall be conditional on works
originating from Member States not being the subject of discriminatory
measures in the third countries concerned.’;
(c) paragraph 3 shall be replaced by the following:
‘3. The works referred to in paragraph | (c) are works made exclusively
or in co-production with producers established in one or more Member
States by producers established in one or more European third countries
with which the Community has concluded agreements relating to the
audiovisual sector, if those works are mainly made with authors and
workers residing in one or more European States.’;
701 Broadcasting
(d) paragraph 4 shall become paragraph 5 and the following paragraph shall
be inserted:
‘4. Works that are not European works within the meaning of para-
graph 1 but that are produced within the framework of bilateral co-
production treaties concluded between Member States and third coun-
tries shall be deemed to be European works provided that the Community
co-producers supply a majority share of the total cost of the production
and that the production is not controlled by one or more producers
established outside the territory of the Member States.’;;
(e) in the new paragraph 5, the words ‘paragraph 1’ shall be replaced by the
words ‘paragraphs | and 4’;
‘Article 7
Member States shall ensure that broadcasters under their jurisdiction do not
broadcast cinematographic works outside periods agreed with the rights
holders.’;
9. Article 8 shall be deleted;

‘Article 9
This Chapter shall not apply to television broadcasts that are intended for local
audiences and do not form part of a national network.’;
11. the title of Chapter IV shall be replaced by the following:

“Television advertising, sponsorship and teleshopping’.
‘Article 10
1. Television advertising and teleshopping shall be readily recognizable as
such and kept quite separate from other parts of the programme service
by optical and/or acoustic means.
2. Isolated advertising and teleshopping spots shall remain the exception.
3. Advertising and teleshopping shall not use subliminal techniques.
4. Surreptitious advertising and teleshopping shall be prohibited.’
‘Article 11
1. Advertising and teleshopping spots shall be inserted between pro-
grammes. Provided the conditions set out in paragraphs 2 to 5 are
fulfilled, advertising and teleshopping spots may also be inserted during
programmes in such a way that the integrity and value of the programme,
taking into account natural breaks in and the duration and nature of the
programme, and the rights of the rights holders are not prejudiced.
97/36/EC 702
2. Inprogrammes consisting of autonomous parts, or in sports programmes

and similarly structured events and performances containing intervals,
advertising and teleshopping spots shall only be inserted between the
parts or in the intervals.
3. | The transmission of audiovisual works such as feature films and films
grammes and documentaries), provided their scheduled duration is more
than 45 minutes, may be interrupted once for each period of 45 minutes.
A further interruption shall be allowed if their scheduled duration is at
least 20 minutes longer than two or more complete periods of 45 minutes.
4. Where programmes, other than those covered by paragraph 2, are
interrupted by advertising or teleshopping spots, a period of at least 20
minutes should elapse between each successive advertising break within
the programme.
5. Advertising and teleshopping shall not be inserted in any broadcast of a
religious service. News and current affairs programmes, documentaries,
religious programmes and children’s programmes, when their scheduled
duration is less than 30 minutes, shall not be interrupted by advertising or
by teleshopping. If their scheduled duration is 30 minutes or longer, the
provisions of the previous paragraphs shall apply.’;
14. in Article 12, the introductory words shall be replaced by the following:
“Television advertising and teleshopping shall not:
‘Article 13
All forms of television advertising and teleshopping for cigarettes and other
tobacco products shall be prohibited.;
16. in Article 14, the present text shall become paragraph | and the following
paragraph shall be added:
‘2. Teleshopping for medicinal products which are subject to a marketing

authorization within the meaning of Council Directive 65/65/EEC of 26
January 1965 on the approximation of provisions laid down by law, regulation
or administrative action relating to medicinal products (*), as well as teleshop-
ping for medical treatment, shall be prohibited.
(*) OJ No 22, 9. 2. 1965, p. 369. Directive as last amended by Directive 93/39/EEC (OJ No L
214, 24. 8. 1993, p. 22),
17. in Article 15, the introductory words shall be replaced by the following:
‘Television advertising and teleshopping for alcoholic beverages shall comply
with the following criteria:’;
18. in Article 16, the present text shall become paragraph | and the following
paragraph shall be added:
703 Broadcasting
‘2. Teleshopping shall comply with the requirements referred to in paragraph

1 and, in addition, shall not exhort minors to contract for the sale or rental of
goods and services.’;;
19. Article 17 shall be amended as follows:
(a) paragraph 2 shall be replaced by the following:
‘2. Television programmes may not be sponsored by undertakings
whose principal activity is the manufacture or sale of cigarettes
and other tobacco products.
(b) paragraph 3 shall become paragraph 4 and the following paragraph shall
be inserted:
‘3. Sponsorship of television programmes by undertakings whose
activities include the manufacture or sale of medicinal products
and medical treatment may promote the name or the image of the
undertaking but may not promote specific medicinal products or
medical treatments available only on prescription in the Member
State within whose jurisdiction the broadcaster falls.’
‘Article 18
i The proportion of transmission time devoted to teleshopping spots,
advertising spots and other forms of advertising, with the exception of
teleshopping windows within the meaning of Article 18a, shall not exceed
20 % of the daily transmission time. The transmission time for advertising
spots shall not exceed 15 % of the daily transmission time.
The proportion of advertising spots and teleshopping spots within a given
clock hour shall not exceed 20 %.
For the purposes of this Article, advertising does not include:
- announcements made by the broadcaster in connection with its own
programmes and ancillary products directly derived from those
programmes;
_ public service announcements and charity appeals broadcast free of
charge’;
ON the following Article shall be inserted:
‘Article 18a
ie Windows devoted to teleshopping broadcast by a channel not exclusively
devoted to teleshopping shall be of a minimum uninterrupted duration of
15 minutes.
The maximum number of windows per day shall be eight. Their overall
duration shall not exceed three hours per day. They must be clearly
identified as teleshopping windows by optical and acoustic means.’;
97/36/EC 704
‘Article 19
Chapters I, II, IV, V, VI, VIa and VII shall apply mutatis mutandis to channels
exclusively devoted to teleshopping. Advertising on such channels shall be
allowed within the daily limits established by Article 18 (1). Article 18 (2) shall
not apply.
‘Article 19a
Chapters I, II, IV, V, VI, Va and VII shall apply mutatis mutandis to channels
exclusively devoted to self-promotion. Other forms of advertising on such
channels shall be allowed within the limits established by Article 18 (1) and
(2). This provision in particular shall be subject to review in accordance with
Article 26.;;
‘Article 20
Community law, lay down conditions other than those laid down in Article 11
(2) to (5) and Articles 18 and 18a in respect of broadcasts intended solely for
the national territory which cannot be received, directly or indirectly by the
public, in one or more other Member States.’;
25. Article 21 shall be deleted.
26. the title of Chapter V shall be replaced by the following:
‘Protection of minors and public order’;
‘Article 22
1. Member States shall take appropriate measures to ensure that television
broadcasts by broadcasters under their jurisdiction do not include any
programmes which might seriously impair the physical, mental or moral
development of minors, in particular programmes that involve porno-
graphy or gratuitous violence.
2. The measures provided for in paragraph | shall also extend to other
programmes which are likely to impair the physical, mental or moral
development of minors, except where it is ensured, by selecting the time
of the broadcast or by any technical measure, that minors in the area of
transmission will not normally hear or see such broadcasts.
3. Furthermore, when such programmes are broadcast in unencoded form
Member States shall ensure that they are preceded by an acoustic warning
or are identified by the presence of a visual symbol throughout their
duration.’;

705 Broadcasting
‘Article 22a
Member States shall ensure that broadcasts do not contain any incitement to
hatred on grounds of race, sex, religion or nationality;
‘Article 22b
is The Commission shall attach particular importance to application of this
Chapter in the report provided for in Article 26.
2. The Commission shall within one year from the date of publication of
this Directive, in liaison with the competent Member State authorities,
carry out an investigation of the possible advantages and drawbacks of
further measures with a view to facilitating the control exercised by
parents or guardians over the programmes that minors may watch. This
study shall consider, inter alia, the desirability of:
- the requirement for new television sets to be equipped with a
technical device enabling parents or guardians to filter out certain
programmes;
- the setting up of appropriate rating systems,
— encouraging family viewing policies and other educational and
awareness measures,
- taking into account experience gained in this field in Europe and
elsewhere as well as the views of interested parties such as broad-
casters, producers, educationalists, media specialists and relevant
associations.’;
30. Article 23 (1) shall be replaced by the following:

Without prejudice to other provisions adopted by the Member States
remedies. Member States shall ensure that the actual exercise of the right
of reply or equivalent remedies is not hindered by the imposition of
unreasonable terms or conditions. The reply shall be transmitted within a
reasonable time subsequent to the request being substantiated and at a
time and in a manner appropriate to the broadcast to which the request
tefers::
a1, after Article 23, the following new Chapter VIa shall be inserted:
‘CHAPTER Vla
Contact committee
Article 23a
ie A contact committee shall be set up under the aegis of the Commission. It
shall be composed of representatives of the competent authorities of the
97/36/EC 706
Member States. It shall be chaired by a representative of the Commission

and meet either on his initiative or at the request of the delegation of a
Member State.
2. The tasks of this committee shall be:
(a) to facilitate effective implementation of this Directive through
regular consultation on any practical problems arising from its
application, and particularly from the application of Article 2, as
well as on any other matters on which exchanges of views are
deemed useful;
(b) to deliver own-initiative opinions or opinions requested by the
Commission on the application by the Member States of the
provisions of this Directive;
(c) to be the forum for an exchange of views on what matters should be
dealt with in the reports which Member States must submit
pursuant to Article 4 (3), on the methodology of these, on the terms
of reference for the independent study referred to in Article 25a, on
the evaluation of tenders for this and on the study itself;
(d) to discuss the outcome of regular consultations which the Commis-
sion holds with representatives of broadcasting organizations,
producers, consumers, manufacturers, service providers and trade
unions and the creative community;
(e) to facilitate the exchange of information between the Member
States and the Commission on the situation and the development
of regulatory activities regarding television broadcasting services,
taking account of the Community’s audiovisual policy, as well as
relevant developments in the technical field;
(f) to examine any development arising in the sector on which an
exchange of views appears useful.’;
‘Article 25a
A further review as provided for in Article 4 (4) shall take place before 30 June
2002. It shall take account of an independent study on the impact of the
measures in question at both Community and national level’;
‘Article 26
Not later than 31 December 2000, and every two years thereafter, the
Commission shall submit to the European Parliament, the Council and the
Economic and Social Committee a report on the application of this Directive
as amended and, if necessary, make further proposals to adapt it to develop-
ments in the field of television broadcasting, in particular in the light of recent
technological developments.‘
707 Broadcasting
Article 2
Je Member States shall bring into force the laws, regulations and adminis-
trative provisions necessary to comply with this Directive not later than
31 December 1998. They shall immediately inform the Commission
thereof.
reference to this Directive or be accompanied by such reference on the
occasion of their official publication. The methods of making such
De Member States shall communicate to the Commission the text of the
this Directive.
Article 3
This Directive shall enter into force on the date of its publication in the Official
Article 4

Done at Luxembourg, 30 June 1997.
For the Parliament
The President
J. M. GIL-ROBLES
For the Council

The President
A. NUIS

(2) OJ No C 301, 13. 11. 1995, p. 35.
(3) Opinion of the European Parliament of 14 February 1996 (OJ No C 65, 4. 3. 1996, p.113).
Council Common Position of 18 July 1996 (OJ No C 264, 11. 9. 1996, p. 52) and Decision of
the European Parliament of 12 November 1996 (OJ No C 362, 2. 12. 1996, p. 56). Decision of
the European Parliament of 10 June 1997 and Decision of the Council of 19 June 1997.
(4) OJ No L 298, 17. 10. 1989, p. 23. Directive as amended by the 1994 Act of Accession.
(5) Case C-221/89, Queen v. Secretary of State for Transport, ex parte Factortame Ltd. and
Others, (1991) ECR J-3905, paragraph 20.
(6) See, in particular, the judgments in Case 33/74, Van Binsbergen v. Bestuur van de Bed-
rijfsvereniging, (1974) ECR 1299 and in Case C-23/93, TV 10 SA v. Commissariaat voor de
Media, (1994) ECR I-4795.
(7) OJ No L 113, 30. 4. 1992, p. 13.
97/36/EC 708
COMMISSION DECLARATION
Article 23a (1)
(Contact Committee)
The Commission undertakes, at its own responsibility, to inform the European

Parliament’s competent committee of the outcome of the meetings of the
Contact Committee. It will provide that information in good time and in an
appropriate manner.
2.2. UNITED NATIONS (U.N.)
UN RESOLUTION 37192
PRINCIPLES GOVERNING THE USE BY STATES OF ARTIFICIAL EARTH SATELLITES
FOR INTERNATIONAL DIRECT TELEVISION BROADCASTING ADOPTED ON
DECEMBER I0, 1982
The General Assembly,

Recalling its resolution 2916 (X XVII) of 9 November 1972, in which it stressed
the necessity of elaborating principles governing the use by States of artificial
earth satellites for international direct television broadcasting, and mindful of
the importance of concluding an international agreement or agreements,
Recalling further its resolutions 3182 (XXVIII) of 18 December 1973, 3234
(XXIX) of 12 November 1974, 3388 (XXX) of 18 November 1975, 31/8 of 8
November 1976, 32/196 of 20 December 1977, 33/16 of 10 November 1978,
34/66 of 5 December 1979 and 35/14 of 3 November 1980, and its resolution
36/35 of 18 November 1981 in which it decided to consider at its thirty-seventh
session the adoption of a draft set of principles governing the use by States of
artificial earth satellites for international direct television broadcasting,
Noting with appreciation the efforts made in the Committee on the Peaceful
Uses of Outer Space and its Legal Sub-Committee to comply with the
directives issued in the above-mentioned resolutions,
Considering that several experiments of direct broadcasting by satellite have

been carried out and that a number of direct broadcasting satellite systems are
operational in some countries and may be commercialized in the very near
future,
Taking into consideration that the operation of international direct broad-

casting satellites will have significant international political, economic, social
and cultural implications,
Believing that the establishment of principles for international direct television

broadcasting will contribute to the strengthening of international co-operation
in this field and further the purposes and principles of the Charter of the United
Nations,
Adopts the Principles Governing the Use by States of Artificial Earth Satellites
for International Direct Television Broadcasting set forth in the annex to the
present resolution.
100th plenary meeting 10 December 1982
709
710 Broadcasting
ANNEX
Principles governing the use by States of artificial earth satellites for
international direct television broadcasting
Purposes and objectives

Activities in the field of international direct television broadcasting by
satellite should be carried out in a manner compatible with the sovereign
rights of States, including the principle of non-intervention, as well as
with the right of everyone to seek, receive and impart information and
ideas as enshrined in the relevant United Nations instruments.
Such activities should promote the free dissemination and mutual
exchange of information and knowledge in cultural and scientific fields,
assist in educational, social and economic development, particularly in
the developing countries, enhance the qualities of life of all peoples and
provide recreation with due respect to the political and cultural integrity
of States.
These activities should accordingly be carried out in a manner compa-
tible with the development of mutual understanding and the strengthen-
ing of friendly relations and co-operation among all States and peoples in
the interest of maintaining international peace and security.
Applicability of international law

Bw Activities in the field of international direct television broadcasting by
satellite should be conducted in accordance with international law,
including the Charter of the United Nations, the
Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, including the Moon and Other Celestial Bodies,
of 27 January 1967, the relevant provisions of the International Tele-
communication Convention and its Radio Regulations and of interna-
tional instruments relating to friendly relations and co-operation among
States and to human rights.
Rights and benefits
Every State has an equal right to conduct activities in the field of
international direct television broadcasting by satellite and to authorize
such activities by persons and entities under its jurisdiction. All States
and peoples are entitled to and should enjoy the benefits from such
activities. Access to the technology in this field should be available to all
States without discrimination on terms mutually agreed by all concerned.
International co-operation
S Activities in the field of international direct television broadcasting by
satellite should be based upon and encourage international co-operation.
Such co-operation should be the subject of appropriate arrangements.
Special consideration should be given to the needs of the developing
countries in the use of international direct television broadcasting by
satellite for the purpose of accelerating their national development.
UN Resolution 37192 711
Peaceful settlement of disputes

Any international dispute that may arise from activities covered by these
principles should be settled through established procedures for the peace-
ful settlement of disputes agreed upon by the parties to the dispute in
accordance with the provisions of the Charter of the United Nations.
State responsibility
States should bear international responsibility for activities in the field of
international direct television broadcasting by satellite carried out by
them or under their jurisdiction and for the conformity of any such
activities with the principles set forth in this document.
When international direct television broadcasting by satellite is carried
out by an international intergovernmental organization, the responsibil-
ity referred to in paragraph 8 above should be borne both by that
organization and by the States participating in it.
Duty and right to consult
Any broadcasting or receiving State within an international direct
television broadcasting satellite service established between them re-
quested to do so by any other broadcasting or receiving State within the
same service should promptly enter into consultations with the requesting
State regarding its activities in the field of international direct television
broadcasting by satellite, without prejudice to other consultations which
these States may undertake with any other State on that subject.
Copyright and neighbouring rights
Without prejudice to the relevant provisions of international law, States
should co-operate on a bilateral and multilateral basis for protection of
copyright and neighbouring rights by means of appropriate agreements
between the interested States or the competent legal entities acting under
their jurisdiction. In such co-operation they should give special con-
sideration to the interests of developing countries in the use of direct
television broadcasting for the purpose of accelerating their national
development.
Notification to the United Nations
In order to promote international co-operation in the peaceful explora-
tion and use of outer space, States conducting or authorizing activities in
the field of international direct television broadcasting by satellite should
inform the Secretary-General of the United Nations, to the greatest
extent possible, of the nature of such activities. On receiving this
information, the Secretary-General should disseminate it immediately
and effectively to the relevant specialized agencies, as well as to the public
and the international scientific Community.
712 Broadcasting
Consultations and agreements between States

13. A State which intends to establish or authorize the establishment of an
international direct television broadcasting satellite service shall without
delay notify the proposed receiving State or States of such intention and
shall promptly enter into consultation with any of those States which so
requests.
14. An international direct television broadcasting satellite service shall only
be established after the conditions set forth in paragraph 13 above have
been met and on the basis of agreements and/or arrangements in
conformity with the relevant instruments of the International Telecom-
munication Union and in accordance with these principles.
15. With respect to the unavoidable overspill of the radiation of the satellite
signal, the relevant instruments of the International Telecommunication
Union shall be exclusively applicable.
Recorded Votes on the Resolution

In favour: Algeria, Argentina, Bahrain, Bangladesh, Bhutan, Bolivia, Botswa-
na, Brazil, Bulgaria, Burma, Byelorussian Soviet Socialist Republic, Central
African Republic, Chile, China, Colombia, Congo, Cuba, Cyprus, Czechoslo-
vakia, Democratic Yemen, Dominican Republic, Ecuador, Egypt, Ethiopia,
Fiji, Gabon, German Democratic Republic, Ghana, Guatemala, Guyana,
Honduras, Hungary, India, Indonesia, Iraq, Jamaica, Jordan, Kenya, Kuwait,
Liberia, Libyan Arab Jamahiriya, Madagascar, Malaysia, Maldives, Mali,
Mauritania, Mexico, Mongolia, Mozambique, Nepal, Nicaragua, Nigeria,
Oman, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Qatar, Roma-
nia, Rwanda, Saudi Arabia, Senegal, Sierra Leone, Singapore, Somalia, Sudan,
Suriname, Syrian Arab Republic, Thailand, Togo, Tunisia, Turkey, Ukrainian
Soviet Socialist Republic, Union of Soviet Socialist Republics, United Arab
Emirates, United Republic of Cameroon, United Republic of Tanzania, Upper
Volta, Uruguay, Venezuela, Viet Nam, Yemen, Yugoslavia, Zaire, Zambia,
Zimbabwe.
Against: Belgtum, Denmark, France, Germany, Federal Republic of, Iceland,

Israel, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Spain,
United Kingdom of Great Britain and Northern Ireland, United States of
America.
Abstaining: Australia, Austria, Canada, Finland, Greece, Iran (Islamic Repub-

lic of), Ireland, Lebanon, Morocco, New Zealand, Sweden.
UNESCO DECLARATION OF GUIDING PRINCIPLES ON THE USE OF SATELLITE
BROADCASTING FOR THE FREE FLOW OF INFORMATION, THE SPREAD OF
EDUCATION AND GREATER CULTURAL EXCHANGE
The General Conference of the United Nations Educational, Scientific and

Cultural Organization meeting in Paris at its seventeenth session in 1972,
Recognizing that the development of communication satellites capable of

broadcasting programmes for community or individual reception establishes
a new dimension in international communication,
Recalling that under its Constitution the purpose of Unesco is to contribute to

peace and security by promoting collaboration among the nations through
education, science and culture, and that, to realize this purpose, the Organiza-
tion will collaborate in the work of advancing the mutual knowledge and
understanding of peoples through all means of mass communication and to
that end recommend such international agreements as may be necessary to
promote the free flow of ideas by word and image,
Recalling that the Charter of the United Nations specifies, among the purposes
and principles of the United Nations, the development of friendly relations
among nations based on respect for the principle of equal rights, the non-
interference in matters within the domestic jurisdiction of any State, the
achievement of international co-operation and the respect for human rights
and fundamental freedoms,
Bearing in mind that the Universal Declaration of Human Rights proclaims
that everyone has the right to seek, receive and impart information and ideas
through any media and regardless of frontiers, that everyone has the right to
education and that everyone has the right freely to participate in the cultural
life of the community, as well as the right to the protection of the moral and
material interests resulting from any scientific, literary or artistic production of
which he is the author.
Recalling the Declaration of Legal Principles Governing the Activities of
States in the Exploration and Use of Outer Space (resolution 1962 (XVIII) of
13 December 1963), and the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies, of 1967 (hereinafter referred to as the Outer Space
Treaty),
Taking account of United Nations General Assembly resolution 110 (11) of 3
November 1947, condemning propaganda designed or likely to provoke or
encourage any threat to the peace, breach of the peace or act of aggression,
which resolution as stated in the preamble to the Outer Space Treaty is
applicable to outer space; and the United Nations General Assembly resolution
1721 D (XVI) of 20 December 1961 declaring that communication by means of
133
714 Broadcasting
satellites should be available as soon as practicable on a global and non-

discriminatory basis,
Bearing in mind the Declaration of the Principles of International Cultural Co-

operation adopted by the General Conference of Unesco, at its fourteenth
session,
Considering that radio frequencies are a limited natural resource belonging to
all nations, that their use is regulated by the International Telecommunications
Convention and its Radio Regulations and that the assignment of adequate
frequencies is essential to the use of satellite broadcasting for education,
science, culture and information,
Noting the United Nations General Assembly resolution 2733 (XXV) of 16
December 1970 recommending that Member States, regional and international
organizations, including broadcasting associations, should promote and en-
courage international co-operation at regional and other levels in order to
allow all participating parties to share in the establishment and operation of
regional satellite broadcasting services,
Noting further that the same resolution invites Unesco to continue to promote
the use of satellite broadcasting for the advancement of education and training,
science and culture, and in consultation with appropriate intergovernmental
and non-governmental organizations and broadcasting associations, to direct
its efforts toward the solution of problems falling within its mandate,
Proclaims on the 15th day of November 1972, this Declaration of Guiding
Principles on the Use of Satellite Broadcasting for the Free Flow of Informa-
tion, the Spread of Education and Greater Cultural Exchange:
ArticleI
The use of Outer Space being governed by international law, the development
of satellite broadcasting shall be guided by the principles and rules of
international law, in particular the Charter of the United Nations and the
Outer Space Treaty.
Article IT
1. Satellite broadcasting shall respect the sovereignty and equality of all
States.
2. Satellite broadcasting shall be apolitical and conducted with due regard
for the rights of individual persons and non-governmental entities, as
recognized by States and international law.
Article III
1. The benefits of satellite broadcasting should be available to all countries
without discrimination and regardless of their degree of development.
2. The use of satellites for broadcasting should be based on international co-
operation, world-wide and regional, intergovernmental and professional.
UNESCO Declaration 715
Article IV
di Satellite broadcasting provides a new means of disseminating knowledge
and promoting better understanding among peoples.
pi The fulfilment of these potentialities requires that account be taken of the
needs and rights of audiences, as well as the objective of peace, friendship
and co-operation between peoples, and of economic, social and cultural
progress.
Article V
ie The objective of satellite broadcasting for the free flow of information is
to ensure the widest possible dissemination, among the peoples of the
world, of news of all countries, developed and developing alike.
Satellite broadcasting, making possible instantaneous world-wide disse-
mination of news, requires that every effort be made to ensure the factual
accuracy of the information reaching the public. News broadcasts shall
identify the body which assumes responsibility for the news programme
as a whole, attributing where appropriate particular news items to their
source.
Article VI
ile The objectives of satellite broadcasting for the spread of education are to
accelerate the expansion of education, extend educational opportunities,
improve the content of school curricula, further the training of educators,
assist in the struggle against illiteracy, and help ensure life-long educa-
tion.
Each country has the right to decide on the content of the educational
programmes broadcast by satellite to its people and in cases where such
programmes are produced in co-operation with other countries, to take
part in their planning and production, on a free and equal footing.
Article VII
le The objective of satellite broadcasting for the promotion of cultural
exchange is to foster greater contact and mutual understanding between
peoples by permitting audiences to enjoy, on an unprecedented scale,
programmes on each other’s social and cultural life including artistic
performances and sporting and other events.
Cultural programmes, while promoting the enrichment of all cultures,
should respect the distinctive character, the value and the dignity of each,
and the right of all countries and peoples to preserve their cultures as part
of the common heritage of mankind.
Article VII
Broadcasters and their national, regional and international associations should
be encouraged to co-operate in the production and exchange of programmes
and in all other aspects of satellite broadcasting including the training of
technical and programme personnel.
716 Broadcasting
Article IX
1. In order to further the objectives set out in the preceding articles, it is
necessary that States, taking into account the principle of freedom of
information, reach or promote prior agreements concerning direct
satellite broadcasting to the population of countries other than the
country of origin of the transmission.
2. With respect to commercial advertising, its transmission shall be subject
to specific agreement between the originating and receiving countries.
Article X
In the preparation of programmes for direct broadcasting to other countries,
account shall be taken of differences in the national laws of the countries of
reception.
Article XI
The principles of this Declaration shall be applied with due regard tor human
rights and fundamental freedoms.
BRUSSELS CONVENTION RELATING TO THE DISTRIBUTION OF PROGRAMME-
CARRYING SIGNALS TRANSMITTED BY SATELLITE, 21 May, 1974
The Contracting States,

Aware that the use of satellites for the distribution of programme carrying
signals is rapidly growing both in volume and geographical coverage;
Concerned that there is no world-wide system to prevent distributors from

distributing programme-carrying signals transmitted by satellite which were
not intended for those distributors, and that this lack is likely to hamper the use
of satellite communications;
Recognizing, in this respect, the importance of the interests of authors,

performers, producers of phonograms and broadcasting organizations;
Convinced that an international system should be established under which
measures would be provided to prevent distributors from distributing pro-
gramme-carrying signals, transmitted by satellite which were not intended for
those distributors;
Conscious of the need not to impair in any way international agreements
already in force, including the International Telecommunication Convention
and the Radio Regulations annexed to that Convention, and in particular in no
way to prejudice wider acceptance of the Rome Convention of October 26,
1961, which affords protection to performers, producers of phonograms and
broadcasting organizations,
Have agreed as follows:
Article 1
For the purposes of this Convention:
(i) ‘signal’ is an electronically-generated carrier capable of transmitting
programmes;
(ii) ‘programme’ is a body of live or recorded material consisting of images,
sounds or both, embodied in signals emitted for the purpose of ultimate
distribution;
(iii) ‘satellite’ is any device in extraterrestrial space capable of transmitting
signals;
(iv) ‘emitted signal’ or ‘signal emitted’ is any programme-carrying signal that
goes to or passes through a satellite;
(v) ‘derived signal’ is a signal obtained by modifying the technical character-
istics of the emitted signal, whether or not there have been one or more
intervening fixations;
(vi) ‘originating organization’ is the person or legal entity that decides what
programme the emitted signals will carry;
(vii) ‘distributor’ is the person or legal entity that decides that the transmission
of the derived signals to the general public or any section thereof should
take place;
Haley,
718 Broadcasting
(viii) ‘distribution’ is the operation by which a distributor transmits derived

signals to the general public or any section thereof.
Article 2
(1) Each Contracting State undertakes to take adequate measures to prevent
the distribution on or from its territory of any programme-carrying
signal by any distributor for whom the signal emitted to or passing
through the satellite is not intended. This obligation shall apply where
the originating organization is a national of another Contracting State
and where the signal distributed is a derived signal.
(2) In any Contracting State in which the application of the measures
referred to in paragraph (1) is limited in time, the duration thereof shall
be fixed by its domestic law. The Secretary-General of the United Nations
shall be notified in writing of such duration at the time of ratification,
acceptance or accession, or if the domestic law comes into force or is
changed thereafter, within six months of the coming into force of that law
or of its modification.
(3) The obligation provided for in paragraph (1) shall not apply to the
distribution of derived signals taken from signals which have already
been distributed by a distributor for whom the emitted signals were
intended.
Article 3
This Convention shall not apply where the signals emitted by or on behalf of
the originating organization are intended for direct reception from the satellite
by the general public.
Article 4
No Contracting State shall be required to apply the measures referred to in
Article 2 (1) where the signal distributed on its territory by a distributor for
whom the emitted signal is not intended
(i) carries short excerpts of the programme carried by the emitted signal,
consisting of reports of current events, but only to the extent justified by
the informatory purpose of such excerpts, or
(ii) carries, as quotations, short excerpts of the programme carried by the
emitted signal, provided that such quotations are compatible with fair
practice and are justified by the informatory purpose of such quotations,
or
(ili) carries. where the said territory is that of a Contracting State regarded as
a developing country in conformity with the established practice of the
General Assembly of the United Nations, a programme carried by the
emitted signal, provided that the distribution is solely for the purpose of
teaching, including teaching in the framework of adult education or
scientific research.
Brussels Convention, 21 May 1974 719
Article 5
No Contracting State shall be required to apply this Convention with respect to
any signal emitted before this Convention entered into force for that State.
Article6
This Convention shall in no way be interpreted to limit or prejudice the
protection secured to authors, performers, producers of phonograms, or
broadcasting organizations, under any domestic law or international agree-
ment.
Article 7
This Convention shall in no way be interpreted as limiting the right of any
Contracting State to apply its domestic law in order to prevent abuses of
monopoly.
Article 8
(1) Subject to paragraphs (2) and (3), no reservation to this Convention shall
be permitted.
(2) Any Contracting State whose domestic law, on May 21, 1974, so provides
may, by a written notification deposited with the Secretary-General of the
United Nations, declare that, for its purposes, the words ‘where the
originating organization is a national of another Contracting State’
appearing in Article 2 (1) shall be considered as if they were replaced by
the words ‘where the signal is emitted from the territory of another
Contracting State’.
(3) (a) Any Contracting State which, on May 21, 1974, limits or denies
protection with respect to the distribution of programme-carrying
signals by means of wires, cable or other similar communications
channels to subscribing members of the public may, by a written
notification deposited with the Secretary-General of the United
Nations, declare that, to the extent that and as long as its domestic
law limits or denies protection, it will not apply this Convention to
such distributions.
(b) Any State that has deposited a notification in accordance with
subparagraph (a) shall notify the Secretary-General of the United
Nations in writing, within six months of their coming into force, of
any changes in its domestic law whereby the reservation under that
subparagraph becomes inapplicable or more limited in scope.
Article 9
(1) This Convention shall be deposited with the Secretary-General of the
United Nations. It shall be open until March 31, 1975, for signature by
any State that is a member of the United Nations, any of the Specialized
Agencies brought into relationship with the United Nations, or the
International Atomic Energy Agency, or is a party to the Statute of the
International Court of Justice.
720 Broadcasting
(2) This Convention shall be subject to ratification or acceptance by the

signatory States. It shall be open for accession by any State referred to in
paragraph (1).
(3) Instruments of ratification, acceptance or accession shall be deposited
with the Secretary-General of the United Nations.
(4) It is understood that, at the time a State becomes bound by this
Convention, it will be in a position in accordance with its domestic law
to give effect to the provisions of the Convention.
Article 10
(1) This Convention shall enter into force three months after the deposit of
the fifth instrument of ratification, acceptance or accession.
(2) For each State ratifying, accepting or acceding to this Convention after
the deposit of the fifth instrument of ratification, acceptance or accession,
this Convention shall enter into force three months after the deposit of its
instrument.
Article 11
(1) Any Contracting State may denounce this Convention by written
notification deposited with the Secretary-General of the United Nations.
(2) Denunciation shall take effect twelve months after the date on which the
notification referred to in paragraph (1) is received.
Article 12
(1) This Convention shall be signed in a single copy in English, French,
Russian and Spanish, the four texts being equally authentic.
(2) Official texts shall be established by the Director-General of the United
Nations Educational, Scientific and Cultural Organization and the
Director-General of the World Intellectual Property Organization, after
consultation with the interested Governments, in the Arabic, Dutch,
German, Italian and Portuguese languages.
(3) The Secretary-General of the United Nations shall notify the States
referred to in Article 9 (1), as well as the Director-General of the United
Nations Educational, Scientific and Cultural Organization, the Director
General of the World Intellectual Property Organization, the Director
General of the International Labour Office and the Secretary-General of
the International Telecommunication Union, of
(i) signatures to this Convention;
(ii) the deposit of instruments of ratification, acceptance or accession;
(ii) the date of entry into force of this Convention under Article 10 (1);
(iv) the deposit of any notification relating to Article 2 (2) or Article 8
(2) or (3), together with its text;
(v) the receipt of notifications of denunciation.
(4) The Secretary-General of the United Nations shall transmit two certified
copies of this Convention to all States referred to in Article 9 (1).
In witness whereof, the undersigned, being duly authorized, have signed this
Convention.
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3.1. UNITED NATIONS (U.N)
UN RESOLUTION 41/65 PRINCIPLES RELATING TO REMOTE SENSING OF THE

EARTH FROM OUTER SPACE, 3 DECEMBER, 1986
The General Assembly,
Recalling its resolution 3234 (XXIX) of 12 November 1974, in which it
requested the Committee on the Peaceful Uses of Outer Space and its Legal
Sub-Committee to consider the question of the legal implications of remote
sensing of the Earth from space, as well as its resolutions 3388 (XXX) of 18
November 1975, 31/8 of 8 November 1976, 32/196 A of 20 December 1977,
33/16 of 10 November 1978, 34/66 of 5 December 1979, 35/14 of 13
November 1980, 36/35 of 18 November 1981, 37/89 of 10 December 1982,
38/80 of 15 December 1983, 39/96 of 14 December 1984 and 40/162 of 16
December 1985, in which it called for a detailed consideration of the legal
implications of remote sensing of the Earth from space, with the aim of
formulating draft principles relating to remote sensing,
Having considered the report of the Committee on the Peaceful Uses of Outer
Space on its twenty-ninth session and the text of the draft principles relating to
remote sensing of the Earth from space, annexed thereto,
Noting with satisfaction that the Committee on the Peaceful Uses of Outer
Space, on the basis of the deliberations of its Legal Sub-Committee, has
endorsed the text of the draft principles relating to remote sensing of the Earth
from space,
Believing that the adoption of the principles relating to remote sensing of the
Earth from space will contribute to the strengthening of international co-
operation in this field,
Adopts the Principles Relating to Remote Sensing of the Earth from Space set
forth in the annex to the present resolution.
Principle I
For the purposes of these principles with respect to remote sensing activities:
(a) The term ‘remote sensing’ means the sensing of the Earth’s surface from
space by making use of the properties of electromagnetic waves emitted,
reflected or diffracted by the sensed objects, for the purpose of improving
natural resources management, land use and the protection of the
environment;
T23
724 Remote Sensing
(b) The term ‘primary data’ means those raw data that are acquired by
remote sensors borne by a space object and that are transmitted or
delivered to the ground from space by telemetry in the form of electro-
magnetic signals, by photographic film, magnetic tape or any other
means;
(c) The term ‘processed data’ means the products resulting from the
processing of the primary data, needed in order to make such data usable:
(d) The term ‘analysed information’ means the information resulting from
the interpretation of processed data, inputs of data and knowledge from
other sources;
(ec) The term ‘remote sensing activities’ means the operation of remote
sensing space systems, primary data collection and storage stations, and
activities in processing, interpreting and disseminating the processed
data.
Principle IT
Remote sensing activities shall be carried out for the benefit and in the interests
of all countries, irrespective of their degree of economic, social or scientific and
technological development, and taking into particular consideration the needs
of the developing countries.
Principle III
Remote sensing activities shall be conducted in accordance with international
law, including the Charter of the United Nations, the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies, and the relevant instruments
of the International Telecommunication Union.
Principle IV
Remote sensing activities shall be conducted in accordance with the principles
contained in article I of the Treaty on Principles Governing the Activities of
States in the Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies, which, in particular provides that the exploration and
use of outer space shall be carried out for the benefit and in the interests of all
countries, irrespective of their degree of economic or scientific development
and stipulates the principle of freedom of exploration and use of outer space on
the basis of equality. These activities shall be conducted on the basis of respect
for the principle of full and permanent sovereignty of all States and peoples
over their own wealth and natural resources, with due regard to the rights and
interests, in accordance with international law, of other States and entities
under their jurisdiction. Such activities shall not be conducted in a manner
detrimental to the legitimate rights and interests of the sensed State.
Principle V
States carrying out remote sensing activities shall promote international co-
operation in these activities. To this end, they shall make available to other
UN Resolution 41/65 725
States opportunities for participation therein. Such participation shall be based

in each case on equitable and mutually acceptable terms.
Principle VI
In order to maximize the availability of benefits from remote sensing activities,
States are encouraged through agreements or other arrangements to provide
for the establishment and operation of data collecting and storage stations and
processing and interpretation facilities, in particular within the framework of
regional agreements or arrangements wherever feasible.
Principle VII
States participating in remote sensing activities shall make available technical
assistance to other interested States on mutually agreed terms.
Principle VIII
The United Nations and the relevant agencies within the United Nations
system shall promote international co-operation, including technical assistance
and co-ordination in the area of remote sensing.
Principle IX
In accordance with article IV of the Convention on Registration of Objects
Launched into Outer Space and article XI of the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space,
including the Moon and Other Celestial Bodies, a State carrying out a
programme of remote sensing shall inform the Secretary-General of the United
Nations. It shall, moreover, make available any other relevant information to
the greatest extent feasible and practicable to any other State, particularly any
developing country that is affected by the programme, at its request.
Principle X
Remote sensing shall promote the protection of the Earth’s natural environ-
ment. To this end, States participating in remote sensing activities that have
identified information in their possession that is capable of averting any
phenomenon harmful to the Earth’s natural environment shall disclose such
information to States concerned.
Principle XI
Remote sensing shall promote the protection of mankind from natural
disasters. To this end, States participating in remote sensing activities that have
identified processed data and analysed information in their possession that
may be useful to States affected by natural disasters, or likely to be affected by
impending natural disasters, shall transmit such data and information to States
concerned as promptly as possible.
Principle XII
As soon as the primary data and the processed data concerning the territory
under its jurisdiction are produced, the sensed State shall have access to them
on a non-discriminatory basis and on reasonable cost terms. The sensed State
726 Remote Sensing
shall also have access to the available analysed information concerning the
territory under its jurisdiction in the possession of any State participating in
remote sensing activities on the same basis and terms, taking particularly into
account the needs and interests of the developing countries.
Principle XIIT
To promote and intensify international co-operation, especially with regard to
the needs of developing countries, a State carrying out remote sensing of the
Earth from outer space shall, upon request, enter into consultations with a
State whose territory is sensed in order to make available opportunities for
participation and enhance the mutual benefits to be derived therefrom.
Principle XIV
In compliance with article VI of the Treaty on Principles Governing the
Activities of States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies, States operating remote sensing satellites
shall bear international responsibility for their activities and assure that such
activities are conducted in accordance with these principles and the norms of
international law, irrespective of whether such activities are carried out by
governmental or non-governmental entities or through international organiza-
tions to which such States are parties. This principle is without prejudice to the
applicability of the norms of international law on State responsibility for
remote sensing activities.
Principle XV
Any dispute resulting from the application of these principles shall be resolved
through the established procedures for the peaceful settlement of disputes.
CONVENTION ON THE TRANSFER AND USE OF DATA OF REMOTE SENSING OF THE
EARTH FROM OUTER SPACE, 19 May, 1978
See:
UN Doc. A/33 of 162 of June 29, 1978
See also:
BV. Disarmament Control
The Convention was signed in Moscow on May 19, 1978, by Cuba, Czechoslo-
vakia, the German Democratic Republic, Hungary, Mongolia, Poland, Roma-
nian and the Union of Soviet Socialist Republics.
The States Parties to this Convention hereinafter referred to as the ‘Contract-
ing Parties’, considering that outer space is free for use by all States without
discrimination of any kind, on a basis of equality and in accordance with
international law, including the charter of the United Nations and the Treaty on
Principles Governing the Activities of States in the Exploration and Use of
Outer Space, including the Moon and Other Celestial Bodies, for the purpose
of carrying on activities in the remote sensing of the Earth from outer space;
believing that in carrying on such activities the sovereign rights of States, in
particular their inalienable right to dispose of their natural resources and of
information concerning those resources, should be respected; reaffirming that
activities in the field of the remote sensing of the Earth from outer space and
international co-operation to this end should promote peace and understand-
ing among States and be carried out for the benefit and in the interests of all
peoples irrespective of their degree of economic or scientific development;
convinced that space technology can provide new valuable information
necessary for the exploration of the natural resources of the Earth, geology,
agriculture, forestry, hydrology, oceanography. geography and cartography,
meteorology, environmental control, and for the solution of other problems
connected with the systematic exploration of the Earth and its surrounding
space in the interests of science and the economic activities of States;
determined to create favourable conditions and necessary technical and
economic prerequisites for expanding co-operation in the effective practical
use of data of the remote sensing of the Earth from outer space, have agreed as
follows:
Article I
For the purposes of this Convention:
(a) The term remote sensing of the Earth from outer space means observa-
tions and measurements of energy and polarization characteristics of self-
radiation and reflected radiation of elements of the land, ocean and
atmosphere of the Earth in different ranges of electromagnetic waves
which facilitate the location, description of the nature and temporal
Tah
728 Remote Sensing
variations of natural parameters and phenomena, natural resources of

the Earth, the environment as well as anthropogenic objects and forma-
tions;
(b) The term ‘ data of the remote sensing of the Earth from outer space’
means the initial data obtained by remote sensors installed on space
objects and transmitted from them by telemetry in the form of electro-
magnetic signals or physically in the form of photographic film or
magnetic tape, as well as preprocessed data derived from the flow of data
which may be used for later analysis;
(c) The term ‘information’ means the end-product of the analytical process
of handling, deciphering and interpreting remote sensing data from outer
space, in combination with the data and evidence obtained from other
sources;
(d) The term ‘natural resources of the Earth’ means natural resources
forming part of the aggregate of natural conditions of the human habitat
and constituting major components of man’s natural environment which
are used in social production for satisfying the material and cultural
requirements of society.
Article IT
The Contracting Parties shall co-operate with each other in the transfer and use
of data of the remote sensing of the Earth from outer space.
Article [IT
The specific list, technical parameters, the volume of the said data, the time-
table of their receipt and conditions of the transfer as well as the degree of
participation of the Contracting Parties concerned in their processing and
thematic interpretation shall be determined by agreement between the Con-
tracting Parties concerned on a bilateral or multilateral basis .
Article IV
A Contracting Party in possession of initial data of the remote sensing of the
Earth from outer space, with a better than 50 metres resolution on the terrain,
relating to the territory of another Contracting Party, shall not disclose or
make them available to anyone except with an explicit consent thereto of the
Contracting Party to which the sensed territories belong, nor shall it use them
or any other data in any way to the detriment of that Contracting Party.
Article V
A Contracting Party that has obtained as a result of the deciphering and
thematic interpretation of any data of the remote sensing of the Earth from
outer space information about the natural resources or the economic potential
of another Contracting Party shall not disclose such information or make it
available to anyone except with an explicit consent thereto of the Contracting
Party to which the sensed territories and natural resources belong, nor shall it
use such or any other information in any way to the detriment of that
Contracting Party.
Convention, 19 May 1978 729
Article VI
The Contracting Parties shall bear responsibility for national activities in the
use of data of the remote sensing of the Earth from outer space relating to the
territories of other Contracting Parties.
Article VIT
The Contracting Parties shall co-operate, subject to agreement on a bilateral or
multilateral basis, in elaborating and developing technical means and methods
necessary for taking measurements, the processing and thematic interpretation
of the data obtained from the remote sensing of the Earth from outer space, as
well as in training appropriate personnel for making an early and most efficient
practical use of modern space technology and data of the remote sensing of the
Earth from outer space.
Article VIII
1. The Contracting Parties shall resolve questions arising in the process of
the implementation of this Convention in the spirit of mutual respect by
negotiation and consultation.
2. In order to resolve questions arising in connection with the implementa-
tion of this Convention, meetings of representatives of the Contracting
Parties concerned may be held, when necessary, by agreement between
such Contracting Parties.
Article IX
Any Contracting Party may propose amendments to this Convention. Amend-
ments shall enter into force for each Contracting Party accepting the amend-
ments upon their approval by two-thirds of the Contracting Parties. An
amendment that has entered into force becomes binding upon the other
Contracting Parties upon their acceptance of such amendment .
Article X
1. This Convention shall be subject to approval of signatory States in
accordance with their legislation. The Convention shall enter into force
on the deposit of instruments of approval by five Governments, including
the Depositary Government of the Convention. For Contracting Parties
whose instruments of approval are deposited after the entry into force of
this Convention, it shall enter into force on the date of the deposit of their
instruments of approval.
2. This Convention shall remain in force for five years. For each of the
Contracting Parties which does not withdraw from the Convention six
months prior to the expiry of the said five-year period and successive five-
year periods, it shall remain in force for each successive period of five
years.
730 Remote Sensing
Article XI
1. | Other States sharing the purposes and principles of the Conven- tion may
accede to this Convention. Instruments of accession shall be deposited
with the depositary of the Convention.
2. Accession of a new State shall be considered to have taken effect 30 days
from the date of receipt by the depositary of the instrument of accession,
who shall promptly notify so all the Contracting Parties.
Article XII
1. Each of the Contracting Parties may withdraw from this Convention by
giving notice to the depositary of the Convention. Such withdrawal shall
take effect 12 months from the date of receipt by the depositary of the
notification.
2. Withdrawal from the Convention shall not affect obligations of co-
operating organisations of the Contracting Parties under the working
agreements or contracts concluded by them.
Article XII
1. | This Convention shall be deposited with the Government of the Union of
Soviet Socialist Republics, which shall act as the depositary.
2. The depositary shall transmit certified copies of this Convention to all the
Contracting Parties and inform them of all notifications received by him.
3. | This Convention shall be registered by the depositary pursuant to Article
102 of the Charter of the United Nations.
Article XIV
This Convention is drawn up in four copies in the Russian, English, French and
Spanish languages, all of the texts being equally authentic.
4. Global Navigation Satellite Systems
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4.1. EUROPEAN UNION (E.U,)
AGREEMENT BETWEEN THE EUROPEAN COMMUNITY, THE EUROPEAN SPACE

AGENCY AND THE EUROPEAN ORGANISATION FOR THE SAFETY OF AIR
NAVIGATION ON A EUROPEAN CONTRIBUTION TO THE DEVELOPMENT OF A
GLOBAL NAVIGATION SATELLITE SYSTEM (GNSS)
Amendments:
Adopted by 398D0434 (OJ L 194 10.07.98 p.15)
THE EUROPEAN COMMUNITY, hereafter referred to as the ‘Community’,

represented by
and
THE EUROPEAN SPACE AGENCY, established by the Convention of the

European Space Agency opened for signature in Paris on 30 May 1975
(hereafter referred to as ‘ESA’), represented by Antonio Rodota, Director-
General,
and
THE EUROPEAN ORGANISATION FOR THE SAFETY OF AIR NAVI-

GATION, established by the Convention relating to Cooperation for the Safety
of Air Navigation of 13 December 1960, as amended by the Protocol of 12
February 1981 (hereafter referred to as ‘Eurocontrol’), represented by Yves
Lambert, Director-General, (hereafter collectively referred to as ‘the Parties’),
TAKING NOTE that studies on navigation by satellite are evolving from
research to the definition of an operational application system and that these
have reached a sufficient degree of maturity for a European contribution to a
global navigation satellite system thereby enhancing the involvement of
European industry in this field;
TAKING NOTE of the interest expressed by European Governments in a
European contribution to satellite navigation as expressed on the occasion of
the European Civil Aviation Conference meeting of 10 June 1994;
HAVING REGARD to the communication from the Commission of the
European Communities (hereafter referred to as the ‘Commission’) on satellite
navigation services of 14 June 1994, the European Parliament Resolution of 13
November 1994, the Resolution of the Council of the European Union of 19
73D
734 Global Navigation Satellite Systems
December 1994 on the European contribution to the development of a Global

Navigation Satellite System (GNSS), the conclusions of the Council of the
European Union of 14 March 1995, inviting the European Commission to
contribute to the implementation of the Global Navigation Satellite System
(GNSS 1) by taking all necessary measures for the leasing of the AOR-E and
IOR Inmarsat II transponders, and Decision No 1692/96/EC of the Eur-
opean Parliament and of the Council of 23 July 1996 on Community guidelines
for the development of the trans-European transport network;
HAVING REGARD to the ESA Council’s approval of this Agreement on 24
June 1997 under Article 14 (1) of the Convention of the European Space
Agency;
HAVING REGARD to Measure 83/22 taken by the Eurocontrol Permanent
Commission on 31 January 1995, pursuant to Article 11 of the Convention
relating to Cooperation for the Safety of Air Navigation, as amended on 12
February 1981;
RECOGNIZING the necessity of coordinating further their activities in order
to ensure the credibility and effectiveness of a European involvement in this
domain, in particular with regard to the development of a satellite navigation
system using Inmarsat III navigation payloads for which the Parties submitted
a proposal entitled the European Geostationary Navigation Overlay Service
(EGNOS) which was accepted by the Inmarsat Council on 21 November 1994
and also on 15 November 1995,
HAVE AGREED AS FOLLOWS:
Article 1
Purpose
The purpose of this Agreement shall be to establish cooperation between the
Parties with a view to providing a European contribution to the development of
a Global Navigation Satellite System. That concerted effort shall be aimed at
placing Europe in a position to allow provision for a satellite navigation service
which, as far as practicable, satisfies the requirements of civil users for
operational use independently of other means of radio navigation and position.
Article 2
Definitions
For the purpose of this Agreement:
‘Global Navigation Satellite System’ hereafter referred to as “GNSS’ means a

satellite-based worldwide position-, velocity-, and time-determination system
which fulfils on a permanent basis potential user requirements for civil
applications.
‘GNSS I’: means an initial implementation of GNSS, based upon the existing
United States of America and Russian military satellite navigation systems,
EU-ESA-Eurocontrol Agreement on GNSS 735
augmented by civil systems, designed to provide the user with sufficient

independent monitoring of the whole system.
‘GNSS 2’: means a worldwide civil navigation satellite system to be inter-

nationally controlled and managed, which meets the requirements of all
categories of users for position, velocity and time determination.
‘European Geostationary Navigation Overlay Service’ (EGNOS): means a
European augmentation of existing satellite navigation and positioning sys-
tems, using geostationary satellites with the aim of enhancing the performance
of these systems over Europe and providing a capability over the whole
geostationary broadcast areas. EGNOS is a European component of GNSS 1.
Article 3
Scope
The scope of cooperation between the Parties is covered by this Agreement and
further detailed in Annexes I and II. It covers the following activities:
(a) the development and validation of an operational capability of a
European contribution to GNSS 1, using existing satellite systems and
any appropriate augmentation to fulfil users requirements;
(b) coordination of each Party’s actions for the attainment of a full opera-
tional capability of GNSS 1;
(c) in parallel with GNSS 1, preparatory work for the definition and design
of GNSS 2.
Article4
The Parties’ contributions to GNSS 1
The Parties shall take the appropriate measures, in accordance with their
respective rules and procedures, and shall use their best endeavours, to
contribute in due time to GNSS 1 as specified in Annex II, as follows:
(a) ESA shall contribute through the implementation of its Advanced
Research in Telecommunication Systems (ARTES) Programme, in parti-
cular element 9, which includes the technical developments of EGNOS
and its operation for testing and technical validation purposes;
(b) Eurocontrol shall provide the civil-aviation user requirements and
validate the resulting system in the light of these requirements. Eurocon-
trol shall also support the European efforts to ensure that GNSS 1 is
operationally acceptable for civil aviation;
(c) the Community shall contribute to the consolidation of the requirements
of all users and to the validation of the resulting system in the light of
such requirements, in particular in the framework of its Trans-European
Networks and Research and Development actions, without prejudice to
legislation on the technical harmonisation procedures such as those on
aircraft and air traffic management equipment.
The Community shall, in particular, also provide for the establishment of

EGNOS by taking all appropriate measures, including the leasing of geosta-
tionary transponders.
Article 5
Working arrangements between the Parties
i To ensure progressive development of their cooperation, a Joint Tripartite
Committee composed of the Parties is hereby set up with the objective of
monitoring the implementation of this Agreement and formulating
guidelines and coordinating common approaches towards the realisation
of this Agreement. The Joint Tripartite Committee shall meet at least
once a year or more frequently, if necessary, at the request of one of the
Parties, and shall adopt its own rules of procedure.
The Joint Tripartite Committee shall be assisted by a Secretariat to
provide day-to-day administrative support and, upon request, organise
technical support. The Parties shall undertake, in accordance with their
respective rules and procedures, to contribute jointly to such adminis-
trative support.
The Joint Tripartite Committee shall carry out the tasks specified in this
Agreement, by:
(a) exchanging information on the progress made in activities related to
the scope of this Agreement and exchanging relevant documenta-
tion and results emanating from the contributions of the Parties
under this Agreement;
(b) inviting representatives from each of the Parties to participate in
meetings relating to those activities which form the basis of this
Agreement;
(c) exchanging information and coordinating, as far as possible, before
contacts with non-European third parties when such contacts are
relevant to this Agreement;
(d) formulating proposals towards arrangements necessary for the
future operational service of positioning and navigation;
(e) submitting proposals for the organisation of the Secretariat sup-
port.
Any modification or update on the technical contents of Annexes I and II
which have no impact on the scope of this Agreement, especially on its
financial and operational provisions, may be approved by the Joint
Tripartite Committee, by a unanimous decision.
Article 6
Exchange of information and disclosure
ih Each Party shall exchange with the other Parties all information at its
disposal which may be required for the implementation of this Agree-
ment, subject to its own rules on exchange of information.
Except as otherwise provided, no Party shall disclose any information
exchanged in connection with this Agreement to any person other than
those employed by them or officially entitled to handle such information

(including the Member States of each organisation) nor use it for
commercial purposes. Such disclosure shall extend only so far as may be
necessary for the purpose of this Agreement and shall be in strict
confidence.
Article 7
Rights and properties
1. Each Party shall, in accordance with its own rules and procedures,
administer or retain the property and commercial rights in the software,
equipment and documentation which it has financed and developed
within the framework of its own activities in implementing this Agree-
ment.
2. Specific arrangements between the Parties may be required for joint
developments made for the purpose of this Agreement.
Article 8
Financial arrangements
1. | Each Party shall ensure that the appropriate financial arrangements are
made in good time and in accordance with its own procedures, in order to
discharge its own responsibilities under this Agreement and Annexes.
2. Upon completion of the EGNOS testing and technical validation, new
financial arrangements shall be required to be in place.
Article 9
Contract authority and procedures
All contracts that are required for the implementation of this Agreement and
are concluded by one party shall be concluded in accordance with the normal
procedures of that Party, without prejudice to Article 7(2).
Article 10
Liability
1. The Parties hereby agree that, with respect to activities undertaken
pursuant to this Agreement, no Party shall make any claim against any
other Party with respect to injury or death of its employees, or any person
acting on its behalf, or with respect to damage of any kind to or loss of its
property, caused by any of the Parties, whether such injury, death,
damage or loss arises through negligence or otherwise, except in the case
of gross negligence or wilful misconduct.
2. In the event of a claim from a third party resulting from the Parties’
implementation of their respective contributions as specified in Annex II,
each Party shall be liable only to the extent that the claim relates to that
Party’s contribution.
3. The parties hereby agree that only the Party that has contracted with a
third party in the context of the execution of the Parties’ contributions as
specified in Annex II shall be liable for any claims from that third party
resulting from the contract in question.
Article 11
Force majeure
No Party shall be considered in breach of this Agreement if any failure to
provide its contribution hereunder arises from or is caused by force majeure.
Article 12
Public relations
1. Each Party shall undertake to coordinate with the others in advance
concerning its own or joint public-relations activities relating to subjects
covered by this Agreement.
2. In all relevant media activities, the role of each Party in this Agreement
shall be clearly identified and mentioned.
3. The detailed arrangements for implementing public-relations activities
provided for in this Article shall be adopted jointly.
Article 13
Amendments
1. This Agreement shall be amended only by unanimous written agreement
of the Parties.
2. Should any Party encounter problems in the course of its respective
contribution, including financial contribution, the Parties agree to ex-
amine, in the framework of the Joint Tripartite Committee, ways of
achieving the planned contributions and review, to the extent necessary,
the objectives and the content of this Agreement.
Article 14
Participation by third parties
This Agreement may be opened to participation by other parties that are able
to contribute to the fulfilment of the tasks under this Agreement. Amendments
in accordance with the procedure laid down in Article 13 shall then be made for
that purpose.
Article 15
Settlement of disputes
1. Any disputes which may arise between the parties relating to the
interpretation or application of this Agreement or its Annexes shall be
submitted for direct negotiations within the Joint Tripartite Committee.
2. If it is not possible to settle the dispute in accordance with paragraph 1,
any Party may notify the others of the appointment of an arbitrator; the
other Parties shall then each appoint their own arbitrator within two
months.
3. The Joint Tripartite Committee shall appoint two additional arbitrators
by unanimous decision.
4. The arbitrators’ decisions shall be taken by majority vote.
5. Each party to the dispute shall take the appropriate steps required to
implement the arbitrators’ decisions.
Article 16
Annexes
This Agreement contains Annexes I and II which shall form an integral part
hereto. Article 5(4) contains the procedure for the updating and modification
of the Annexes.
Article 17
Entry into force and termination
1. This Agreement shall enter into force on the date on which the Parties
sign it, and shall remain in force until completion of the activities
specified in Annexes I and II or until such time as this Agreement 1s
replaced by another cooperation agreement.
2. Notwithstanding paragraph 1, any Party may nevertheless terminate the
Agreement upon completion of the EGNOS technical and operational
validation, by notifying the other Parties of its intention six months in
advance.
3. In the event of termination of the Agreement by one of the parties in
accordance with paragraph 2, the Parties shall agree on all appropriate
measures to be taken.
Article 18
Authentic texts
This Agreement is signed in three original copies in the Danish, Dutch,
English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and
Swedish languages, each text being equally authentic.
In witness whereof, the undersigned, duly empowered to that effect, have

signed this Agreement.
Done at Luxembourg on the eighteenth day of June in the year one thousand
nine hundred and ninety-eight.
For the European Community
4.2. INTERNATIONAL CIVIL AVIATION
ORGANISATION (LC.A.O,)
ICAO ASSEMBLY RESOLUTION A 32-19, CHARTER ON THE RIGHTS AND

OBLIGATIONS OF STATES RELATING TO GNSS SERVICES
Whereas Article 44 of the Convention International Civil Aviation, signed on 7

December 1944 (the ‘Chicago Convention’), mandates the International Civil
Aviation Organization (ICAO) to develop the principles and techniques of
international air navigation and to foster the planning and development of
international air transport;
Whereas the concept of the ICAO communications, navigation and surveil-
lance/air traffic management (CNS/ATM) systems utilizing satellite-based
technology was endorsed by States and international organizations at the
ICAO Tenth Air Navigation Conference, and was approved by the 29th
Session of the Assembly as the ICAO CNS/ATM systems;
Whereas the Global Navigation Satellite System (GNSS), as an important
element of the CNS/ATM systems, is intended to provide worldwide coverage
and is to be used for aircraft navigation;
Whereas GNSS shall be compatible with international law, including the

Chicago Convention, its Annexes and the relevant rules applicable to outer
space activities;
Whereas it is appropriate, taking into account current State practice, to

establish and affirm the fundamental legal principles governing GNSS; and
Whereas the integrity of any legal framework for the implementation and
operation of GNSS requires observance of fundamental principles, which
should be established in a Charter;
The Assembly:
Solemnly declares that the following principles of this Charter on the Rights
and Obligations of States Relating to GNSS Services shall apply in the
implementation and operation of GNSS:
1. States recognize that in the provision and use of GNSS services, the
safety of international civil aviation shall be the paramount principle.
2. Every State and aircraft of all States shall have access, on a non-
discriminatory basis under uniform conditions, to the use of GNSS
services, including regional augmentation systems for aeronautical use
within the area of coverage of such systems.
740
2 (a) Every State preserves its authority and responsibility to control

operations of aircraft and to enforce safety and other regulations
within its sovereign airspace.
(b) The implementation and operation of GNSS shall neither infringe
nor impose restrictions upon States’ sovereignty, authority or
responsibility in the control of air navigation and the promulgation
and enforcement of safety regulations. States’ authority shall also be
preserved in the co-ordination and control of communications and
in the augmentation, as necessary, of satellite-based air navigation
services.
Every State providing GNSS services, including signals, or under whose
jurisdiction such services are provided, shall ensure the continuity,
availability, integrity, accuracy and reliability of such services, including
effective arrangements to minimize the operational impact of system
malfunctions or failure, and to achieve expeditious service recovery. Such
State shall ensure that the services are in accordance with ICAO
Standards. States shall provide in due time aeronautical information on
any modification of the GNSS services that may affect the provision of
the services.
States shall co-operate to secure the highest practical degree of unifor-
mity in the provision and operation of GNSS services.
States shall ensure that regional or subregional arrangements are
compatible with the principles and rules set out in this Charter and with
the global planning and implementation process for GNSS.
States recognize that any charges for GNSS services shall be made in
accordance with Article 15 of the Chicago Convention.
With a view to facilitating global planning and implementation of GNSS,
States shall be guided by the principle of co-operation and mutual
assistance whether on a bilateral or multilateral basis.
Every State shall conduct its GNSS activities with due regard for the
interests of other States.
Nothing in this Charter shall prevent two or more States from jointly
providing GNSS services.
Copyright Acknowledgements
All documents have been published with prior authorisation of the relevant
Organisation
European Union Documents:
All Documents are excerpts from the Official Journal of the European
Communities published by the Office Publications of the European Commu-
nities.
All documents are published in the Official J ournal. Only the published text is
authentic.
European Conference of Postal and Telecommunications Administrations:
Prior permission has been granted by the CEPT to reproduce the CEPT/ERC
and CEPT/ECTRA Documents.
Satellite Action Plan Regulatory Working Group:
Prior permission has been granted by the SAP RWG to reproduce the SAP
RWG Document.
The included document has been prepared by Emanuele D’Andria, Head,

Space Segment and Regulatory Affairs Dept., Telespazio and Claudia Qua-
glione, Analyst, Regulatory Affairs, Telespazio for the Satellite Action Plan
Regulatory Working Group and is reproduced with their Authorization.
International Telecommunication Union Documents:
All ITU material has been reproduced with the prior authorisation of the
Union as copyright holder.
The sole responsibility for selecting extracts for reproduction lies with the
beneficiary of this authorisation alone and can in no way be attributed to the
RO
World Trade Organisation Documents:
Prior permission has been granted by the WTO to reproduce WTO Docu-
ments.
International Civil Aviation Organisation:
Prior permission has been granted by the ICAO to reproduce the ICAO
Document.
742
COUNCIL DIRECTIVE OF 3 OCTOBER 1989 ON THE CO-ORDINATION OF CERTAIN
PROVISIONS LAID DOWN BY LAW, REGULATION OR ADMINISTRATIVE ACTION IN
MEMBER STATES CONCERNING THE PURSUIT OF TELEVISION BROADCASTING
ACTIVITIES (89/552/EEC)
AND
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 30 JUNE

1997 AMENDING COUNCIL DIRECTIVE 89/552/EEC ON THE CO-ORDINATION
OF CERTAIN PROVISIONS LAID DOWN BY LAW, REGULATION OR
ADMINISTRATIVE ACTION IN MEMBER STATES CONCERNING THE PURSUIT OF
TELEVISION BROADCASTING ACTIVITIES (97/36/EC)
Unofficial consolidated version prepared by the services of the Commission’
Chapter I
Definitions
Article 1
For the purpose of this Directive:
(a) ‘television broadcasting’ means the initial transmission by wire or over
the air, including that by satellite, in unencoded or encoded form, of
television programmes intended for reception by the public. It includes
the communication of programmes between undertakings with a view to
their being relayed to the public. It does not include communication
services providing items of information or other messages on individual
demand such as telecopying, electronic data banks and other similar
Services;
(b) ‘broadcaster’ means the natural or legal person who has editorial
responsibility for the composition of schedules of television programmes
within the meaning of (a) and who transmits them or has them
transmitted by third parties;
(c) ‘television advertising’ means any form of announcement broadcast
whether in return for payment or for similar consideration or broadcast
for self-promotional purposes by -a public or private undertaking in
connection with a trade, business, craft or profession in order to promote
obligations, in return for payment;
'This informed consolidated version is being made available to interested parties in order to
aid transparency, but it is not a legal text. Only the texts published in the Official Journal are
legal texts.
743
744 Annex
(d) ‘surreptitious advertising’ means the representation in words or pictures

of goods, services, the name, the trade mark or the activities of a producer
of goods or a provider of services in programmes when such representa-
tion is intended by the broadcaster to serve advertising and might mislead
the public as to its nature. Such representation is considered to be
intentional in particular if it is done in return for payment or for similar
consideration;
(e) ‘sponsorship’ means any contribution made by a public or private under-
taking not engaged in television broadcasting activities or in the produc-
tion of audio-visual works, to the financing of television programmes
with a view to promoting its name, its trade mark, its image, its activities
or its products;
(f) ‘teleshopping’ means direct offers broadcast to the public with a view to
obligations, in return for payment.
Chapter II
General provisions
Article 2
Li Member State shall ensure that all television broadcasts transmitted by
broadcasters under its jurisdiction comply with the rules of the system of
law applicable to broadcasts intended for the public in that Member
State.
For the purposes of this Directive the broadcasters under the jurisdiction
of a Member State are:
those established in that Member State in accordance with paragraph 3;
those to whom paragraph 4 applies.
For the purposes of this Directive, a broadcaster shall be deemed to be
established in a Member State in the following cases:
(a) the broadcaster has its head office in that Member State and the
editorial decisions about programme schedules are taken in that
Member State;
(b) if a broadcaster has its head office in one Member State but
editorial decisions on programme schedules are taken in another
Member State, it shall be deemed to be established in the Member
State where a significant part of the workforce involved in the
pursuit of the television broadcasting activity operates; if a sig-
nificant part of the workforce involved in the pursuit of the
television broadcasting activity operates in each of those Member
States, the broadcaster shall be deemed to be established in the
Member State where it has its head office; if a significant part of the
workforce involved in the pursuit of the television broadcasting
activity operates in neither of those Member States, the broadcaster
89/552/EEC and 97/36/EC 745
shall be deemed to be established in the Member State where it first

began broadcasting in accordance with the system of law of that
Member State, provided that it maintains a stable and effective link
with the economy of that Member State;
(c) if a broadcaster has its head office in a Member State but decisions
on programme schedules are taken in a third country, or vice-versa,
it shall be deemed to be established in the Member State concerned,
provided that a significant part of the workforce involved in the
pursuit of the television broadcasting activity operates in that
Member State.
Broadcasters to whom the provisions of paragraph 3 are not applicable
shall be deemed to be under the jurisdiction of a Member State in the
following cases:
(a) they use a frequency granted by that Member State;
(b) although they do not use a frequency granted by a Member State
they do use a satellite capacity appertaining to that Member State;
(c) although they use neither a frequency granted by a Member State
nor a Satellite capacity appertaining to a Member State they do use
a Satellite up-link situated in that Member State.
If the question as to which Member State has jurisdiction cannot be
determined in accordance with paragraphs 3 and 4, the competent
Member State shall be that in which the broadcaster is established within
the meaning of Articles 52 and following of the Treaty establishing the
European Community.
This Directive shall not apply to broadcasts intended exclusively for
reception in third countries, and which are not received directly or
indirectly by the public in one or more Member States.
Article 2a
M Member States shall ensure freedom of reception and shall not restrict
retransmissions on their territory of television broadcasts from other
Member States for reasons which fall within the fields coordinated by this
Directive.
Member States may, provisionally, derogate from paragraph | if the
following conditions are fulfilled:
festly, seriously and gravely infringes Article 22(1) or (2) and/or
Article 22a;
provision(s) referred to in (a) on at least two prior occasions;
Commission in writing of the alleged infringements and of the
measures it intends to take should any such infringement occur
again;
746 Annex
(d) consultations with the transmitting Member State and the Commis-
sion have not produced an amicable settlement within 15 days of
the notification provided for in (c), and the alleged infringement
persists.
The Commission shall, within two months following notification of
the measures taken by the Member State, take a decision on
whether the measures are compatible with Community law. If it
decides that they are not, the Member State will be required to put
an end to the measures in question as a matter of urgency.
3 Paragraph 2 shall be without prejudice to the application of any
procedure, remedy or sanction to the infringements in question in the
Member State which has jurisdiction over the broadcaster concerned.
Article 3
Le Member States shall remain free to require television broadcasters under
their jurisdiction to comply with more detailed or stricter rules in the
areas covered by this Directive.
Member States shall, by appropriate means, ensure, within the frame-
tion effectively comply with the provisions of this Directive.
The measures shall include the appropriate procedures for third parties
directly affected, including nationals of other Member States, to apply to
the competent judicial or other authorities to seek effective compliance
according to national provisions.
Article 3a
ik Each Member State may take measures in accordance with Community
law to ensure that broadcasters under its jurisdiction do not broadcast on
an exclusive basis events which are regarded by that Member State as
being of major importance for society in such a way as to deprive a
substantial proportion of the public in that Member State of the
possibility of following such events via live coverage or deferred coverage
on free television. If it does so, the Member State concerned shall draw
up a list of designated events, national or non-national, which it considers
to be of major importance for society. It shall do so in a clear and
transparent manner in due and effective time. In so doing the Member
State concerned shall also determine whether these events should be
available via whole or partial live coverage, or where necessary or
appropriate for objective reasons in the public interest, whole or partial
deferred coverage.
Member States shall immediately notify to the Commission any measures
taken or to be taken pursuant to paragraph 1. Within a period of three
months from the notification, the Commission shal! verify that such
measures are compatible with Community law and communicate them
to the other Member States. It shall seek the opinion of the Committee
89/552/EEC and 97/36/EC 747
established pursuant to Article 23a. It shall forthwith publish the

measures taken in the Official Journal of the European Communities
and at least once a year the consolidated list of the measures taken by
Member States.
Member States shall ensure, by appropriate means, within the framework
of their legislation that broadcasters under their jurisdiction do not
exercise the exclusive rights purchased by those broadcasters following
the date of publication of this Directive in such a way that a substantial
proportion of the public in another Member State is deprived of the
possibility of following events which are designated by that other Member
State in accordance with the preceding paragraphs via whole or partial
live coverage or, where necessary or appropriate for objective reasons in
the public interest, whole or partial deferred coverage on free television
as determined by that other Member State in accordance with paragraph
I.
Chapter II
Promotion of
distribution and production of
television programmes
Article 4
L. Member States shall ensure where practicable and by appropriate means,
that broadcasters reserve for European works, within the meaning of
Article 6, a majority proportion of their transmission time, excluding the
time appointed to news, sports events, games, advertising, teletext
services and teleshopping. This proportion, having regard to the broad-
caster’s informational, educational, cultural and entertainment responsi-
bilities to its viewing public, should be achieved progressively, on the
basis of suitable criteria.
Where the proportion laid down in paragraph | cannot be attained, it
must not be lower than the average for 1988 in the Member State
concerned.
However, in respect of the Hellenic Republic and the Portuguese
Republic, the year 1988 shall be replaced by the year 1990.
From 3 October 1991, the Member States shall provide the Commission
every two years with a report on the application of this Article and
Article 5.
That report shall in particular include a statistical statement on the
achievement of the proportion referred to in this Article and Article 5
for each of the television programmes falling within the jurisdiction of the
Member State concerned, the reasons, in each case, for the failure to
attain that proportion and the measures adopted or envisaged in order to
achieve it.
The Commission shall inform the other Member States and the European
Parliament of the reports, which shall be accompanied, where appro-
priate, by an opinion. The Commission shall ensure the application of
this Article and Article 5 in accordance with the provisions of the Treaty.
748 Annex
The Commission may take account in its opinion, in particular, of

progress achieved in relation to previous years, the share of first broad-
cast works in the programming, the particular circumstances of new
television broadcasters and the specific situation of countries with a low
audiovisual production capacity or restricted language area.
4. The Council shall review the implementation of this Article on the basis
of a report from the Commission accompanied by any proposals for
revision that it may deem appropriate no later than the end of the fifth
year from the adoption of the Directive.
To that end, the Commission report shall, on the basis of the information
provided by Member States under paragraph 3, take account in parti-
cular of developments in the Community market and of the international
context.
Article 5
Member States shall ensure, where practicable and by appropriate means, that
broadcasters reserve at least 10 % of their transmission time, excluding the time
appointed to news, sports events, games, advertising, teletext services and
teleshopping, or alternately, at the discretion of the Member State, at least 10
% of their programming budget, for European works created by producers who
are independent of broadcasters. This proportion, having regard to broad-
casters’ informational, educational, cultural and entertainment responsibilities
to its viewing public, should be achieved progressively, on the basis of suitable
criteria; it must be achieved by earmarking an adequate proportion for recent
works, that is to say works transmitted within five years of their production.
Article 6
1. Within the meaning of this chapter, European works’ means the follow-
ing:
(a) works originating from Member States;
(b) works originating from European third States party to the Eur-
opean Convention on Transfrontier Television of the Council of
Europe and fulfilling the conditions of paragraph 2;
(c) works originating from other European third countries and ful-
filling the conditions of paragraph 3.
Application of the provisions of (b) and (c) shall be conditional on works
originating from Member States not being the subject of discriminatory
measures in the third countries concerned
2. The works referred to in paragraph 1 (a) and (b) are works mainly made
with authors and workers residing in one or more States referred to in
paragraph | (a)-and (b) provided that they comply with one of the
following three conditions:
(a) they are made by one or more producers established in one or more
of those States; or
(b) production of the works is supervised and actually controlled by
89/552/EEC and 97/36/EC 749
one or more producers established in one or more of those States;

or
(c) the contribution of co-producers of those States to the total co-
production costs is preponderant and the co-production is not
controlled by one or more producers established outside those
States.
3. The works referred to in paragraph l(c) are works made exclusively or in
co-production with producers established in one or more Member States
by producers established in one or more European third countries with
which the Community has concluded agreements relating to the audio-
visual sector, if those works are mainly made with authors and workers
residing in one or more European States.
4. Works that are not European works within the meaning of paragraph |
but that are produced within the framework of bilateral co-production
treaties concluded between Member States and third countries shall be
deemed to be European works provided that the Community co-produ-
cers supply a majority share of the total cost of the production and that
the production is not controlled by one or more producers established
outside the territory of the Member States.
5. | Works which are not European works within the meaning of paragraphs
1 and 4, but made mainly with authors and workers residing in one or
more Member States, shall be considered to be European works to an
extent corresponding to the proportion of the contribution of Commu-
nity co-producers to the total production costs.
Article 7
Member States shall ensure that broadcasters under their jurisdiction do not
broadcast cinematographic works outside periods agreed with the rights
holders.
Article 8
Article 9
This Chapter shall not apply to television broadcasts that are intended for local
audiences and do not form part of a national network.
Chapter IV
Television advertising, sponsorship and teleshopping
Article 10
1. Television advertising and teleshopping shall be readily recognisable as
such and kept quite separate from other parts of the programme service
by optical and/or acoustic means.
2. Isolated advertising and teleshopping spots shall remain the exception.
3. Advertising and teleshopping shall not use subliminal techniques.
750 Annex
4. Surreptitious advertising and teleshopping shall be prohibited.
Article 11
1. Advertising and teleshopping spots shall be inserted between pro-
grammes. Provided the conditions set out in paragraphs 2 to 5 are
fulfilled, advertising and teleshopping spots may also be inserted during
programmes in such a way that the integrity and value of the programme,
taking into account natural breaks in and the duration and nature of the
programme, and the rights of the rights holders are not prejudiced.
2. Inprogrammes consisting of autonomous parts, or in sports programmes
and similarly structured events and performances containing intervals,
advertising and teleshopping spots shall only be inserted between the
parts or in the intervals.
3. The transmission of audiovisual works such as feature films and films
grammes and documentaries), provided their scheduled duration is more
than 45 minutes, may be interrupted once for each period of 45 minutes.
A further interruption shall be allowed if their scheduled duration is at
least 20 minutes longer than two or more complete periods of 45 minutes.
4. Where programmes, other than those covered by paragraph 2, are
interrupted by advertising or teleshopping spots, a period of at least 20
minutes should elapse between each successive advertising break within
the programme.
5. Advertising and teleshopping shall not be inserted in any broadcast of a
religious service. News and current affairs programmes, documentaries,
religious programmes and children’s programmes, when their scheduled
duration is less than 30 minutes, shall not be interrupted by advertising or
by teleshopping. If their scheduled duration is 30 minutes or longer, the
provisions of the previous paragraphs shall apply.
Article 12
Television advertising and teleshopping shall not:
(a) prejudice respect for human dignity:
(b) include any discrimination on grounds of race, sex or nationality;
(c) be offensive to religious or political beliefs;
(d) encourage behaviour prejudicial to health or to safety;
(e) encourage behaviour prejudicial to the protection of the environment.
Article 13
All forms of television advertising and teleshopping for cigarettes and other
tobacco products shall be prohibited.
Article 14
1. Television advertising for medicinal products and medical treatment
available only on prescription in the Member State within whose
jurisdiction the broadcaster falls shall be prohibited.
69/592/EEC and 97/36/HC FSi
Teleshopping for medicinal products which are subject to a marketing

authorization within the meaning of Council Directive 65/65/EEC of 26
January 1965 on the approximation of provisions laid down by law,
regulation or administrative action relating to medicinal products (8)(*),
as well as teleshopping for medical treatment, shall be prohibited.
Article 15
Television advertising and teleshopping for alcoholic beverages shall comply
with the following criteria:
(a) it may not be aimed specifically at minors or, in particular, depict minors
consuming these beverages;
(b) it shall not link the consumption of alcohol to enhanced physical
performance or to driving;
(c) it shall not create the impression that the consumption of alcohol
contributes towards social or sexual success;
(d) it shall not claim that alcohol has therapeutic qualities or that it is a
stimulant, a sedative or a means of resolving personal conflicts;
(e) it shall not encourage immoderate consumption of alcohol or present
abstinence or moderation in a negative light;
(f) it shall not place emphasis on high alcoholic content as being a positive
quality of the beverages.
Article 16
1, Television advertising shall not cause moral or physical detriment to
minors, and shall therefore comply with the following criteria for their
protection:
(a) it shall not directly exhort minors to buy a product or a service by
exploiting their inexperience or credulity;
(b) it shall not directly encourage minors to persuade their parents or
others to purchase the goods or services being advertised;
(c) it shall not exploit the special trust minors place in parents, teachers
or other persons;
(d) it shall not unreasonably show minors in dangerous situations.
Teleshopping shall comply with the requirements referred to in paragraph
1 and, in addition, shall not exhort minors to contract for the sale or
rental of goods and services.
Article 17
ik Sponsored television programmes shall meet the following requirements:
(a) the content and scheduling of sponsored programmes may in no
circumstances be influenced by the sponsor in such a way as to
affect the responsibility and editorial independence of the broad-
caster in respect of programmes;
(b) they must be clearly identified as such by the name and/or logo of
the sponsor at the beginning and/or the end of the programmes;
752 Annex
(c) they must not encourage the purchase or rental of the products or
services of the sponsor or a third party, in particular by making
special promotional references to those products or services.
Television programmes may not be sponsored by undertakings whose
principal activity is the manufacture or sale of cigarettes and other
tobacco products.
Sponsorship of television programmes by undertakings whose activities
include the manufacture or sale of medicinal products and medical
treatment may promote the name or the image of the undertaking but
may not promote specific medicinal products or medical treatments
available only on prescription in the Member State within whose
jurisdiction the broadcaster falls.
4. News and current affairs programmes may not be sponsored.
Article 18
i; The proportion of transmission time devoted to teleshopping spots,
advertising spots and other forms of advertising, with the exception of
teleshopping windows within the meaning of Article 18a, shall not exceed
20% of the daily transmission time. The transmission time for advertising
spots shall not exceed 15% of the daily transmission time.
The proportion of advertising spots and teleshopping spots within a given
clock hour shall not exceed 20%.
For the purposes of this Article, advertising does not include:
— announcements made by the broadcaster in connection with its own
programmes and ancillary products directly derived from those
programmes;
— public service announcements and charity appeals broadcast free of
charge.
Article 18a
ie Windows devoted to teleshopping broadcast by a channel not exclusively
devoted to teleshopping shall be of a minimum uninterrupted duration of
15 minutes.
2. The maximum number of windows per day shall be eight. Their overall
duration shall not exceed three hours per day. They must be clearly
identified as teleshopping windows by optical and acoustic means.
Article 19
exclusively devoted to teleshopping. Advertising on such channels shall be
allowed within the daily limits established by Article 18(1). Article 18(2) shall
not apply.
Article 19a
exclusively devoted to self-promotion. Other forms of advertising on such
89/552/ EEC and 97/36/EC 753
channels shall be allowed within the limits established by Article 18(1) and (2).
This provision in particular shall be subject to review in accordance with
Article 26.
Article 20
Community law, lay down conditions other than those laid down in Article
11(2) to (5) and Articles 18 and 18a in respect of broadcasts intended solely for
the national territory which cannot be received, directly or indirectly by the
public, in one or more other Member States.
Chapter V
Protection of minors and public order
Article 22
1. | Member States shall take appropriate measures to ensure that television
broadcasts by broadcasters under their jurisdiction do not include any
programmes which might seriously impair the physical, mental or moral
development of minors, in particular programmes that involve porno-
graphy or gratuitous violence.
2. The measures provided for in paragraph 1 shall also extend to other
programmes which are likely to impair the physical, mental or moral
development of minors, except where it is ensured, by selecting the time
of the broadcast or by any technical measure, that minors in the area of
transmission will not normally hear or see such broadcasts.
3. Furthermore, when such programmes are broadcast in unencoded form
Member States shall ensure that they are preceded by an acoustic warning
or are identified by the presence of a visual symbol throughout their
duration.
Article 22a
Member States shall ensure that broadcasts do not contain any incitement to
hatred on grounds of race, sex, religion or nationality.
Article 22b
1. |The Commission shall attach particular importance to application of this
Chapter in the report provided for in Article 26.
2. The Commission shall within one year from the date of publication of
this directive, in liaison with the competent Member State authorities,
carry out an investigation of the possible advantages and drawbacks of
further measures with a view to facilitating the control exercised by
parents or guardians over the programmes that minors may watch. This
study shall consider, inter alia, the desirability of:
- the requirement for new television sets to be equipped with a
technical device enabling parents or guardians to filter out certain
programmes;
754 Annex
- the setting up of appropriate rating systems,

= encouraging family viewing policies and other educational and
awareness measures,
- taking into account experience gained in this field in Europe and
elsewhere as well as the views of interested parties such as broad-
casters, producers, educationalists, media specialists and relevant
associations.
Chapter VI
Right of reply
Article 23
1. Without prejudice to other provisions adopted by the Member States
remedies. Member States shall ensure that the actual exercise of the right
of reply or equivalent remedies is not hindered by the imposition of
unreasonable terms or conditions. The reply shall be transmitted within a
reasonable time subsequent to the request being substantiated and at a
time and in a manner appropriate to the broadcast to which the request
refers.
A right of reply or equivalent remedies shall exist in relation to all
broadcasters under the jurisdiction of a Member State.
Member States shall adopt the measures needed to establish the right of
reply or the equivalent remedies and shall determine the procedure to be
followed for the exercise thereof. In particular, they shall ensure that a
sufficient time span is allowed and that the procedures are such that the
right or equivalent remedies can be exercised appropriately by natural or
legal persons resident or established in other Member States.
An application for exercise of the right of reply or the equivalent remedies
may be rejected if such a reply is not justified according to the conditions
laid down in paragraph 1, would involve a punishable act, would render
the broadcaster liable to civil law proceedings or would transgress
standards of public decency.
Provision shall be made for procedures whereby disputes as to the
exercise of the right of reply or the equivalent remedies can be subject to
judicial review.
Chapter Vla
Contact committee
Article 23a
iV A contact committee shall be set up under the aegis of the Commission. It
shall be composed of representatives of the competent authorities of the
89/9592/EEC and 97/364EC JS)
Member States. It shall be chaired by a representative of the Commission

and meet either on his initiative or at the request of the delegation of a
Member State.
2. The tasks of this committee shall be:
(a) to facilitate effective implementation of this Directive through
regular consultation on any practical problems arising from its
application, and particularly from the application of Article 2, as
well as on any other matters on which exchanges of views are
deemed useful;
(b) to deliver own-initiative opinions or opinions requested by the
Commission on the application by the Member States of the
provisions of this Directive;
(c) to be the forum for an exchange of views on what matters should be
dealt with in the reports which Member States must submit
pursuant to Article 4(3), on the methodology of these, on the terms
of reference for the independent study referred to in Article 25a, on
the evaluation of tenders for this and on the study itself;
(d) o discuss the outcome of regular consultations which the Commis-
sion holds with representatives of broadcasting organizations,
producers, consumers, manufacturers, service providers and trade
unions and the creative community;
(e) to facilitate the exchange of information between the Member
States and the Commission on the situation and the development
of regulatory activities regarding television broadcasting services,
taking account of the Community’s audiovisual policy, as well as
relevant developments in the technical field;
(f) to examine any development arising in the sector on which an
exchange of views appears useful.
Chapter VII
Final provisions
Article 24
In fields which this Directive does not coordinate, it shall not affect the rights
and obligations of Member States resulting from existing conventions dealing
with telecommunications or broadcasting.
Article 25
1. | Member States shall bring into force the laws, regulations and adminis-
October 1991. They shall forthwith inform the Commission thereof.
main provisions of national law which they adopt in the fields governed
by this Directive.
756 Annex
Article 25a
A further review as provided for in Article 4(4) shall take place before 30 June
2002. It shall take account of an independent study on the impact of the
measures in question at both Community and national level.
Article 26
Not later than 31 December 2000, and every two years thereafter, the
Commission shall submit to the European Parliament, the Council and the
Economic and Social Committee a report on the application of this Directive
as amended and, if necessary, make further proposals to adapt it to develop-
ments in the field of television broadcasting, in particular in the light of recent
technological developments.
Article 27
December 1998 . They shall immediately inform the Commission thereof.
reference to this Directive or be accompanied by such reference on the
occasion of their official publication. The methods of making such
this Directive.
Article 28
This Directive shall enter into force on the date of its publication in the Official
Article 29
Done at Brussels
For the Parliament For the Council
The President The President
(1) OJ No C185, 19. 7.1995, p. 4 and OJ No C 221, 30.7.1996, p. 10.

@C)e OF No GSO 1S e1995,\ p35:
(3) Opinion of the European Parliament of 14 February 1996 (OJ No C 65, 4.3.1996, p. 113).
Council Common Position of8 July 1996 (OJ NO C 264, 11.9.1996, p. 52) and Decision ofthe
European Parliament of 12 November 1996 (OJ No C 362, 2.12.1996, p. 56).
(4) OJ No L 298, 17.10.1989, p. 23. Directive as amended by the 1994 Act of Accession.
(5) Case C-221/89, Queen v. Secretary of State for Transport, ex parte Factortame Ltd. and
Others, (1991) ECR I-3905, paragraph 20.
(6) See, in particular, the judgements in Case 33/74, Van Binsbergen v. Bestuur van de Bed-
rijfsvereniging, (1974) ECR 1299 and in Case C-23/93, TV 10 SA v. Commissariaat voor de
Media, (1994) ECR I-4795.
(7) OJ No L 113, 30.4.1992, p. 13.
(8) OJ No 22, 9.2.1965, p. 369. Directive as last amended by Directive 93/39/EEC (OJ No L 214,
24.8.1993, p. 22).
COUNCIL DIRECTIVE OF 28 JUNE 1990 ON THE ESTABLISHMENT OF THE
INTERNAL MARKET FOR TELECOMMUNICATIONS SERVICES THROUGH THE
IMPLEMENTATION OF OPEN NETWORK PROVISION (ONP) (90/387/EEC)
AND
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 6

OCTOBER 1997 FOR THE PURPOSE OF ADAPTATION TO A COMPETITIVE
ENVIRONMENT IN TELECOMMUNICATIONS (97/51/EC)
Unofficial consolidated version prepared by the services of the Commission’

Article 1
iy This Directive concerns the harmonization of conditions for open and
efficient access to and use of public telecommunications networks and,
where applicable, publicly available telecommunications services.
2. The purpose of the conditions prescribed in paragraph | shall be to
facilitate the provision of public telecommunications networks and/or
publicly available telecommunications services, within and between
Member States, and in particular the provision of services by companies,
firms or natural persons established in a Member State other than that of
the company, firm or natural person for whom the services are intended.
3. Open network provision conditions shall aim at:
_ ensuring the availability of a minimum set of services,
- securing access and interconnection to public telecommunications
networks and publicly available telecommunications services,
- encouraging the provision of harmonized telecommunications
services to the benefit of users, in particular by identifying and
promoting by voluntary means harmonized technical interfaces for
open and efficient access and interconnection, and associated
standards and/or specifications and
~ guaranteeing the provision of universal service in telecommunica-
tions, taking account of any future evolution,
Article 2
I) ‘users’ shall mean individuals, including consumers, or organizations

'This informed consolidated version is being made available to interested parties in order to
aid transparency, but it is not a legal text. Only the texts published in the Official Journal are
legal texts.
(eM
758 Annex
2) ‘telecommunications network’ shall mean transmission systems and,

where applicable, switching equipment and other resources which permit
the conveyance of signals between defined termination points by wire, by
‘public telecommunications network’ shall mean a telecommunications
network used, in all or in part, for the provision of publicly available
3) ‘telecommunications services’ shall mean services the provision of which
consists wholly or partly in the transmission and routing of signals on
telecommunications networks, with the exception of radio and television
broadcasting;
4) ‘universal service’ shall mean a defined minimum set of services of
specified quality which is available to all users regardless of their
geographical location and, in the light of specific national conditions, at
an affordable price;
5) ‘network termination point’ shall mean the physical point at which a user
is provided with access to a public telecommunications network. The
locations of network termination points shall be defined by the national
regulatory authority and shall represent a boundary, for regulatory
purposes, of the public telecommunications network;
6) ‘essential requirements’ shall mean 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 of 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 protection of personal data, the confidentiality of informa-
tion transmitted or stored and the protection of privacy;
7) ‘interconnection’ shall mean the physical and logical linking of telecom-
munications networks used by the same or a different organization in
order to allow the users of one organization to communicate with users of
the same or another organization, or to access services provided by
another organization. Services may be provided by the parties involved
or other parties who have access to the network;
8) ‘open network provision conditions’ shall mean the conditions, harmo-
nized in accordance with this Directive, which govern open and efficient
access to public telecommunications networks and, where applicable,
publicly available telecommunications services and the efficient use of
those networks and services.
Without prejudice to their application on a case-by-case basis, open
90/387/EEC and 97/51/EC 759
regard to:
- technical interfaces, including the definition and implementation of
~ usage conditions,
~ tariff principles and
= access to frequencies and numbers/addresses/names, where re-
quired in accordance with the reference framework of the Annex;
9) ‘technical specifications’, ‘standards’ and ‘terminal equipment’ shall have
the same meanings as in Article 1 of Directive 91/263/EEC.
Article 3
lie Open network provision conditions must comply with a number of basic
principles set out hereafter, namely that:
— they must be based on objective criteria,
— they must be transparent and published in an appropriate manner,
— they must guarantee equality of access and must be non-discrimi-
natory, in accordance with Community law.
Open network provision conditions shall not restrict access to public
telecommunications networks or publicly available telecommunications
services, except on grounds of essential requirements within the frame-
work of Community law. In addition, the conditions generally applicable
to the connection of terminal equipment to the network shall apply.
Open network provision conditions may not allow for any additional
restrictions on the use of the public telecommunications networks and/or
publicly available telecommunications services, except those which are
compatible with Community law.
Without prejudice to the specific Directives adopted in the field of open
network provision and insofar as the application of the essential require-
ments referred to in paragraph 2 may cause Member States to limit access
to public telecommunications networks or publicly available telecommu-
nications services, the rules for uniform application of the essential
requirements, in particular concerning the interoperability of services
and the protection of data, shall be determined, where appropriate, by the
Commission, in accordance with the procedure laid down in Article 10.
Article 4 deleted
Article 5
lle References to standards and/or specifications drawn up as a basis for
harmonized technical interfaces and/or service features for open network
provision shall be published in the Official Journal of the European
Communities as suitable for the requirement of open and efficient access,
interconnection and interoperability in order to encourage the provision
of harmonized telecommunications services to the benefit of users
760 Annex
Where necessary, the Commission may, in consultation with the commit-

tee referred to in Article 9, request standards to be drawn up by European
standardization bodies.
2. |Member States shall encourage the use of the standards and/or specifica-
tions to which reference is made in the Official Journal of the European
Communities, in accordance with paragraph 1, for the provision of
technical interfaces and/or network functions.
As long as such standards and/or specifications are not adopted, Member
States shall encourage:
- standards and/or specifications adopted by European standardiza-
tion bodies such as ETSI or the Joint European Standards Institu-
tion CEN/CENELEC,
Electrotechnical Committee (IEC),
- national standards and/or specifications.
3. Ifthe implementation of the standards and/or specifications referred to in
paragraph | appears to be inadequate to ensure the interoperability of
transfrontier services in one or more Member States, the implementation
of such standards and/or specifications may be made compulsory under
the procedure laid down in Article 10, to the extent strictly necessary to
ensure such interoperability and to improve freedom of choice for users,
subject to Articles 85 and 86 of the Treaty.
Before the implementation of the standards and/or specifications is made
compulsory in accordance with the first subparagraph, the Commission
shall, by publishing a notice to that effect in the Official Journal of the
European Communities, invite public comment by all parties concerned.
4. Where a Member State or the Commission considers that the harmo-
nized standards and/or specifications referred to in paragraph | do not
correspond to the objective of open and efficient access, interconnection
and interoperability, in particular the basic principles and the essential
requirements referred to in Article 3, it shall be decided whether or not it
is necessary to withdraw references to those standards and/or specifica-
tions from the Official Journal of the European Communities in accor-
dance with the procedure laid down in Article 10.
5. |The Commission shall inform the Member States of any such decision
and publish information on the withdrawal of those standards and/or
specifications in the Official Journal of the European Communities.
90/387/EEC and 97/51/EC 761
Article Sa
1. Where the tasks assigned to the national regulatory authority in Com-
munity legislation are undertaken by more than one body, Member States
shall ensure that the tasks to be undertaken by each body are made
public.
2. In order to guarantee the independence of national regulatory autho-
rities:
- national regulatory authorities shall be legally distinct from and
functionally independent of all organizations providing telecommu-
nications networks, equipment or services,
~ Member States that retain ownership or a significant degree of
control of organizations providing telecommunications networks
and/or services shall ensure effective structural separation of the
regulatory function from activities associated with ownership or
control.
3. | Member States shall ensure that suitable mechanisms exist at national
level under which a party affected by a decision of the national regulatory
authority has a right of appeal to a body independent of the parties
involved.
4. Member States may take steps to ensure that national regulatory
authorities are able to obtain from organizations providing telecommu-
nications networks and/or services all the information necessary for
them to apply Community legislation.
Articles 6 and 7 deleted
Article 8
supplied by the Member States to the Commission and to the committee
referred to in Articles 9 and 10. Where necessary, the report shall examine
what provisions of this Directive should be adapted in the light of the
developments in the market. Further measures may be proposed in the report
in pursuit of the aims of this Directive. The Commission shall also investigate
in the report the added value of the setting up of a European Regulatory
Authority to carry out those tasks which would prove to be better undertaken
at Community level.
Article 9
1. |The Commission shall be assisted by a committee of a advisory nature
representative of the Commission.
The committee shall, in particular, consult the representatives of the
organizations providing public telecommunications networks and/or
762 Annex
publicly available telecommunications services, the users, the consumers,

the manufacturers and the service providers. It shall lay down its rules of
procedure.
minutes.
Article 10
ite Notwithstanding the provisions of Article 9, the following procedure
shall apply in respect of the matters covered by Article 3(5) and Article
5(3).
Article 11
ie Member States shall bring into force the laws, regulations and adminis-
trative provisions necessary in order to comply with this Directive before
1 January 1991 at the latest. They shall forthwith inform the Commission
thereof.
Directive.
90/387 /EEC and 97/51/EC 7163
Transposition of amending Directive

1. The Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Directive no
later than 31 December 1997. They shall immediately inform the
Commission thereof.
When the Member States adopt these provisions, these shall contain a
2. | The Member States shall communicate to the Commission the texts of
the main provisions of national law which they adopt in the field covered
by this Directive.
Entry into force of amending Directive
This Directive shall enter into force on the twentieth day after that of its
Article 12
ANNEX
(replacing the original Annex IT)
Reference framework for the application of ONP conditions

The application of open network provision conditions as defined in Article 2(8)
should be in accordance with the following reference framework, taking into
account the relevant rules of the Treaty:
1. Harmonized technical interfaces and/or network functions

When open network provision conditions are drawn up the following
scheme should be taken into account for the definition of specifications
for technical interfaces and/or network functions:
— for existing services and networks, existing interface specifications
should be adopted;
— for entirely new services or the improvement of existing services,
existing interface specifications should also be adopted, as far as
feasible. When existing interfaces are not suitable, enhancements
and/or new interface specifications will have to be specified;
~ for networks that are still to be introduced but for which the
standardization programme has already commenced, open network
provision requirements falling within the terms of Article 3 should
be taken into account when new interface and network functions
specifications are developed.
Open network provision proposals must, wherever possible, be in line
with the ongoing work in the European standardization bodies, in
764 Annex
particular the ETSI, and must also take into account work in interna-
tional standardization organizations, such as the ITU-T.
2. Harmonized supply and usage conditions
Supply and usage conditions identify conditions of access and of
provision of services, as far as required.
(a) supply conditions concern conditions under which a service is
offered to users. They may include:
— typical delivery period,
- typical repair time,
= quality of service, in particular availability and quality of
transmission,
- maintenance and network management;
(b) usage conditions concern conditions which apply to users, such as:
= conditions for network access,
— conditions for shared use,
- conditions regarding protection of personal data and con-
fidentiality of communications, where required.
3. Harmonized tariff principles
Tariff principles must be consistent with the principles stated in Article
3(1).
Those principles imply, in particular, that:
- tariffs must be based on objective criteria and, until such time as
competition becomes effective in keeping down prices for users,
must in principle be cost oriented, on the understanding that the
fixing of the actual tariff level will continue to be the province of
national legislation and is not the subject of open network provision
conditions. Where an organization no longer has significant market
power in the relevant market, the requirement for cost orientation
may be set aside by the competent national regulatory authority.
One of the aims should be the definition of efficient tariff principles
throughout the Community while ensuring a general service for all,
— tariffs must be transparent and must be properly published,
= in order to leave users a choice between the individual service
elements and where technology so permits, tariffs must be suffi-
ciently unbundled in accordance with the competition rules of the
Treaty. In particular, additional features introduced to provide
certain specific extra services must, as a general rule, be charged
independently of the inclusive features and transportation as such,
- tariffs must be non-discriminatory and guarantee equality of treat-
ment, except for restrictions which are compatible with Community
law.
Any charge for access to network resources or services must comply with
the principles set out above and with the competition rules of the Treaty
90/387/EEC and 97/517EC 765
and must also take into account the principle of fair sharing in the global
cost of the resources used, the need for a reasonable level of return on
investment and, where appropriate, the financing of universal service in
accordance with the Interconnection Directive.
There may be different tariffs, in particular to take account of excess
traffic during peak periods and lack of traffic during off-peak periods,
provided that the tariff differentials are commercially justifiable and do
not conflict with the above principles.
Harmonized approach to numbering/addressing/naming
Numbering/addressing and in some instances naming provide for the
selection of the destination or destinations, or for the selection of a
service, of a service provider or a network operator.
Adherence to a harmonized approach for numbering/addressing and,
where applicable, naming is therefore essential to guarantee Europe-wide
end-to-end interconnection of users and the interoperability of services.
Furthermore, the allocation of numbers/addresses/names should be fair,
proportionate and consistent with the requirements for equal access.
To achieve that, it is necessary:
= to ensure the provision according to harmonized principles of
adequate ranges of numbers and addresses, prefixes and short codes
and, where applicable, of adequate naming, for all publicly available
telecommunications services,
= to ensure the coordination of national positions in international
organizations and fora where decisions are taken on numbering/
addressing/naming, taking into account possible future develop-
ments in numbering/addressing/naming at European level,
- to ensure that the relevant national telecommunications number-
ing/addressing/naming plans are under the supervision of the
national regulatory authority, in order to guarantee independence
from organizations providing public telecommunications networks
or publicly available telecommunications services,
~ to ensure the effective implementation of number portability in
order to remove any obstacles for users in choosing their suppliers,
- to ensure that the procedures for allocating individual numbers/
addresses/names, prefixes and short codes and/or addressing/
numbering ranges are transparent, equitable and timely and that
the allocation is carried out in an objective, transparent and non-
discriminatory manner, taking into account the principle of pro-
portionality,
~ to give national regulatory authorities the possibility of laying down
conditions for the use in numbering/addressing plans of certain
prefixes or certain short codes, in particular where these are used
for services of general public interest (e.g. directory services or
emergency services), or to ensure equal access.
766 Annex
53 Access to frequencies
Member States must ensure that frequencies are made available for
telecommunications services in accordance with Community law. Access
to frequencies granted by means of licences or other authorizations must
comply with the Council Resolution of 19 November 1992 on the
implementation in the Community of the European Radiocommunica-
tions Committee Decisions.
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Satellite Regulation
in Europe
Edited by
Stéphan Le Goueff -
Commercial satellite activities have undergone an enormous growth in the last decades. As
these activities grew throughout the years, so has the complexity of the legal framework
within which they have to be carried out. Because of the international character of satellite
activities, this legal framework has often been established on an international or regional
level, through institutions such as the European Union, the International
Telecommunications Union, the World Trade Organisation and the European Conference of
Postal and Telecommunications Administrations.
It is not an easy task to obtain a complete picture of this legal framework. For this reason, it
was considered opportune to assemble all relevant legal texts and materials established by
these institutions in one book.
As telecommunications is currently the most important commercial application of satellites,
it should come as no surprise to anyone that the main part of the book is dedicated to this
application, simply because of the fact that the legal framework is furthest developed.
However, relevant texts and materials for the three other commercial satellite activities,
broadcasting, remote sensing and navigation, have also been included. This book is a very
valuable tool for all those involved in the European satellite business or for those who want _
to get involved in it, whether they are lawyers or non-lawyers, as everyone is affected by the
laws and regulations governing this field and everyone should be aware of the limitations
these laws and regulations might impose.
KLUWER LAW INTERNATIONAL

Satellite Regulation: in Europe

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Satellite Regulation

~ Kluwer Law International AR

KLUWER LAW INTERNATIONAL

KJE6964 .S28 2000

Published by Kluwer Law International,

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Printed and bound in Great Britain by Antony Rowe Limited.

1.1.1. General Telecommunications Documents

Council Directive of 5 June 1992 on the application of open network

Council Resolution of 19 November 1992 on the implementation in the

Council Resolution of 29 June 1995 on the further development of

Directive of the European Parliament and of the Council of 9 March

Commission Decision of 17 June 1998 on a common technical

1.2. European Conference of Postal and Telecommunications Administration

CEPT/ERC/DEC(97)05; ERC Decision of 30 June 1997 on free

CEPT/ERC/DEC(98)02; ERC Decision of 20 March 1998 on free

CEPT/ERC/DEC(98)12; ERC Decision of 23 November 1998 on

CEPT/ERC/DEC(98)13; ERC Decision of 23 November 1998 on

CEPT/ERC/DEC(98)14; ERC Decision of 23 November 1998 on

CEPT/ERC/DEC(98)17; ERC Decision of 23 November 1998 on

CEPT/ERC/DEC(98)19; ERC Decision of 23 November 1998 on

1.2.2. European Committee for Telecommunications Regulatory Affairs

1.3. Satellite Action Plan Regulatory Working Group (SAP-RWG)

Satellite Scorecard; Status of implementation of CEPT/ERC and

1.4. International Telecommunication Union (1.T.U.)

Implementation of the GMPCS-MoU Arrangements, 12-13 March

1.5. World Trade Organisation (W.T.O.)

2.2. United Nations (U.N.)

UN Resolution 37192, Principles Governing the Use by States of

UNESCO Declaration of Guiding Principles on the Use of Satellite

Brussels Convention Relating to the Distribution of Programme-

UN Resolution 41/65 Principles Relating to Remote Sensing of the

4. GLOBAL NAVIGATION SATELLITE SYSTEMS

Agreement between the European Community, the European Space

4.2. International Civil Aviation Organisation (I.C.A.O.)

ICAO Assembly Resolution A 32-19, Charter on the Rights and

Copyright Acknowledgement 742

Commercial satellite activities have undergone enormous growth in the last

Although telecommunications and broadcasting represent by far the largest

Weather forecasting is carried out on a commercial basis, as well as other

I would like to thank my associates, Mr Rafaél Roelandt who has assisted me

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1.1.1. General Telecommunications Documents

COUNCIL DIRECTIVE OF 24 JULY 1986 ON THE INITIAL STAGE OF THE MUTUAL

Official Journal No. L217/21, 05.08.86

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the proposal from the Commission,

Whereas the mutual recognition of type approval for telecommunications

Whereas the market in telecommunications terminal equipment and use of the

Whereas it is absolutely essential to establish or consolidate a specifically

Whereas the mutual recognition of type approval for telecommunications

Whereas it is necessary to set up a Committee, with the task of assisting the

HAS ADOPTED THIS DIRECTIVE:

1. ‘telecommunications administrations’ means the administrations or pri-

‘certificate of conformity’ means the document certifying that a product