Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Text with EEA relevance)

• Published date: 17 September 2002
• Official Gazette Publication: Diario Oficial de las Comunidades Europeas, L 249, 17 de septiembre de 2002,Gazzetta ufficiale delle Comunità europee, L 249, 17 settembre 2002,Journal officiel des Communautés européennes, L 249, 17 septembre 2002

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Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Text with EEA relevance)

Official Journal L 249 , 17/09/2002 P. 0021 - 0026

Commission Directive 2002/77/EC

of 16 September 2002

on competition in the markets for electronic communications networks and services

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community, and in particular Article 86(3) thereof,

Whereas:

(1) Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services(1), as last amended by Directive 1999/64/EC(2), has been substantially amended several times. Since further amendments are to be made, it should be recast in the interest of clarity.

(2) Article 86 of the Treaty entrusts the Commission with the task of ensuring that, in the case of public undertakings and undertakings enjoying special or exclusive rights, Member States comply with their obligations under Community law. Pursuant to Article 86(3), the Commission can specify and clarify the obligations arising from that Article and, in that framework, set out the conditions which are necessary to allow the Commission to perform effectively the duty of surveillance imposed upon it by that paragraph.

(3) Directive 90/388/EEC required Member States to abolish special and exclusive rights for the provision of telecommunications services, initially for other services than voice telephony, satellite services and mobile radiocommunications, and then it gradually established full competition in the telecommunications market.

(4) A number of other Directives in this field have also been adopted under Article 95 of the Treaty by the European Parliament and the Council aiming, principally, at the establishment of an internal market for telecommunications services through the implementation of open network provision and the provision of a universal service in an environment of open and competitive markets. Those Directives should be repealed with effect from 25 July 2003 when the new regulatory framework for electronic communications networks and services is applied.

(5) The new electronic communications regulatory framework consists of one general Directive, Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive)(3) and four specific Directives: Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive)(4), Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive)(5), Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive)(6), and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications (Directive on privacy and electronic communications) sector(7).

(6) In the light of the developments which have marked the liberalisation process and the gradual opening of the telecommunications markets in Europe since 1990, certain definitions used in Directive 90/388/EEC and its amending acts should be adjusted in order to reflect the latest technological developments in the telecommunications field, or replaced in order to take account of the convergence phenomenon which has shaped the information technology, media and telecommunications industries over recent years. The wording of certain provisions should, where possible, be clarified in order to facilitate their application, taking into account, where appropriate, the relevant Directives adopted under Article 95 of the Treaty, and the experience acquired through the implementation of Directive 90/388/EEC as amended.

(7) This Directive makes reference to "electronic communications services" and "electronic communications networks" rather than the previously used terms "telecommunications services" and "telecommunications networks". These new definitions are indispensable in order to take account of the convergence phenomenon by bringing together under one single definition all electronic communications services and/or networks which are concerned with the conveyance of signals by wire, radio, optical or other electromagnetic means (i.e. fixed, wireless, cable television, satellite networks). Thus, the transmission and broadcasting of radio and television programmes should be recognised as an electronic communication service and networks used for such transmission and broadcasting should likewise be recognised as electronic communications networks. Furthermore, it should be made clear that the new definition of electronic communications networks also covers fibre networks which enable third parties, using their own switching or routing equipment, to convey signals.

(8) In this context, it should be made clear that Member States must remove (if they have not already done so) exclusive and special rights...