Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to mobile and personal communications

• Published date: 26 January 1996
• Subject Matter: Telecommunications,Competition,Internal market - Principles
• Official Gazette Publication: Official Journal of the European Communities, L 20, 26 January 1996

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Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to mobile and personal communications

Official Journal L 020 , 26/01/1996 P. 0059 - 0066

COMMISSION DIRECTIVE 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to mobile and personal communications

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Community, and in 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 underlying 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 communications 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 telecommunications organization. Many Member States, for example, have still not granted licences for DCS 1800 mobile telephony.

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 telecommunications 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, provided 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 1 700 to 1 900 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 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 (5) 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...