42 Amendments of Michał BONI related to 2016/0288(COD)
Amendment 151 #
Proposal for a directive
Recital 7
Recital 7
(7) The convergence of the telecommunications, media and information technology sectors means that all electronic communications networks and services should be covered to the extent possible by a single European Electronic Communications Code established by a single Directive, with the exception of matters better dealt with through directly applicable rules established through regulations It is necessary to separate the regulation of electronic communications networks and services from the regulation of content. This Code does not therefore cover the content of services delivered over electronic communications networks using electronic communications services, such as broadcasting content, financial services and certain information society services, and is therefore without prejudice to measures taken at Union or national level in respect of such services, in compliance with Union law, in order to promote cultural and linguistic diversity and to ensure the defence of media pluralism. The content of television programmes is covered by Directive 2010/13/EU of the European Parliament and of the Council21 . The regulation of audiovisual policy and content aims at achieving general interest objectives, such as freedom of expression, media pluralism, impartiality, cultural and linguistic diversity, social inclusion, consumer protection and the protection of minors. However, it is intended that unless explicitly excluded from the scope of application of the Code, electronic communications networks and services should be covered by this Code. The separation between the regulation of electronic communications and the regulation of content does not prejudice the taking into account of the links existing between them, in particular in order to guarantee media pluralism, cultural diversity and consumer protection. _________________ 21 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).
Amendment 165 #
Proposal for a directive
Recital 13
Recital 13
(13) The requirements concerning the capabilities of electronic communications networks are constantly increasing. While in the past the focus was mainly on growing bandwidth available overall and to each individual user, other parameters like latency, availability and reliability are becoming increasingly important. The current response towards this demand is bringing optical fibre closer and closer to the user and future 'very high capacity networks' will require performance parameters which are equivalent to what a network based on optical fibre elements at least up to the distribution point at the serving location can deliver. This corresponds in the fixed-line connection case to network performance equivalent to what is achievable by an optical fibre installation up to a multi-dwelling buildingthe premises, considered as the serving location, and in the mobile connection case to network performance similar to what is achievable based on an optical fibre installation up to the base station, considered as the serving location. Variations in end-users' experience which are due to the different characteristics of the medium by which the network ultimately connects with the network termination point should not be taken into account for the purposes of establishing whether or not a wireless network could be considered as providing similar network performance. In accordance with the principle of technological neutrality, other technologies and transmission media should not be excluded, where they compare with this baseline scenario in terms of their capabilities. The roll-out of suchfixed 'very high capacity networks' will further increase the capabilities of networks and pave the way forin a fibre to the home configuration and their backhaul capabilities will be a prerequisite for the success of the roll-out of future mobile network generations (5G) based on enhanced air interfaces and a more densified network architecture.
Amendment 193 #
Proposal for a directive
Recital 53
Recital 53
(53) Member States may need to amend rights, conditions, procedures, charges and fees relating to general authorisations and rights of use where this is objectively justified. Such changes should be duly notified to all interested parties in good time, giving them adequate opportunity to express their views on any such amendments. Taking into account the need to ensure legal certainty and to promote regulatory predictability, any restriction or withdrawal of existing rights of use for radio spectrum or to install facilities should be subject to predictable and transparent procedures; hence stricter requirements or a notification mechanism could be imposed where rights of use have been assigned pursuant to competitive or comparative procedures. In the case of right of use for spectrum, the right holder shall have the right to object to any proposed amendment based on its existing and future spectrum usage plan and the need to safeguard investment. Unnecessary procedures should be avoided in case of minor amendments to existing rights to install facilities or to use spectrum when such amendments do not impact on third parties' interests. The change in the use of spectrum as a result of the application of technology and service neutrality principles should not be considered a sufficient justification for a withdrawal of rights since it does not constitute the granting of a new right.
Amendment 210 #
Proposal for a directive
Recital 84
Recital 84
(84) By virtue of their overall economic expertise and market knowledge, and of the objective and technical character of their assessments, and in order to ensure coherence with their other tasks of market regulation, national regulatory authorities should determine the elements of selection procedures and the conditions attached to the rights of use for spectrum which have the greatest impact on market conditions and the competitive situation, including conditions for entry and expansion. That includes for example the parameters for economic valuation of spectrum in compliance with this Directive, the specification of the regulatory and market- shaping measures such as the use of spectrum caps or reservation of spectrum or the imposition of wholesale access obligations, or the means to define the coverage conditions attached to rights of use. A more convergent use and definition of such elements would be favoured by a coordination mechanism whereby BEREC, the Commission and the national regulatory authorities of the other Member States would review draft measures in advance of the granting of rights of use by a given Member Statein parallel to the national public consultation. It is also important that, prior to defining their country's spectrum policy in relation to spectrum licensing, national regulatory authority be in a position to refer to common set of principles regarding spectrum assignment in the EU. BEREC will be responsible for elaborating and updating such guidelines as soon as practicable after the adoption of the Code. Member States should take the utmost account of BEREC's guidelines. The measure determined by the national regulatory authority can only be a subset of a wider national measure, which may more broadly consist of the granting, trade and lease, duration, renewal or the amendment of rights of use for radio spectrum as well as of the selection procedure or the conditions attached to the rights of use. Therefore, when notifying a draft measure, national regulatory authorities may provide information on other draft national measures related to the relevant selection procedure for limiting rights of use for radio spectrum which are not covered by the peer review mechanism.
Amendment 212 #
Proposal for a directive
Recital 86
Recital 86
(86) Member States should be encouraged to consider joint authorisations as an option when issuing rights of use where the expected usage covers cross- border situations. Member States should also have the option of empowering BEREC, RSPG or the Commission with the responsibility of conducting the selection process.
Amendment 215 #
Proposal for a directive
Recital 93
Recital 93
(93) Where the provision of electronic communications relies on public resources whose use is subject to specific authorisation, Member States may grant the authority competent for issuance thereof the right to impose fees to ensure optimal use of those resources, in accordance with the procedures envisaged in this Directive. Such use can be ensured by setting the fees at a level reflecting the value of the spectrum at its next best use. In line with the case-law of the Court of Justice, Member States cannot levy any charges or fees in relation to the provision of networks and electronic communications services other than those provided for by this Directive. In that regard, Member States should have a coherent approach in establishing those charges or fees in order not to provide an undue financial burden linked to the general authorisation procedure or rights of use for undertakings providing electronic communications networks and services.
Amendment 216 #
Proposal for a directive
Recital 95
Recital 95
(95) In line with their role of ensuring optimal use of radio spectrum, fees linked to rights of use for radio spectrum can influence decisions about whether to seek such rights and put into use radio spectrum resources. When setting reserve prices as a means to determine the minimum valuation ensuring optimal use, Member States should therefore ensure that such prices, irrespective of the type of selection procedure used, also reflect and be proportionate to the additional costs associated with the fulfilment of authorisation conditions imposed to further policy objectives that would not reasonably be expected to be met pursuant to normal commercial standards, such as territorial coverage conditions. In doing so, regard should also be had to the competitive situation of the market concerned.
Amendment 247 #
Proposal for a directive
Recital 142
Recital 142
(142) Sharing of passive or active infrastructure used in the provision of wireless electronic communications services, or the joint roll-out of such infrastructures, in compliance with competition law principles can be particularly useful to maximise very high capacity connectivity throughout the Union, especially in less dense areas where replication is impracticable and end-users risk being deprived of such connectivity. National regulatory authorities should, exceptionally, be enabled to impose such sharing or joint roll-out, or localised roaming access, in compliance with Union law, if they demonstrate the benefits of such sharing or access in terms of overcoming very significant barriers to replication and of addressing otherwise severe restrictions on end-user choice or quality of service, or both, or on territorial coverage, and taking into account several elements, including in particular the need to maintain infrastructure roll-out incentives. Access to wiring and cables inside buildings remains an important obstacle to competition. It is important to ensure that any interested third party receives access to information retained by owners or users of such in-building infrastructure and that all reasonable access requests be met.
Amendment 249 #
Proposal for a directive
Recital 143
Recital 143
(143) While it is appropriate in some circumstances for a national regulatory authority to impose obligations on operators that do not have significant market power in order to achieve goals such as end-to-end connectivity or interoperability of services, it is however necessary to ensure that such obligations are imposed in conformity with the regulatory framework and, in particular, its notification procedures and in instances where SMP obligations are not or unlikely to be effective.
Amendment 259 #
Proposal for a directive
Recital 173
Recital 173
(173) National regulatory authorities should, when imposing obligations for access to new and enhanced infrastructures, ensure that access conditions reflect the circumstances underlying the investment decision, taking into account, inter alia, the roll-out costs, the expected rate of take up of the new products and services and the expected retail price levels. Moreover, in order to provide planning certainty to investors, national regulatory authorities should be able to set, if applicable, terms and conditions for access which are consistent over appropriate review periods. In the event that price controls are deemed appropriate, such terms and conditions can include pricing arrangements which depend on volumes or length of contract in accordance with Union law and provided they have no discriminatory effect. Any access conditions imposed should respect the need to preserve effective competition in services to consumers and businesses. Each obligation shall be assessed separately and there is no hierarchy between the various obligations which national regulatory authorities can impose with one exception. In compliance with the principle of proportionality, the obligation to provide access to and use of specific network facilities shall only be imposed if the obligation to provide access to civil engineering is not or unlikely to be effective.
Amendment 300 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) 'very high capacity network' means an electronic communications network which either consists wholly of optical fibre elements at least up to the distribution point at the serving location or any other type of network which is capable of delivering under usual peak- time conditions similar network performance in terms of available down- and uplink bandwidth, resilience, error- related parameters, and latency and its variation. Network performance can be considered similar regardless of whVery high capacity networks are in any case fibre to the home networks or any other network which provides the technical performance requirements needed for the backhaul of 5G networks. Network performance will be assessed solely on the basis of technical paramethers and not take into account the end-user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point.
Amendment 304 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) 'very high capacity network' means an electronic communications network which either consists wholly of optical fibre elements at least up to the distribution point at the serving location or any network which is capable of delivering under usual peak- time conditions similarat least equally consistent and reliable network performance in terms of available down- and uplink bandwidth, resilience, error- related parameters, and latency and its variation. Network performance can be considered similarshall be assessed on the basis of technical parameters, regardless of whether the end- user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point.
Amendment 377 #
Proposal for a directive
Article 3 – paragraph 3 – point b a (new)
Article 3 – paragraph 3 – point b a (new)
(b a) safeguarding competition to the benefit of consumers and promoting, where appropriate, infrastructure-based competition;
Amendment 420 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Member States shall ensure that the rights, conditions and procedures concerning general authorisations and rights of use for radio spectrum or for numbers or rights to install facilities may only be amended in objectively justified cases and in a proportionate manner, taking into consideration, where appropriate, the specific conditions applicable to transferable rights of use for radio spectrum and for numbers. In the case of right of use for spectrum, the right holder shall have the right to object to any proposed amendment based on its existing and future spectrum usage plan and the need to safeguard investment.
Amendment 424 #
Proposal for a directive
Article 19 – paragraph 2
Article 19 – paragraph 2
2. In line with the needf necessary in order to ensure the effective and efficient use of radio spectrum and competition, or the implementation of harmonised conditions adopted under Decision No 676/2002/EC, Member States may allow withdrawal of rights, including those with a 2530 year minimum duration, based on procedures laid down in advance, in compliance with the principles of proportionality and non-discriminationafter consultations with the right holder and based on fully transparent conditions and procedures laid down prior to the granting of such rights, in compliance with the principles of proportionality and non-discrimination. Member States shall ensure that licence holders, following any withdrawal, are adequately and proportionally compensated with regards to investments made.
Amendment 473 #
Proposal for a directive
Article 22 – paragraph 2
Article 22 – paragraph 2
2. National regulatory authorities may designate a "digital exclusion area" corresponding to an area with clear territorial boundaries where, on the basis of the information gathered pursuant to paragraph 1, it is determinedforeseen that for the duration of the relevant forecast period, no undertaking or public authority has deployed or is planning to deploy a very high capacity network or has significantly upgraded or extended its network to a pverformance of at least 100 Mbps download speedsy high capacity network, or is planning to do so. National regulatory authorities shall publish the designated digital exclusion areas.
Amendment 477 #
Proposal for a directive
Article 22 – paragraph 3
Article 22 – paragraph 3
3. Within a designated digital exclusion area, national regulatory authorities may issue a call open to any undertaking to declare their intention to deploy very high capacity networks over the duration of the relevant forecast period. The national regulatory authority shall specify the information to be included in such submissions, in order to ensure at least a similar level of detail as that taken into consideration in the forecast envisaged in paragraph 1(b). It shall also inform any undertaking expressing its interest whether the designated digital exclusion area is covered or likely to be covered by an NGA network offering download speeds below 100 Mbpsa very high capacity network on the basis of the information gathered pursuant to paragraph 1(b).
Amendment 483 #
Proposal for a directive
Article 22 – paragraph 4
Article 22 – paragraph 4
4. When national regulatory authorities take measures pursuant to paragraph 3, they shall do so according to an efficient, objective, transparent and non- discriminatory procedure, whereby no undertaking is a priori excluded. Failure to provide information pursuant to paragraph 1(b) or to respond to the call for interest pursuant to paragraph 3 may be considered as misleading information pursuant to Articles 20 or 21.
Amendment 542 #
Proposal for a directive
Article 35 – paragraph 1 – subparagraph 2
Article 35 – paragraph 1 – subparagraph 2
When adopting these measures, the national regulatory authority shall take into account the relevant national policy objectives set out by the Member State as well as other relevant national measures in regard to the management of radio spectrum in compliance with Union law and shall base its measure on a thorough and objective assessment of the competitive, technical and economic situation of the market.. It shall also take into account the need to cooperate with other Member States, with the Commission and BEREC in order to ensure a consistent application of the above mentioned powers across the Union. BEREC shall adopt, as soon as practicable following the adoption of this Directive, and to the extent necessary update, radio spectrum policy guidelines with a view to defining best practices in relation to the exercise by national regulatory authorities of their powers under the Code.
Amendment 544 #
Proposal for a directive
Article 35 – paragraph 2
Article 35 – paragraph 2
2. WIn order to facilitate coordination and efficient use of spectrum, also across the borders, where a national regulatory authority intends to take a measure which falls within the scope of paragraph 1 (a) to (g), it shall make the draft measure accessible, together with the reasoning on which the measure is based, to BEREC, the Radio Spectrum Policy Group and the Commission and national regulatory authorities in other Member States, at the same time.
Amendment 545 #
Proposal for a directive
Article 35 – paragraph 2
Article 35 – paragraph 2
2. Where a national regulatory authority intends to take a measure which falls within the scope of paragraph 1 (a) to (g), it shall take the utmost account of BEREC's radio spectrum policy guidelines, make the draft measure accessible, together with the reasoning on which the measure is based, to BEREC, the Commission and national regulatory authorities in other Member States, at the same time and hold a consultation in accordance with Article 24.
Amendment 552 #
Proposal for a directive
Article 35 – paragraph 4 – point c a (new)
Article 35 – paragraph 4 – point c a (new)
(c a) the principles of service and technological neutrality and of effective and efficient use of spectrum;
Amendment 557 #
Proposal for a directive
Article 37 – paragraph 1 – introductory part
Article 37 – paragraph 1 – introductory part
1. Two or several Member States may cooperate with each other and with the Commission and BEREC to meet their obligations under Articles 13, 46 and 54, by jointly establishing the common aspects of an authorisation process and also jointly or through the Commission or BEREC and RSPG, conducting the selection process to grant individual rights of use for radio spectrum in line, where applicable with any common timetable established in accordance with Article 53. The joint authorisation process shall meet the following criteria:
Amendment 558 #
Proposal for a directive
Article 37 – paragraph 1 – point d a (new)
Article 37 – paragraph 1 – point d a (new)
(d a) it shall provide for the manner in which the Member States concerned will reach a common position for the granting of the individual rights.
Amendment 587 #
Proposal for a directive
Article 42 – paragraph 2
Article 42 – paragraph 2
2. Member States shall ensure that reserve prices established as minimum fees for rights of use for radio spectrum reflect and be proportionate to the additional costs entailed by conditions attached to these rights in pursuit of the objectives under Articles 3, 4 and 45(2), such as coverage obligations that would fall outside normal commercial standards, in accordance with paragraph 1 or the value of the spectrum for its next best use.
Amendment 652 #
Proposal for a directive
Article 47 – paragraph 1 – subparagraph 1
Article 47 – paragraph 1 – subparagraph 1
Competent authorities shall attach conditions to individual rights and general authorisations to use radio spectrum in accordance with Article 13(1) in such a way as to ensure a sufficiently high level of network resilience and cyber security, in addition to ensuring the most effective and efficient use of radio spectrum by the beneficiaries of the general authorisation or the holders of individual rights or by any third party to which an individual right or part thereof has been traded or leased. They shall clearly define any such conditions including the level of use required and the possibility to trade and lease in relation to this obligation in order to ensure the implementation of those conditions in line with Article 30. Conditions attached to renewals of right of use for radio spectrum may not provide undue advantages to existing holders of those rights.
Amendment 671 #
Proposal for a directive
Article 49 – paragraph 2
Article 49 – paragraph 2
2. Where Member States grant rights of use for harmonised radio spectrum for a limited period of time, those rights of use for harmonised radio spectrum shall be valid for a duration of at least 2530 years, provided there are conditions to facilitate trading, leasing and sharing of rights, except in the case of temporary rights, temporary extension of rights pursuant to paragraph 3 and rights for secondary use in harmonised bands.
Amendment 675 #
Proposal for a directive
Article 49 – paragraph 3
Article 49 – paragraph 3
3. Member States may without prejudice to Article 53,extend the duration of rights of use for a short period of time to ensure the simultaneous expiry of rights in one or several bands, which shall be as short as possible.
Amendment 677 #
Proposal for a directive
Article 50 – paragraph 2 – point a a (new)
Article 50 – paragraph 2 – point a a (new)
(a a) the need to avoid service disruption with detrimental impact on users' experience;
Amendment 678 #
Proposal for a directive
Article 50 – paragraph 2 – point c
Article 50 – paragraph 2 – point c
(c) review of the appropriate icomplementation ofiance with the conditions attached to the right concerned;
Amendment 681 #
Proposal for a directive
Article 50 – paragraph 2 – point f
Article 50 – paragraph 2 – point f
(f) the need to avoid severe service disruptionlikely effects on existing and future investments by the right holder.
Amendment 683 #
Proposal for a directive
Article 50 – paragraph 3 – subparagraph 2
Article 50 – paragraph 3 – subparagraph 2
If as a result of the consultation pursuant to the first subparagraph, there is clear evidence of market demand from undertakings other than those holding rights of use for spectrum in the band concerned, that would result in more effective and efficient use, the competent authority shall grant the rights pursuant to Article 54 if there are alternatives available.
Amendment 685 #
Proposal for a directive
Article 52 – paragraph 2 – subparagraph 1 – introductory part
Article 52 – paragraph 2 – subparagraph 1 – introductory part
When Member States grant, amend or renew rights of use for radio spectrum, their national regulatory authorities, after having completed a proper market assessment, may whenever it is indispensable to ensure competition may take appropriate measures such as:
Amendment 691 #
Proposal for a directive
Article 52 – paragraph 2 – subparagraph 1 – point b
Article 52 – paragraph 2 – subparagraph 1 – point b
(b) reserving, if appropriate in regard to an exceptional situation in the national market, a certain part of a frequency band or group of bands for assignment to new entrantscertain types of authorisation holders or applicants. Such reservation shall take due account of all elements relevant to the market and operators concerned, including the overall position of the beneficiary of the reservation of rights across all possible activities likely to benefit from such reservation;
Amendment 694 #
Proposal for a directive
Article 52 – paragraph 2 – subparagraph 1 – point d
Article 52 – paragraph 2 – subparagraph 1 – point d
(d) prohibiting or imposing conditions on transfers of rights of use for radio spectrum, not subject to national or Union merger control, where such transfers are likely to result in significant harm to competition;
Amendment 695 #
Proposal for a directive
Article 52 – paragraph 3
Article 52 – paragraph 3
3. When applying paragraph 2, national regulatory authorities shall act in accordance with the procedures provided in Articles 3,18, 19, 23 and 35 of this Directive.
Amendment 777 #
Proposal for a directive
Article 59 – paragraph 2 – subparagraph 3 – point b
Article 59 – paragraph 2 – subparagraph 3 – point b
(b) in the case of recently deployed network elements, in particular by smaller local projector regional projects or undertakings, the granting of that access would compromise the economic or financial viability of their deployment.; or
Amendment 786 #
Proposal for a directive
Article 59 – paragraph 3 – subparagraph 1 – introductory part
Article 59 – paragraph 3 – subparagraph 1 – introductory part
Member States shall ensure that national regulatory authorities have the power to impose on undertakings providing or authorised to provide electronic communications networks obligations in relation to the sharing of passive or active infrastructure, or obligations to conclude localised roaming access agreements, or the joint roll-out of infrastructures directly necessary for the local provision of svervicey high capacity networks which rely on the use of spectrum, in compliance with Union law, where it isprovided no viable and similar alternative means of access to end-users is made available to any undertaking, according to fair and reasonable terms and conditions. However, such access shall be justified on the grounds that,
Amendment 880 #
Proposal for a directive
Article 70 – paragraph 1
Article 70 – paragraph 1
1. A national regulatory authority may, in accordance with Article 66, impose obligations on operators to meet reasonable requests for access to, and use of, civil engineering and passive infrastructure including, without limitation, buildings or entries to buildings, building cables including wiring, antennae, towers and other supporting constructions, poles, masts, ducts, inactive wireline transmission infrastructure including cable and fiber, conduits, inspection chambers, manholes, and cabinets, in situations where the market analysis indicates that denial of access or access given under unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level and would not be in the end-user's interest.
Amendment 920 #
Proposal for a directive
Article 71 – paragraph 1 – subparagraph 2 – point a
Article 71 – paragraph 1 – subparagraph 2 – point a
(a) to give third parties access to specified network elements and/or facilities, as appropriate including access to any active network elements which are either not active or physical and/or active and/or virtual unbundled access to the local loop;
Amendment 946 #
Proposal for a directive
Article 71 – paragraph 2 – introductory part
Article 71 – paragraph 2 – introductory part
2. When national regulatory authorities are considering the appropriateness of imposing any of the possible specific obligations referred in paragraph 1, and in particular when assessing, in conformity with the principle of proportionality, whether and how such obligations should be imposed, they shall analyse whether other forms of access to wholesale inputs either on the same or a related wholesale market, would already be sufficient to address the identified problem at the retail level. The assessment shall include existing or prospective commercial access offers, regulated access pursuant to Article 59, or existing or contemplated regulated access to other wholesale inputs pursuant to this Article but shall at all time be adapted so as to reflect significant market changes. They shall take account in particular of the following factors:
Amendment 1019 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 1 – point a
Article 74 – paragraph 1 – subparagraph 1 – point a
(a) the deployment of the new network elements is open todone through co-investment offers according to a transparent process and on terms which favour sustainable competition in the long term including inter alia fair, reasonable and non- discriminatory terms offered to potential co-investors; flexibility in terms of the value and timing of the commitment provided by each co-investor; possibility to increase such commitment in the future; reciprocal rights awarded by the co- investors after the deployment of the co- invested infrastructure;