63 Amendments of Anna ZÁBORSKÁ related to 2016/0288(COD)
Amendment 156 #
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 for unconstrained use 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 sthat are capable of deliverving 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 building, 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. Vat least 100 Mbps downlink speed upgradable over time to gigabit speeds and contribute to achieving continuous 5G coverage not taking into account 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, nother technologies andor transmission media should not be excluded, where they compare with this baseline scenario in terms of their capabilities. The roll-out of such 'very high capacity networks' will further increase the capabilities of networks and pave the way for the roll-out of future mobile network generations based on enhanced air interfaces and a more densified network architecture.
Amendment 200 #
Proposal for a directive
Recital 60
Recital 60
(60) Electronic communications broadband networks are becoming increasingly diverse in terms of technology, topology, medium used and ownership, therefore, regulatory intervention must rely on detailed information and forecasts regarding network roll-out in order to be effective and to target the areas where it is needed. That information should include plans regarding both deployment of very high capacity networks, as well as significant upgrades or extensions of existing copper or other networks which might not match the performance characteristics of very high capacity networks in all respects, such as roll-out of fibre to the cabinet coupled with active technologies like vectoring. The level of detail and territorial granularity of the information that national regulatory authorities should gather should be guided by the specific regulatory objective, and should be adequate for the regulatory purposes that it serves. Therefore, the size of the territorial unit will also vary between Member States, depending on the regulatory needs in the specific national circumstances, and on the availability of local data. Level 3 in the Nomenclature of Territorial Units for Statistics (NUTS) is unlikely to be a sufficiently small territorial unit in most circumstances. National regulatory authorities should be guided by BEREC guidelines on best practice to approach such a task, and such guidelines will be able to rely on the existing experience of national regulatory authorities in conducting geographical surveys of networks roll-out. National regulatory authorities should make available tools to end-users as regards quality of service to contribute towards the improvement of their awareness of the available connectivity services.
Amendment 202 #
Proposal for a directive
Recital 61
Recital 61
Amendment 255 #
Proposal for a directive
Recital 172
Recital 172
Amendment 268 #
Proposal for a directive
Recital 178
Recital 178
(178) Due to uncertainty regarding the rate of materialisation of demand for the provision of next-generation broadband services it is important in order to promote efficient investment and innovation to allow those operators investing in new or upgraded networks a certain degree of pricing flexibility. To prevent excessive prices in markets where there are operators designated as having significant market power, pricing flexibility should be accompanied by additional safeguards to protect competition and end-user interests, such as stricteffective non-discrimination obligations, measures to ensure technical and economic replicability of downstream products, and a demonstrable retail price constraint resulting from infrastructure competition or a price anchor stemming from other regulated access products, or both. To this end, it is important to ensure that any safeguard limiting pricing flexibility does not negatively impact investments in new or upgraded networks. This includes, inter alia, that price controls based on retail prices must not lead to a level of regulated wholesale prices that does not allow to recover the costs connected to the deployment and operating of new networks and thus to a situation where the investing operator is put in a worse position than non-investing access seekers. Those competitive safeguards do not prejudice the identification by national regulatory authorities of other circumstances under which it would be appropriate not to impose regulated access prices for certain wholesale inputs, such as where high price elasticity of end-user demand makes it unprofitable for the operator with significant market power to charge prices appreciably above the competitive level.
Amendment 269 #
Proposal for a directive
Recital 180
Recital 180
Amendment 270 #
Proposal for a directive
Recital 181
Recital 181
Amendment 271 #
Proposal for a directive
Recital 182
Recital 182
Amendment 272 #
Proposal for a directive
Recital 183
Recital 183
Amendment 277 #
Proposal for a directive
Recital 184
Recital 184
(184) Due to current uncertainty regarding the rate of materialisation of demand for very high capacity broadband services as well as general economies of scale and density, co-investment agreements offerthe regulatory framework aims at promoting very high capacity deployment models which (a) provide significant benefits in terms of pooling of costs and risks, enabling smaller-scale operators to invest on economically rational terms and thus promoting sustainable, long-term competition, including in areas where infrastructure- based competition might not be efficient. Where an operator with significant market power makes an open call for co-investment; and (b) take into account the different market characteristics and best practices for deployment of new network elements within Member States. Where an operator with significant market power makes an open call for co-investment or provides a wholesale offer including risk sharing, or establishes a joint venture with one or more undertakings competing on retail or wholesale level on fair, reasonable and non-discriminatory terms in new network elements which significantly contribute to the deployment of very high capacity networks, the national regulatory authority should typically refrain from imposing obligations pursuant to this Directive on the new network elements, subject to further review in subsequent market analyses. Provided due account is taken of the prospective pro-competitive effects of the co-investment at wholesale and retail level, national regulatory authorities can still consider it appropriate, in light of the existing market structure and dynamics developed under regulated wholesale access conditions, and in the absence of a commercial offer to that effect, to safeguard the rights of access seekers who do not participate in a given co-investment through the maintenance of existing access products or – where legacy network elements are dismantled in due course – through imposition of access products with comparable functionality to those previously available on the legacy infrastructure.
Amendment 306 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) 'very high capacity network' means anhigh speed electronic communications network which either consists wholly or partly of optical fibre elements at least up to the distribution point at the serving location or which is capable of delivering under usual peak-time conditions similar network performancewith sufficient capacity to allow unconstrained use of the network 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 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 432 #
Proposal for a directive
Article 20 – paragraph 1 – subparagraph 1
Article 20 – paragraph 1 – subparagraph 1
1. Member States shall ensure that undertakings providing electronic communications networks and services associated facilities, or associated services provide all the information, including financial information, necessary for national regulatory authorities, other competent authorities and BEREC to ensure conformity with the provisions of, or decisions made in accordance with, this Directive and the Specific Directives. In particular, national regulatory authorities shall have the power to require those undertakings to submit information concerning future network or service developments that could have an impact on the wholesale services that they make available to competitors. They may also require information on electronic communications networks and associated facilities which is disaggregated at local level and sufficiently detailed for the national regulatory authority to be able to conduct the geographical survey and to designate digital exclusion areas in accordance with Article 22. In accordance with Article 29, national regulatory authorities may sanction undertakings deliberately providing misleading, erroneous or incomplete informationin accordance with Article 22.
Amendment 447 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 1
Article 22 – paragraph 1 – subparagraph 1
Amendment 452 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 2 – point a
Article 22 – paragraph 1 – subparagraph 2 – point a
a) a survey of the current geographic reach of broadband networks within their territory, in particular for conducting the tasks required by Articles 62 and 65 and by Article 81, as well as for imposing obligations in accordance with Article 66 and for the surveys required for the application of State aid rules; and
Amendment 453 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 2 – point b – paragraph 1
Article 22 – paragraph 1 – subparagraph 2 – point b – paragraph 1
Amendment 459 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 2 – point b – paragraph 2
Article 22 – paragraph 1 – subparagraph 2 – point b – paragraph 2
Amendment 465 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 3
Article 22 – paragraph 1 – subparagraph 3
Amendment 470 #
Proposal for a directive
Article 22 – paragraph 2
Article 22 – paragraph 2
Amendment 476 #
Proposal for a directive
Article 22 – paragraph 3
Article 22 – paragraph 3
Amendment 479 #
Proposal for a directive
Article 22 – paragraph 4
Article 22 – paragraph 4
Amendment 490 #
Proposal for a directive
Article 22 – paragraph 5
Article 22 – paragraph 5
5. Member States shall ensure that local, regional and national authorities with responsibility for the allocation of public funds for the deployment of electronic communications networks, for the design of national broadband plans, for defining coverage obligations attached to rights of use for radio spectrum and for verifying availability of services falling within the universal service obligation in their territory take into account the results of the surveys and of the designated digital exclusion areas conducted in accordance with paragraphs 1, 2 and 3, and that national regulatory authorities supply such results subject to the receiving authority ensuring the same level of confidentiality and protection of business secrets as the originating authority. These results shall also be made available to BEREC and the Commission upon their request and under the same conditions. [...]
Amendment 494 #
Proposal for a directive
Article 22 – paragraph 7
Article 22 – paragraph 7
Amendment 785 #
Proposal for a directive
Article 59 – paragraph 3
Article 59 – paragraph 3
Amendment 789 #
Proposal for a directive
Article 59 – paragraph 4
Article 59 – paragraph 4
4. Obligations and conditions imposed in accordance with paragraph 1,2 and 32 shall be objective, transparent, proportionate and non-discriminatory, they shall be implemented in accordance with the procedures referred to in Articles 236, 732 and 33. National regulatory authorities shall assess the results of such obligations and conditions within five years from the adoption of the previous measure adopted in relation to the same operators and whether it would be appropriate to withdraw or amend them in the light of evolving conditions. National regulatory authorities shall notify the outcome of their assessment in accordance with the same procedures.7a33of Directive 2002/21/EC (Framework Directive)
Amendment 816 #
Proposal for a directive
Article 65 – paragraph 2 – introductory part
Article 65 – paragraph 2 – introductory part
2. Where a national regulatory authority conducts the analysis required by paragraph 1, it shall consider developments from a forward-looking perspective in the absence of regulation imposed on the basis of this Article in that relevant market, and taking into accoundetermine that a market is such as to justify the imposition of regulatory obligations pursuant to paragraph 1 when the following criteria are cumulatively met:
Amendment 825 #
Proposal for a directive
Article 65 – paragraph 2 – point a
Article 65 – paragraph 2 – point a
(a) the existabsence of market developments which may increaste the likelihood of the relevant market tending towards effective competition, such as those commercial co- investment or access agreements between operators which benefit competitive dynamics sustainably;
Amendment 833 #
Proposal for a directive
Article 65 – paragraph 2 – point b
Article 65 – paragraph 2 – point b
(b) allbsence of significant relevant competitive constraints, including at retail level, irrespective of whether the sources of such constraints are deemed to be electronic communications networks, electronic communications services, or other types of services or applications which are comparable from the perspective of the end-user, and irrespective of whether such constraints are part of the relevant market;
Amendment 836 #
Proposal for a directive
Article 65 – paragraph 2 – point c
Article 65 – paragraph 2 – point c
(c) other types of regulation or measures imposed and affecting the relevant market or related retail market or markets throughout the relevant period, including, without limitation, obligations imposed in accordance with Articles 44, 58 and 59 are insufficient to adequately address the identified market failure(s); and
Amendment 839 #
Proposal for a directive
Article 65 – paragraph 2 – point d
Article 65 – paragraph 2 – point d
(d) regulation imposed on other relevant markets on the basis of this Article is insufficient to adequately address the identified market failure(s).
Amendment 841 #
Proposal for a directive
Article 65 – paragraph 4
Article 65 – paragraph 4
4. Where a national regulatory authority determines that, in a relevant market the imposition of regulatory obligations in accordance with paragraphs 1 and 2 of this Article is justified, it shall identify any undertakings which individually or jointly have a significant market power on that relevant market in accordance with Article 61. The national regulatory authority shall impose on such undertakings appropriate specific regulatory obligations in accordance with Article 66 or maintain or amend such obligations where they already exist if it considers thatthe following criteria are cumulatively met: (a) one or more retail markets would not be effectively competitive in the absence of those obligations; and (b) there are no obligations imposed in other wholesale markets, which address the identified competition problem in the retail market in question.
Amendment 849 #
Proposal for a directive
Article 65 – paragraph 6 a (new)
Article 65 – paragraph 6 a (new)
6 a. Where, on a forward-looking basis, three access network operators are present or are expected to be present and to sustainably compete in the same retail market, national regulatory authorities shall not identify an operator as having significant market power.
Amendment 859 #
Proposal for a directive
Article 66 – paragraph 6
Article 66 – paragraph 6
6. National regulatory authorities shall consider the impact of new or planned market developments which are reasonably likely to affect competitive dynamics, such as in relation to commercial agreements, including without limitation co- investment agreements, which have been concluded or unforeseeably breached or terminated affecting competitive dynamics and/or undertakings absent from any retail market for electronic communications services. National regulatory authorities shall do so: (a) on their own initiative, taking account of the need for predictable market conditions, or (b) on a reasoned request. If these developments are not sufficiently important in order to determine the need to undertakrequire a new market analysis in accordance with Article 65, the national regulatory authority shall assess without delay whether it is necessary to review the obligations imposedand amend any previous decision, including by withdrawing obligations or imposing new obligations on operators designated with significant market power in order to ensure that such obligations continue to meet the conditions in paragraph 4. Such amendmentrequirements of this Directive, or whether to decide that no, fewer or less onerous obligations shall be imposed with respect to a planned development. Such decisions shall only be imposedmade following consultation in accordance with Articles 23 and 32.
Amendment 872 #
Proposal for a directive
Article 70
Article 70
Amendment 901 #
Proposal for a directive
Article 70 a (new)
Article 70 a (new)
Article 70 a Access obligations beyond civil engineering In geographic areas where two access networks can be expected on a forward- looking basis and where at least one of the network operators offers wholesale access to any interested undertaking, on reasonable commercial terms permitting sustainable competition on the retail market, national regulatory authorities shall not impose or maintain wholesale access obligations, beyond access to civil infrastructure according to Article 3 of Directive 2014/61/EU.
Amendment 906 #
Proposal for a directive
Article 71 – paragraph 1 – subparagraph 1
Article 71 – paragraph 1 – subparagraph 1
Only where a national regulatory authority concludes that the obligations imposed in accordance with Article 703 of Directive 2014/61/EU would not on their own lead to the achievement of the objectives set out in Article 3, it may, in accordance with the provisions of Article 66, impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities, in situations where this is not to the detriment of innovative developments such as very high capacity networks and software emulated networks, and where the national regulatory authority considers that denial of access or 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 913 #
Proposal for a directive
Article 71 – paragraph 1 – subparagraph 2 – introductory part
Article 71 – paragraph 1 – subparagraph 2 – introductory part
Operators may be required inter alia:
Amendment 918 #
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,at a single network layer that best addresses the problem identified at retail level as appropriate including access to network elements which are either not active (or physical) and/or active (or virtual unbundled) access to the local loop;
Amendment 931 #
Proposal for a directive
Article 71 – paragraph 1 – subparagraph 2 – point d
Article 71 – paragraph 1 – subparagraph 2 – point d
(d) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services;
Amendment 934 #
Proposal for a directive
Article 71 – paragraph 1 – subparagraph 2 – point f
Article 71 – paragraph 1 – subparagraph 2 – point f
(f) to provide specified services needed to ensure interoperability of end-to- end services to users, including facilities for software emulated networks or roaming on mobile networks;
Amendment 960 #
Proposal for a directive
Article 71 – paragraph 2 – point e
Article 71 – paragraph 2 – point e
(e) the need to safeguard competition in the long term, with particular attention to economically efficient infrastructure- based competition and to sustainable competition such as those based on co- investment in networks and other innovative commercial business models;
Amendment 971 #
Proposal for a directive
Article 71 – paragraph 2 a (new)
Article 71 – paragraph 2 a (new)
2 a. In order to account for the long- term interest of end-users, national regulatory authorities should focus more on facilitating network investments by all operators. Regulation should not be to the detriment of innovative developments, in particular very high capacity networks, software defined networks and network function virtualisation. Only where strictly necessary to safeguard competition and where no alternative access possibilities, including access based on commercial agreements, exist, regulated access should be maintained in an appropriate and balanced manner, i.e. at a single network layer. Regulated access at multiple network layers has led to unnecessarily high complexity with regard to the consistency of regulated wholesale products at different network layers and unduly restricts flexibility and commercial freedom in the dynamic telecoms market environment. Limiting access to a single network layer that best addresses the problem identified at the retail level will significantly reduce regulatory costs and the potential for regulatory gaming by market players, leading to more efficient and appropriate outcomes. In this regard, national regulatory authorities should assess whether active or passive access is more appropriate in consideration of national or local circumstances. As unbundling is detrimental to network investments by allowing 'cream-skimming' of the most profitable customers at average cost, there should no longer be an obligation to provide unbundled access, which undermines investment models based on product and price differentiation.
Amendment 973 #
Proposal for a directive
Article 72 – paragraph 1 – subparagraph 1
Article 72 – paragraph 1 – subparagraph 1
A national regulatory authority may, in accordance with the provisions of Article 66, impose obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access, in situations where a market analysis indicates that a lack of effective competition means that the operator concerned may sustain prices at an excessively . A national regulatory authority may only impose price controls that ensure fair and reasonable prices and do not negatively impact investments. When applied, a price control shall meet the following cumulative conditions: (a) the price control ensures recovery of all investments connected to the deployment of new networks and fully incorporates the risks associated with these investments; (b) the price control does not lead to a situation where the investing operator is put at a disadvantage compared to non- investing operators or lead to a situation under whigch level, or may apply a price squeeze, to the detriment of end- usan investment would not have been made in the first place; (c) the price control avoids undue profit margins for access seekers to the detriment of the investing operator and appropriately reflects differences in the risks taken by different access seekers.
Amendment 978 #
Proposal for a directive
Article 72 – paragraph 1 – subparagraph 2
Article 72 – paragraph 1 – subparagraph 2
In determining whether or not price control obligations would be appropriate, national regulatory authorities shall take into account long-term end-user interests related to investment in, the deployment of and take-up of next-generation networks, and in particular of very high capacity networks. In particular, to encourage investments by the operator, including in next-generation networks, national regulatory authorities shall take into account the investment made by the operator. Where the national regulatory authorities deem price controls appropriate, they shall allow the operator a reasonable rate of return on adequate capital employed, taking into account any risks specific to a particular new investment network project.
Amendment 982 #
Proposal for a directive
Article 72 – paragraph 1 – subparagraph 3
Article 72 – paragraph 1 – subparagraph 3
National regulatory authorities shall not impose or maintain obligations pursuant to this Article, either for new network elements in case a network roll-out contributes to the availability of very-high capacity networks or where they establish that a demonstrable retail price constraint is present and that any obligations imposed in accordance with Articles 67 to 71, including in particular any economic replicability test imposed in accordance with Article 68 ensures effective and non discriminatoryion of access.
Amendment 983 #
Proposal for a directive
Article 72 – paragraph 3
Article 72 – paragraph 3
Amendment 985 #
Proposal for a directive
Article 73
Article 73
Amendment 1012 #
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 to 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;
Amendment 1020 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 1 – point a – point i (new)
Article 74 – paragraph 1 – subparagraph 1 – point a – point i (new)
i) is conducted by a joint venture established by two or more undertakings with shared ownership, and one or more undertaking participating in the joint venture provides wholesale access or competes on retail level; or
Amendment 1021 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 1 – point a – point ii (new)
Article 74 – paragraph 1 – subparagraph 1 – point a – point ii (new)
ii) is open to 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; or
Amendment 1022 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 1 – point a – point iii (new)
Article 74 – paragraph 1 – subparagraph 1 – point a – point iii (new)
iii) is conducted by a single undertaking that provides a wholesale offer on terms which, similar to conditions for co-investment in subparagraph ii), favour competition in the long term by including, inter alia, fair, reasonable and non-discriminatory terms offered to potential access seekers; flexibility in terms of the value and timing of the commitment provided by each access seeker; possibility to increase such commitment in the future;
Amendment 1028 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 1 – point c
Article 74 – paragraph 1 – subparagraph 1 – point c
(c) access seekers not participating in the co-investmentone of the deployment models listed in point (a) can benefit from the same quality, speed, conditions and end- user reach as was available before the deployment, either through commercial agreements based on fair and reasonable terms or by means of regulated access maintained or adapted by the national regulatory authority;
Amendment 1035 #
Proposal for a directive
Article 74 – paragraph 1 – subparagraph 2
Article 74 – paragraph 1 – subparagraph 2
When assessing co-investment offers and processes referred to in point (a) of the first subparagraphdeployment models listed in subparagraphs (ii) and (iii) of point (a), national regulatory authorities shall ensure that those offers and processes comply with the criteria set out in Annex IV.
Amendment 1113 #
Proposal for a directive
Annex IV – paragraph 1 – introductory part
Annex IV – paragraph 1 – introductory part
When assessing aoffers for co-investment offerr wholesale access pursuant to Article 74 (1), the national regulatory authority shall verify whether the following criteria have been met:
Amendment 1122 #
Proposal for a directive
Annex IV – paragraph 1 – point b – indent 2
Annex IV – paragraph 1 – point b – indent 2
- full detailed terms must be made available without undue delay to any potential bidder that has expressed an interest, including the legal form of the co- investment or wholesale access agreement and - when relevant - the heads of term of the governance rules of the co-investment vehicle; and
Amendment 1124 #
Proposal for a directive
Annex IV – paragraph 1 – point b – indent 3
Annex IV – paragraph 1 – point b – indent 3
- The process, like the road map for the establishment and development of the co-investment projectdeployment models pursuant to subparagraphs (ii) and (iii) of Article 74 (1) (a) of the new network elements must be set in advance, it must clearly explained in writing to any potential co-investor and access seeker, and all significant milestones be clearly communicated to all undertakings without any discrimination.
Amendment 1126 #
Proposal for a directive
Annex IV – paragraph 1 – point c – introductory part
Annex IV – paragraph 1 – point c – introductory part
(c) The co-investment offer shall include terms to potential co-investors and access seekers which favour sustainable competition in the long term, in particular:
Amendment 1129 #
Proposal for a directive
Annex IV – paragraph 1 – point c – indent 1
Annex IV – paragraph 1 – point c – indent 1
- All undertakings have to be offered fair, reasonable and non-discriminatory terms and conditions for participation in the co-investment or wholesale access agreement relative to the time they join, including in terms of financial consideration required for the acquisition of specific rights, in terms of the protection awarded to the co-investors and access seekers by those rights both during the building phase and during the exploitation phase, for example by granting indefeasible rights of use (IRUs) for the expected lifetime of the co-investnewly deployed network elements and in terms of the conditions for joining and potentially terminating the co-investment agreementor wholesale access agreement. Fair, reasonable and non-discriminatory terms shall ensure cost recovery and take into account the risks associated to the investments by the operator. Non-discriminatory terms in this context do not entail that all potential co-investors or access seekers must be offered exactly the same terms, including financial terms, but that all variations of the terms offered must be justified on the basis of the same objective, transparent, non-discriminatory and predictable criteria such as the number of end user lines committed for.
Amendment 1132 #
Proposal for a directive
Annex IV – paragraph 1 – point c – indent 2
Annex IV – paragraph 1 – point c – indent 2
- – The offer must allow flexibility in terms of the value and timing of the commitment provided by each co-investor or wholesale access provider, for example by means of an agreed and potentially increasing percentage of the total end user lines in a given area, to which co-investors or access seekers have the possibility to commit gradually and which shall be set at a unit level enabling smaller co-investors to gradually increase their participation while ensuring adequate levels of initial commitment. The determination of the financial consideration to be provided by each co- investor or access seeker needs to reflect the fact that early investors accept greater risks and engage capital sooner.
Amendment 1134 #
Proposal for a directive
Annex IV – paragraph 1 – point c – indent 3
Annex IV – paragraph 1 – point c – indent 3
- A premium increasing over time has to be considered as justified for commitments made at later stages and for new co-investors entering the co- investmentor access seekers entering after the commencement of the project, to reflect diminishing risks and to counteract any incentive to withhold capital in the earlier stages.
Amendment 1135 #
Proposal for a directive
Annex IV – paragraph 1 – point c – indent 3 a (new)
Annex IV – paragraph 1 – point c – indent 3 a (new)
- Terms and conditions reflecting utilization risks stemming from e.g. low take-up rates compared to overall coverage have to be considered as justified.
Amendment 1137 #
Proposal for a directive
Annex IV – paragraph 1 – point c – indent 4
Annex IV – paragraph 1 – point c – indent 4
- – The co-investment or wholesale access agreements hasve to allow the assignment of acquired rights by co-investors to other co- investors, access seekers or to third parties willing to enter into the co- investment or wholesale access agreement subject to the transferee undertaking being obliged to fulfil all original obligations of the transferor under the co-investment or wholesale access agreement.
Amendment 1139 #
Proposal for a directive
Annex IV – paragraph 1 – point c – indent 5
Annex IV – paragraph 1 – point c – indent 5
- Co-investors have to grant each other reciprocal rights on fair and reasonable terms and conditions to access the co-invested infrastructure for the purposes of providing services downstream, including to end-users, according to transparent conditions which have to be made transparent in the co- investment offer and subsequent agreement, in particular where co-investors are individually and separately responsible for the deployment of specific parts of the network. If a co-investment vehicle is created, it has to provide access to the network to all co-investors, whether directly or indirectly, on an equivalence of inoutputs basis and according to fair and reasonable terms and conditions, including financial conditions that reflect the different levels of risk accepted by the individual co-investors.
Amendment 1140 #
Proposal for a directive
Annex IV – paragraph 1 – point d
Annex IV – paragraph 1 – point d