Directive 2002/19/EC

Directive 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive)

Published under Risk Management
Title: 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)
Source reference: http://eur-lex.europa.eu/LexUriServ/
Topic: General framework for the regulation of access to, and interconnection of, electronic communications networks and associated facilities.
Direct / indirect relevance Indirect. The text contains certain transparency and governance requirements which imply an obligation to implement appropriate RM/RA measures with regard to network/information security.
Scope: Directly applicable to all EU Member States
Legal force: EU Directive, requires transposition into national law
Affected sectors: Providers of electronic communications services, electronic communications networks, associated facilities and associated services in the Community
Relevant provision(s): Article 9 - Obligation of transparency

1. National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use, and prices.

2. In particular where an operator has obligations of non-discrimination, national regulatory authorities may require that operator to publish a reference offer, which shall be sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested, giving a description of the relevant offerings broken down into components according to market needs, and the associated terms and conditions including prices. The national regulatory authority shall, inter alia, be able to impose changes to reference offers to give effect to obligations imposed under this Directive.

3. National regulatory authorities may specify the precise information to be made available, the level of detail required and the manner of publication.

[…]

Article 10 – Obligation of non-discrimination

1. A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations of non-discrimination, in relation to interconnection and/or access.

2. Obligations of non-discrimination shall ensure, in particular, that the operator applies equivalent conditions in equivalent circumstances to other undertakings providing equivalent services, and provides services and information to others under the same conditions and of the same quality as it provides for its own services, or those of it subsidiaries or partners.

Article 11 – Obligation of accounting separation

1. A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations for accounting separation in relation to specified activities related to interconnection and/or access.

In particular, a national regulatory authority may require a vertically integrated company to make transparent its wholesale prices and its internal transfer prices inter alia to ensure compliance where there is a requirement for non-discrimination under Article 10 or, where necessary, to prevent unfair cross-subsidy. National regulatory authorities may specify the format and accounting methodology to be used.

2. Without prejudice to Article 5 of Directive 2002/21/EC (Framework Directive), to facilitate the verification of compliance with obligations of transparency and non-discrimination, national regulatory authorities shall have the power to require that accounting records, including data on revenues received from third parties, are provided on request. National regulatory authorities may publish such information as would contribute to an open and competitive market, while respecting national and Community rules on commercial confidentiality.

Article 12 - Obligations of access to, and use of, specific network facilities

1. A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities, inter alia in situations 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, or would not be in the end-user's interest.

Operators may be required inter alia:

(a) to give third parties access to specified network elements and/or facilities, including unbundled access to the local loop;

(b) to negotiate in good faith with undertakings requesting access;

(c) not to withdraw access to facilities already granted;

(d) to provide specified services on a wholesale basis for resale by third parties;

(e) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services;

(f) to provide co-location or other forms of facility sharing, including duct, building or mast sharing;

(g) to provide specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services or roaming on mobile networks;

(h) to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services;

(i) to interconnect networks or network facilities.

National regulatory authorities may attach to those obligations conditions covering fairness, reasonableness and timeliness.

[…]

Article 13 – Price control and cost accounting obligations

1. A national regulatory authority may, in accordance with the provisions of Article 8, 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 might sustain prices at an excessively high level, or apply a price squeeze, to the detriment of end-users. National regulatory authorities shall take into account the investment made by the operator and allow him a reasonable rate of return on adequate capital employed, taking into account the risks involved.

[…]
Relevance to RM/RA: The cited articles impose certain information management obligations on the providers of public communications networks or publicly available electronic communications services in order to ensure the accessibility and interconnectivity of the underlying infrastructure in compliance with European free movement of service principles. Specifically, they should:

• Ensure that sufficient transparency is provided, e.g. by making publicly available the requirements for connectivity to their infrastructure in accordance with applicable national regulations;
• Ensure that the principle of non-discrimination is observed with regard to access or connectivity, by ensuring that equivalent conditions apply in equivalent circumstances; • Verify whether they are obliged to maintain separate accounting systems under applicable law for their activities with regard to ensuring compliance with their access/interconnectivity obligations;
• Verify whether they are obliged to open (part of) their infrastructure to third parties under applicable law, and if so under what conditions;
• Verify whether they are subject to cost recovery and price controls schemes to comply with access/interconnectivity obligations under applicable law, and if so under what conditions;

From an RM/RA perspective, the obligations above imply that the affected providers must assess their policies and practices to ensure that they can comply with these obligations.

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