Index 
Texts adopted
Wednesday, 14 November 2018 - StrasbourgProvisional edition
Interim report on the Multiannual Financial Framework 2021-2027 – Parliament's position with a view to an agreement
 State aid rules: new categories of State aid *
 Arms export: implementation of Common Position 2008/944/CFSP
 Empowering competition authorities and ensuring the proper functioning of the internal market ***I
 European Electronic Communications Code ***I
 Body of European Regulators for Electronic Communications ***I
 CO2 emission performance standards for new heavy duty vehicles ***I
 Need for a comprehensive Democracy, Rule of Law and Fundamental Rights mechanism
 Implementation of the EU-Georgia Association Agreement
 Implementation of the EU-Moldova Association Agreement

Interim report on the Multiannual Financial Framework 2021-2027 – Parliament's position with a view to an agreement
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Resolution
Annex
Annex
Annex
Annex
European Parliament resolution of 14 November 2018 on the Multiannual Financial Framework 2021-2027 – Parliament’s position with a view to an agreement (COM(2018)0322 – C8-0000/2018 – 2018/0166R(APP))
P8_TA-PROV(2018)0449A8-0358/2018

The European Parliament,

–  having regard to Articles 311, 312 and 323 of the Treaty on the Functioning of the European Union (TFEU),

–  having regard to the Commission communication of 2 May 2018 entitled ‘A Modern Budget for a Union that Protects, Empowers and Defends – The Multiannual Financial Framework for 2021-2027’ (COM(2018)0321),

–  having regard to the Commission proposal of 2 May 2018 for a Council regulation laying down the multiannual financial framework for the years 2021 to 2027 (COM(2018)0322), and the Commission proposals of 2 May 2018 on the system of Own Resources of the European Union (COM(2018)0325, COM(2018)0326, COM(2018)0327 and COM(2018)0328),

–  having regard to the Commission proposal of 2 May 2018 for an Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management (COM(2018)0323),

–  having regard to the Commission proposal of 2 May 2018 for a regulation of the European Parliament and of the Council on the protection of the Union’s budget in case of generalised deficiencies as regards the rule of law in the Member States (COM(2018)0324),

–  having regard to its resolutions of 14 March 2018 on ‘The next MFF: preparing the Parliament’s position on the MFF post-2020’ and on the reform of the European Union’s system of own resources(1),

–  having regard to its resolution of 30 May 2018 on the 2021-2027 multiannual financial framework and own resources(2),

–  having regard to the ratification of the Paris Agreement by the European Parliament on 4 October 2016(3) and by the Council on 5 October 2016(4),

–  having regard to UN General Assembly Resolution 70/1 of 25 September 2015 entitled ‘Transforming our world: the 2030 Agenda for Sustainable Development’, which entered into force on 1 January 2016,

–  having regard to the EU’s collective commitment to achieve the target of spending 0,7 % of gross national income (GNI) on official development assistance (ODA) within the time frame of the post-2015 agenda,

–  having regard to its resolution of 19 January 2017 on a European Pillar of Social Rights(5),

–  having regard to Rule 99(5) of its Rules of Procedure,

–  having regard to the interim report of the Committee on Budgets, the opinions of the Committee on Foreign Affairs, the Committee on Development, the Committee on International Trade, the Committee on Budgetary Control, the position in the form of amendments of the Committee on Employment and Social Affairs, the opinions of the Committee on the Environment, Public Health and Food Safety, the Committee on Industry, Research and Energy, the Committee on Transport and Tourism, the Committee on Regional Development, the Committee on Agriculture and Rural Development, the Committee on Culture and Education, the Committee on Constitutional Affairs and the position in the form of amendments of the Committee on Women’s Rights and Gender Equality (A8-0358/2018),

A.  whereas, pursuant to Article 311 TFEU, the Union must provide itself with the means necessary to attain its objectives and carry through its policies;

B.  whereas the current multiannual financial framework (MFF) 2014-2020 was established, for the first time, at a lower level than its predecessor in terms of both commitment and payment appropriations; whereas the late adoption of the MFF and the sectoral legislative acts had a very negative impact on the implementation of the new programmes;

C.  whereas the MFF quickly proved its inadequacy in responding to a series of crises, new international commitments and new political challenges that were not integrated and/or anticipated at the time of adoption; whereas, for the purposes of securing the necessary funding, the MFF was pushed to its limits including an unprecedented recourse to the flexibility provisions and special instruments, after exhausting the available margins; whereas high-priority EU programmes on research and infrastructure were even cut a mere two years after their adoption;

D.  whereas the MFF mid-term revision launched at the end of 2016 proved to be imperative in broadening the potential of the existing flexibility provisions, while falling short of revising the MFF ceilings; whereas this revision was assessed positively by both Parliament and the Council;

E.  whereas the establishment of the new MFF will be a critical moment for the Union of 27, as it will provide for the possibility to endorse a common, long-term vision and decide on the future political priorities as well as the ability of the Union to deliver them; whereas the 2021-2027 MFF should provide the Union with the necessary resources to boost sustainable economic growth, research and innovation, empower young people, effectively address the challenges of migration, fight unemployment, persistent poverty and social exclusion, further strengthen economic, social and territorial cohesion, address sustainability, biodiversity loss and climate change, strengthen the EU’s security and defence, protect its external border and support the neighbourhood countries;

F.  whereas, in light of the global challenges that Member States cannot address alone, it should be possible to acknowledge European common goods and to assess areas where European spending would be more effective than national spending in order to transfer the corresponding financial resources to Union level and, therefore, to strengthen the Union’s strategic importance without necessarily increasing overall public expenditure;

G.  whereas on 2 May 2018, the Commission presented a set of legislative proposals on the 2021-2027 MFF and EU Own Resources, followed by legislative proposals for the setting-up of new EU programmes and instruments;

1.  Stresses that the 2021-2027 MFF must guarantee the Union’s responsibility for and ability to meet emerging needs, additional challenges and new international commitments, and attain its political priorities and objectives; points to the serious problems linked to the underfinancing of the 2014-2020 MFF, and reiterates the necessity of avoiding a repetition of previous mistakes by securing, from the outset, a strong and credible EU budget for the benefit of citizens over the next seven-year period;

2.  Considers that the Commission proposals on the 2021-2027 MFF and the Union’s Own Resources system represent the starting-point for the upcoming negotiations; expresses its position on these proposals, in anticipation of the Council’s negotiating mandate which is not yet available;

3.  Underlines that the Commission proposal regarding the global level of the next MFF, set at 1,08 % of the EU-27 GNI (1,11 % after the integration of the European Development Fund), represents, in terms of GNI percentage, a reduction in real terms compared to the current MFF; considers that the proposed level of the MFF will not allow the Union to deliver on its political commitments and respond to the important challenges ahead; intends, therefore, to negotiate the necessary increase;

4.  Declares, moreover, its opposition to any reduction in the level of long-standing EU policies enshrined in the Treaties, such as cohesion policy and the common agricultural and fisheries policies; is particularly opposed to any radical cuts that will have an adverse impact on the very nature and objectives of these policies, such as the cuts proposed for the Cohesion Fund or for the European Agricultural Fund for Rural Development; opposes, in this context, the proposal to reduce the European Social Fund Plus (ESF+) despite its enlarged scope, and the integration of four existing social programmes, notably the Youth Employment Initiative;

5.  Underlines, furthermore, the importance of the horizontal principles that should underpin the MFF and all related EU policies; reaffirms, in this context, its position that the EU must deliver on its commitment to be a front-runner in implementing the UN Sustainable Development Goals, and deplores the lack of a clear and visible commitment to that end in the MFF proposals; requests, therefore, the mainstreaming of the Sustainable Development Goals in all EU policies and initiatives of the next MFF; further emphasises that all programmes under the next MFF should be in line with the Charter of Fundamental Rights; highlights the importance of delivering on the European Pillar of Social Rights, on the elimination of discrimination, including against LGBTI persons, and on the creation of a portfolio for minorities, including Roma, all of which are vital to fulfilling the EU’s commitments towards an inclusive Europe; underlines that, in order to meet its obligations under the Paris Agreement, the EU’s contribution to the climate objectives target should reach at least 25 % of expenditure over the MFF 2021-2027 period, and 30 % as soon as possible, at the latest by 2027;

6.  Regrets, in this context, that despite the joint statement on gender mainstreaming annexed to the 2014-2020 MFF Regulation, no significant progress has been made in this area, and that the Commission took no account of its implementation in the MFF mid-term review; deeply regrets that gender mainstreaming has been completely sidelined in the MFF proposal, and deplores the lack of clear gender equality goals, requirements and indicators in the proposals on the relevant EU policies; calls for the annual budgetary procedures to evaluate and integrate the full impact of EU policies on gender equality (gender budgeting); expects a renewed commitment by Parliament, the Council and the Commission to gender mainstreaming in the next MFF, and its effective monitoring, including during the MFF mid-term revision;

7.  Underlines that increased accountability, simplification, visibility, transparency and performance-based budgeting must underpin the next MFF; recalls, in this context, the need to strengthen the focus of future spending on performance and results, based on ambitious and relevant performance targets and a comprehensive and shared definition of European added value; asks the Commission, taking into account the above‑mentioned horizontal principles, to streamline performance reporting, to extend it to a qualitative approach that includes environmental and social indicators, and to clearly present information on the main EU challenges still to be tackled;

8.  Is conscious of the serious challenges that the Union is facing and fully assumes its responsibility to secure, in a timely manner, a budget that is commensurate to the needs, expectations and concerns of EU citizens; stands ready to enter immediately into negotiations with the Council, in order to improve the Commission proposals and build a realistic MFF;

9.  Recalls that Parliament’s position is already clearly set out in its resolutions of 14 March and 30 May 2018, which constitute its political stance for the 2021-2027 MFF and Own Resources; recalls that these resolutions were adopted by very large majorities, which demonstrate Parliament’s unity and readiness for the upcoming negotiations;

10.  Expects, therefore, that the MFF will be placed at the top of the Council’s political agenda, and regrets that no significant progress has been observed so far; believes that the regular meetings between the successive Council presidencies and Parliament’s negotiating team should be stepped up and pave the way for official negotiations; expects that a good agreement will be reached prior to the 2019 European Parliament elections, in order to avoid serious setbacks for the launch of the new programmes due to the late adoption of the financial framework, as has been experienced in the past; underlines that this timetable will allow the newly elected European Parliament to adjust the 2021-2027 MFF during the mandatory mid-term revision;

11.  Recalls that revenue and expenditure should be treated as a single package in the upcoming negotiations; stresses, therefore, that no agreement can be reached on the future MFF without corresponding progress being made on the Union’s new Own Resources;

12.  Stresses that all elements of the MFF/Own Resources package, and notably the MFF figures, should remain on the negotiating table until a final agreement is reached; recalls, in this respect, Parliament’s critical stance on the procedure leading to the adoption of the current MFF Regulation and the dominant role that the European Council assumed in this process by deciding irrevocably on a number of elements, including the MFF ceilings and several sectoral policy-related provisions breaching both the spirit and the letter of the treaties; is particularly concerned that the first elements of the MFF ‘negotiating boxes’ prepared by the Council presidency follow the same logic, and contain issues to be co-decided between the Council and Parliament in the adoption of legislation setting up new EU programmes; intends, therefore, to adjust its own strategy accordingly;

13.  Considers that the unanimity requirement for the adoption and revision of the MFF Regulation represents a true impediment to the process; calls on the European Council to activate the passerelle clause provided for in Article 312(2) TFEU, so as to allow the Council to adopt the MFF Regulation by qualified majority;

14.  Adopts the present resolution with the purpose of outlining its negotiating mandate on every aspect of the Commission proposals, including concrete amendments both to the proposed MFF Regulation and to the Interinstitutional Agreement (IIA); presents, furthermore, a table with figures for each EU policy and programme, based on Parliament’s positions, already adopted in previous MFF resolutions; stresses that these figures will also be part of the mandate of Parliament for the upcoming legislative negotiations leading to the adoption of the EU programmes for the period 2021-2027;

A.MFF-RELATED REQUESTS

15.  Requests, therefore, that the Council takes due account of the following positions of Parliament in the interests of achieving a positive outcome of the 2021-2027 MFF negotiations and acquiring Parliament’s consent in accordance with Article 312 TFEU;

Figures

16.  Reconfirms its formal position that the level of the 2021-2027 MFF should be set at EUR 1 324.1 billion in 2018 prices, representing 1,3 % of the EU-27 GNI, in order to ensure the necessary level of funding for key EU policies that will enable them to fulfil their mission and objectives;

17.  Calls, in this context, for the following level of funding to be secured for EU programmes and policies, presented in an order that reflects the MFF structure, as proposed by the Commission, and replicated in the detailed table (Annexes III and IV to the present resolution); calls for the relevant commitment and payment ceilings to be adjusted accordingly, as set out in Annexes I and II to the present resolution:

   i. Increase the budget for Horizon Europe to reach EUR 120 billion in 2018 prices;
   ii. Increase the allocation for the InvestEU Fund, so that it better reflects the 2014-2020 level of the financial instruments integrated into the new programme;
   iii. Increase the level of funding for transport infrastructure through the Connecting Europe Facility programme (CEF-Transport);
   iv. Double the specific funding for SMEs (compared to COSME) in the single market programme, with the aim of enhancing their access to markets, improving business conditions and the competitiveness of enterprises, and promoting entrepreneurship;
   v. Further increase the single market programme to finance a new objective on market surveillance;
   vi. Double the proposed level of funding for the EU anti-fraud programme, and increase the level of funding for the FISCALIS programme;
   vii. Introduce a specific allocation for sustainable tourism;
   viii. Further reinforce the European space programme, notably to reinforce SSA / GOVSATCOM as well as Copernicus;
   ix. Maintain the financing of cohesion policy for the EU-27 at the level of the 2014-2020 budget in real terms;
   x. Double the resources for tackling youth unemployment in the ESF+ (compared to the current Youth Employment Initiative), while ensuring the scheme’s effectiveness and added value;
   xi. Introduce a specific allocation (EUR 5.9 billion) for the Child Guarantee, in order to tackle child poverty both within the EU and through its external actions;
   xii. Triple the current budget for the Erasmus+ programme;
   xiii. Secure a sufficient level of funding for the DiscoverEU programme (Interrail);
   xiv. Increase the current funding for the Creative Europe programme;
   xv. Increase the current funding for the Rights and Values programme and introduce a specific allocation for a new Union values strand (at least EUR 500 million), in order to support civil society organisations which promote fundamental values and democracy within the EU at local and national level;
   xvi. Maintain the financing of the common agricultural policy (CAP) for the EU-27 at the level of the 2014-2020 budget in real terms while budgeting the initial amount of the agricultural reserve;
   xvii. Reinforce by 10 % the level of the European Maritime and Fisheries Fund, in accordance with its new mission on the blue economy;
   xviii. Double the current funding for the Life+ programme, including dedicated envelopes for biodiversity and the management of the Natura 2000 network;
   xix. Introduce a specific allocation (EUR 4.8 billion) for a new Just Energy Transition Fund to address societal, socio-economic and environmental impacts on workers and communities adversely affected by the transition from coal and carbon dependence;
   xx. Reinforce the instrument(s) in support of neighbourhood and development policies (EUR 3.5 billion) to further contribute to the financing of an investment plan for Africa;
   xxi. Reinstate at least the 2020 level for all agencies, while defending the higher level proposed by the Commission, including for the agencies, which have been granted new competences and responsibilities, and calling for a comprehensive approach on fee-financing;
   xxii. Maintain the level of 2014-2020 funding for several EU programmes (e.g. nuclear decommissioning, cooperation with the overseas countries and territories (OCTs)), including those for which it is proposed that they be merged into larger programmes (e.g. assistance for the most deprived, health, consumer rights) and for which the Commission proposal thus represents a reduction in real terms;
   xxiii. Set, subject to the above‑mentioned changes, the financial envelopes of all other programmes at the level proposed by the Commission, including for CEF-Energy, CEF-Digital, the Digital Europe programme, the European Defence Fund and humanitarian aid;

18.  Intends to secure a sufficient level of funding on the basis of the Commission proposal for ‘Migration and Border Management’ (heading 4) and ‘Security and Defence’ including Crisis Response (heading 5); reaffirms its long-standing position that additional political priorities should be coupled with additional financial means, in order not to undermine existing policies and programmes and their financing under the new MFF;

19.  Intends to defend the Commission proposal on securing a sufficient level of funding for a strong, efficient and high-quality European public administration at the service of all Europeans; recalls that, during the current MFF, the EU institutions, bodies and decentralised agencies have implemented a 5 % reduction in staff, and believes that they should not be subject to any further reduction that would directly jeopardise the delivery of Union policies; reiterates, once more, its fierce opposition towards a repetition of the so-called redeployment pool for agencies;

20.  Is determined to prevent another payment crisis in the first years of the 2021-2027 MFF, as was the case during the current period; considers that the overall payment ceiling must take into account the unprecedented volume of outstanding commitments at the end of 2020, the estimated size of which is constantly growing due to major implementation delays, and which will need to be settled under the next MFF; demands, therefore, that the global level of payments, as well as the annual payment ceilings, particularly at the beginning of the period, are set at an appropriate level that also takes due account of this situation; intends to accept only a limited and well-justified gap between commitments and payments for the next MFF;

21.  Presents, on this basis, a table in Annexes III and IV to the present resolution setting out the exact figures proposed for each EU policy and programme; states that, for purposes of comparison, it intends to keep the structure of the individual EU programmes as proposed by the Commission, without any prejudice to possible changes that may be requested during the legislative procedure leading to the adoption of these programmes;

Mid-term revision

22.  Underlines the need to maintain an MFF mid-term revision, building on the positive precedent set in the current framework, and calls for:

   i. a compulsory and legally binding mid-term revision, following a review of the functioning of the MFF, and taking into account an assessment of the progress made towards the climate target, the mainstreaming of the Sustainable Development Goals and gender equality, and the impact of simplification measures on beneficiaries;
   ii. the relevant Commission proposal to be presented in time for the next Parliament and Commission to conduct a meaningful adjustment of the 2021-2027 framework, and no later than 1 July 2023;
   iii. the pre-allocated national envelopes not to be reduced through this revision;

Flexibility

23.  Welcomes the Commission’s proposals on flexibility, which represent a good basis for the negotiations; agrees with the overall architecture of the flexibility mechanisms in the 2021-2027 MFF; stresses that the special instruments have different missions and respond to different needs, and opposes any attempts to merge them; strongly supports the clear provision that both commitment and payment appropriations deriving from the use of special instruments should be entered in the budget over and above the relevant MFF ceilings, as well as the removal of any capping to the adjustments flowing from the global margin for payments; calls for a number of additional improvements to be introduced, inter alia the following:

   i. the replenishment of the Union reserve with an amount equivalent to the revenue resulting from fines and penalties;
   ii. the immediate re-use of de‑commitments made during year n-2, including those resulting from commitments made in the current MFF;
   iii. the lapsed amounts of special instruments to be made available for all special instruments, and not just the Flexibility Instrument;
   iv. a higher allocation for the Flexibility Instrument, the Emergency Aid Reserve, the European Union Solidarity Fund, and the Contingency Margin, the latter without compulsory offsetting;

Duration

24.  Underlines the need for the duration of the MFF to move progressively towards a 5+5 period with a mandatory mid-term revision; accepts that the next MFF should be set for a period of seven years by way of a transitional solution to be applied for one last time; expects the detailed arrangements linked to the implementation of a 5+5 framework to be endorsed at the time of the mid-term revision of the 2021-2027 MFF;

Structure

25.  Accepts the overall structure of seven MFF headings, as proposed by the Commission, which largely corresponds to Parliament’s own proposal; considers that this structure allows for greater transparency, improves the visibility of EU expenditure, while maintaining the necessary degree of flexibility; agrees, moreover, with the creation of ‘programme clusters’ that are expected to lead to a significant simplification and rationalisation of the EU budget structure and its clear alignment with the MFF headings;

26.  Notes that the Commission proposes to reduce the number of EU programmes by more than a third; stresses that Parliament’s position with regard to the structure and composition of the 37 new programmes will be determined in the course of adopting the relevant sectoral legislative acts; expects, in any case, that the proposed budget nomenclature will reflect all of the different components of each programme in a way that guarantees transparency and provides the level of information required for the budgetary authority to establish the annual budget and oversee its implementation;

Unity of the budget

27.  Welcomes the proposed integration of the European Development Fund into the Union budget, which responds to a long-standing Parliament demand for all off-budget instruments; recalls that the principle of unity, whereby all items of revenue and expenditure of the Union are shown in the budget, is both a Treaty requirement and a basic precondition of democracy;

28.  Challenges, therefore, the logic of and justification for establishing instruments outside the budget that prevent parliamentary oversight of public finances and undermine the transparency of decision-making; considers that decisions to set-up such instruments bypass Parliament in its triple responsibility as legislative, budgetary and control authority; considers that, when exceptions are deemed necessary to achieve specific objectives, for example through financial instruments or trust funds, these should be fully transparent, duly justified by proven additionality and added value, and backed by strong decision-making procedures and accountability provisions;

29.  Stresses, however, that the integration of these instruments into the EU budget should not result in a reduction of the financing of other EU policies and programmes; underlines, therefore, the need to decide on the global level of the next MFF without calculating the allocation of 0,03 % of EU GNI that corresponds to the European Development Fund, which should be added on top of the agreed ceilings;

30.  Stresses that the MFF ceilings should not obstruct the financing of the policy objectives of the Union through the Union budget; expects, therefore, that an upward revision of the MFF ceilings will be ensured whenever necessary for the financing of new policy objectives, without having recourse to intergovernmental financing methods;

B.LEGISLATIVE ISSUES

Rule of Law

31.  Stresses the importance of the new mechanism ensuring respect for the values enshrined in Article 2 of the Treaty on European Union (TEU), whereby Member States that do not respect them shall be subject to financial consequences; warns, however, that final beneficiaries of the Union budget shall in no way be affected by the disregard shown by their government for fundamental rights and the rule of law; underlines, therefore, that such measures shall not affect the obligation of government entities or of Member States to make payments to final beneficiaries or recipients;

Ordinary legislative procedure and delegated acts

32.  Stresses that programme objectives and spending priorities, financial allocations, eligibility, selection and award criteria, conditions, definitions, and calculation methods should be determined in the relevant legislation, with full observance of Parliament’s prerogatives as a co-legislator; underlines that, when such measures, which can entail important policy choices, are not included in the basic act, they should be adopted by delegated acts; takes the view, in this context, that multiannual and/or annual work programmes should in general be adopted by delegated acts;

33.  States Parliament’s intention, whenever necessary, to enhance the provisions on governance, accountability, transparency and parliamentary oversight, on the empowerment of local and regional authorities and their partners, as well as on the engagement of NGOs and civil society in the next generation of programmes; also intends to improve and clarify, where needed, the coherence and synergies between and within the various funds and policies; recognises the need for enhanced flexibility in the allocation of resources within certain programmes, but stresses that this should not come at the expense of their original and long-term policy objectives, of predictability, and of Parliament’s rights;

Review clauses

34.  Points out that detailed and effective review clauses should be included in the individual MFF programmes and instruments, in order to ensure that meaningful assessments of them are carried out and that Parliament is subsequently fully involved in any decisions taken on necessary adaptations;

Legislative proposals

35.  Calls on the Commission to present the relevant legislative proposals on top of those which it has already presented, and notably a proposal for a regulation establishing a Just Energy Transition Fund as well as a specific programme on sustainable tourism; supports, furthermore, the introduction of the European Child Guarantee in the ESF+, the integration of a specific Union values strand in the Rights and Values programme, as well as a revision of the Regulation establishing the European Union Solidarity Fund; regrets that the relevant Commission proposals do not contain measures that respond to the requirements of Article 174 TFEU in relation to northernmost regions with very low population density and island, cross-border and mountain regions; considers that a revision of the Financial Regulation should also be proposed whenever the need arises as a result of the MFF negotiations;

C.OWN RESOURCES

36.  Stresses that the current system of Own Resources is highly complex, unfair, non-transparent and totally incomprehensible to the EU’s citizens; calls again for a simplified system that will be more understandable to EU citizens;

37.  Welcomes, in this context, as an important step towards a more ambitious reform, the Commission’s set of proposals adopted on 2 May 2018 on a new system of Own resources; invites the Commission to take into account Opinion No 5/2018 of the European Court of Auditors concerning the Commission’s proposal on the new system of Own resources of the European Union, which underlines that better calculation and further simplification of the system is needed;

38.  Recalls that the introduction of new Own Resources should have a dual purpose: firstly, to bring about a substantial reduction in the proportion of GNI-based contributions, and secondly, to guarantee the adequate financing of EU spending under the post-2020 MFF;

39.  Supports the suggested modernisation of existing Own Resources, which implies:

   maintaining the customs duties as traditional Own Resources for the EU, while decreasing the percentage Member States retain as ‘collection costs’, and going back to the initial rate of 10 %;
   simplifying the Value Added Tax-based Own Resource, i.e. introducing a uniform call rate without exceptions;
   maintaining the GNI-based Own Resource, with the objective of moving progressively towards 40 % its share in the financing of the EU budget, while preserving its balancing function;

40.  Requests, in line with the Commission proposal, the programmed introduction of a basket of new Own Resources which, without increasing the fiscal burden for citizens, would correspond to essential strategic objectives of the EU, the European added value of which is evident and irreplaceable:

   the proper functioning, consolidation and strengthening of the single market, in particular by the implementation of a common consolidated corporate tax base (CCCTB), as a basis for a new Own Resource through the setting of a uniform levy rate on the revenue from the CCCTB and the taxation of large companies in the digital sector profiting from the single market;
   the fight against climate change and the acceleration of energy transition, through measures such as a share of the emission trading scheme income;
   the fight to protect the environment through a contribution based on the quantity of non-recycled plastic packing;

41.  Demands the extension of the list of potential new Own Resources, which should include:

   an Own Resource based on a Financial Transaction Tax (FTT), while calling on all Member States to reach an agreement on an efficient scheme;
   the introduction of a carbon border adjustment mechanism as a new Own Resource for the EU budget, which should ensure a level playing field in international trade and reduce the off-shoring of production, while internalising the costs of climate change in the prices of imported goods;

42.  Expresses strong approval of the abolition of all rebates and other correction mechanisms, accompanied, should the need arise, by a limited phasing out period;

43.  Insists on the introduction of other revenue that should constitute extra revenue for the EU budget without entailing a corresponding reduction in GNI contributions:

   fines paid by companies for breaching the Union’s rules, or fines for late payments of contributions;
   proceeds from fines generated by rulings of the Court of Justice of the European Union, including lump sum or penalty payments imposed on Member States, stemming from infringement actions;

44.  Underlines, moreover, the introduction of other forms of revenue, in line with the Commission proposals, in the case of:

   fees linked to the implementation of mechanisms in direct relation with the EU, such as the European Travel Information and Authorisation System (ETIAS);
   seigniorage, in the form of assigned revenue, for the purpose of financing a new Investment Stabilisation Function;

45.  Points to the need to maintain the credibility of the EU budget vis-à-vis the financial markets, which implies an increase in the Own Resources ceilings;

46.  Calls on the Commission to come up with a proposal to address the paradoxical situation whereby contributions from the UK to the reste à liquider (RAL) pre-2021 will enter the budget as general revenue, thus being counted towards the Own Resource ceiling, while that ceiling will be calculated on the basis of the EU-27 GNI, in other words without the UK, once the country has left the EU; considers that UK contributions should, on the contrary, be calculated on top of the Own Resources ceiling;

47.  Draws attention to the fact that the customs union is an important source of the Union's financial capacity; stresses, in this context, the need to harmonise customs control and management across the Union in order to prevent and combat fraud and irregularities harming the Union's financial interests;

48.  Urges a genuine fight against tax evasion and avoidance, with the introduction of dissuasive sanctions, for offshore territories and for the enablers or promoters of such activities, particularly and as a first step those operating on the European mainland; believes that Member States should cooperate by establishing a coordinated system for monitoring capital movements in order to fight tax evasion, tax avoidance and money laundering;

49.  Is of the opinion that effective measures against corruption and tax evasion by multinationals and the wealthiest individuals would make it possible to return to the Member States’ budgets an amount estimated by the Commission at one trillion euros per year, and that in this field there has been a serious lack of action by the European Union;

50.  Strongly supports the presentation by the Commission of a proposal for a Council regulation laying down implementing measures for the system of Own Resources of the European Union (COM(2018)0327); recalls that Parliament has to give its consent to this regulation; recalls that this regulation is an integral part of the Own Resource package presented by the Commission, and expects the Council to address the four related texts on Own Resources as a single package together with the MFF;

D.MODIFICATIONS TO THE PROPOSAL FOR A REGULATION LAYING DOWN THE 2021-2027 MFF

51.  Takes the view that the proposal for a Council regulation laying down the multiannual financial framework for the years 2021 to 2027 should be modified as follows:

Text proposed by the Commission   Modification
Modification 1
Proposal for a regulation
Recital 1
(1)  Taking into account the need for an adequate level of predictability for preparing and implementing medium-term investments, the duration of the Multiannual Financial Framework (MFF) should be set at seven years starting on 1 January 2021.
(1)  Taking into account the need for an adequate level of predictability for preparing and implementing medium-term investments as well as the need for democratic legitimacy and accountability, the duration of this Multiannual Financial Framework (MFF) should be set at seven years starting on 1 January 2021 with a view to moving subsequently to a five-plus-five-year period that would be aligned with the political cycle of the European Parliament and the Commission.
Modification 2
Proposal for a regulation
Recital 2
(2)  The annual ceilings on commitments appropriations by category of expenditure and the annual ceilings on payment appropriations established by the MFF must respect the applicable ceilings for commitments and own resources, which are set in accordance with the Council Decision on the system of own resources of the European Union adopted in accordance with the third paragraph of Article 311 TFEU.
(2)  The MFF should establish annual ceilings on commitments appropriations by category of expenditure and annual ceilings on payment appropriations so as to ensure that Union expenditure develops in an orderly manner and within the limits of its Own Resources, while also ensuring that the Union can provide itself with the means necessary to attain its objectives and carry through its policies in accordance with the first paragraph of Article 311 of the Treaty on the Functioning of the European Union (TFEU), and can honour its obligations to third parties in accordance with Article 323 TFEU.
Modification 3
Proposal for a regulation
Recital 2 a (new)
(2a)  The level of ceilings should be set on the basis of the amounts necessary for the financing and running of the Union programmes and policies as well as the required margins to be left available for adjustments to future needs. Furthermore, the ceilings for payments should account for the large amount of outstanding commitments expected at the end of 2020. The amounts set in this Regulation as well as in the basic acts for 2021-2027 programmes should be agreed in 2018 prices and, for the sake of simplification and predictability, adjusted on the basis of a fixed deflator of 2 % per year.
Modification 4
Proposal for a regulation
Recital 3
(3)   If it is necessary to mobilise the guarantees given under the general budget of the Union for financial assistance to Member States authorised in accordance with Article [208(1)] of Regulation No EU [xxx/201x] of the European Parliament and of the Council ('the Financial Regulation'), the necessary amount should be mobilised over and above the ceilings of the commitments and payments appropriations of the MFF, while respecting the own resources ceiling.
(3)   If it is necessary to mobilise the guarantees given under the general budget of the Union for financial assistance to Member States authorised in accordance with Article [208(1)] of Regulation No EU [xxx/201x] of the European Parliament and of the Council (‘the Financial Regulation’), the necessary amount should be mobilised over and above the ceilings of the commitments and payments appropriations of the MFF, and should therefore be taken into account when setting any own resources ceiling.
Modification 5
Proposal for a regulation
Recital 4
(4)  The MFF should not take account of budget items financed by assigned revenue within the meaning of the Financial Regulation.
(4)  Assigned revenue financing budget items within the meaning of the Financial Regulation should not be counted towards the MFF ceilings, but all available information should be displayed with full transparency during the procedure of the adoption of the annual budget and during its implementation.
Modification 6
Proposal for a regulation
Recital 6
(6)   Specific and maximum possible flexibility should be implemented to allow the Union to fulfil its obligations in compliance with Article 323 of the Treaty on the Functioning of the European Union (TFEU).
(6)   Maximum flexibility should be ensured within the MFF, in particular to guarantee that the Union can fulfil its obligations in compliance with Article 311 and Article 323 of the TFEU.
Modification 7
Proposal for a regulation
Recital 7
(7)   The following special instruments are necessary to allow the Union to react to specified unforeseen circumstances, or to allow the financing of clearly identified expenditure which cannot be financed within the limits of the ceilings available for one or more headings as laid down in the MFF in order to allow the budget procedure to run smoothly: the European Globalisation Adjustment Fund, the European Union Solidarity Fund, the Emergency Aid Reserve, the Global Margin for Commitments (Union Reserve), the Flexibility Instrument and the Contingency Margin. The Emergency Aid Reserve is not aimed at addressing the consequences of market related crises affecting the agricultural production or distribution. Specific provision should therefore be made for the possibility to enter commitment and corresponding payment appropriations into the budget over and above the ceilings set out in the MFF where it is necessary to use special instruments.
(7)  The following special instruments are necessary to allow the Union to react to specified unforeseen circumstances, or to allow the financing of clearly identified expenditure which cannot be financed within the limits of the ceilings available for one or more headings as laid down in the MFF, thereby allowing the annual budgetary procedure to run smoothly: the European Globalisation Adjustment Fund, the European Union Solidarity Fund, the Emergency Aid Reserve, the Global Margin for Commitments (Union Reserve for Commitments), the Flexibility Instrument and the Contingency Margin. Specific provision should therefore be made for the possibility to enter commitment and corresponding payment appropriations into the budget over and above the ceilings set out in the MFF where it is necessary to use special instruments.
Modification 8
Proposal for a regulation
Recital 7 a (new)
(7 a)  In particular, while the Union and its Member States should make every effort to ensure that commitments authorised by the budgetary authority are effectively implemented for their original purpose, it should be possible to mobilise commitment appropriations that have not been executed or that have been de-committed through the Union Reserve for Commitments, provided that this is not a means for beneficiaries to circumvent the relevant de-commitment rules.
Modification 9
Proposal for a regulation
Recital 9
(9)   Rules should be laid down for other situations that may require the MFF to be adjusted. Those adjustments may be related to the delayed adoption of new rules or programmes under shared management, or to measures linked to sound economic governance or to the protection of the Union’s budget in the case of generalised deficiencies as regards the rule of law in the Member States adopted in accordance with the relevant basic acts.
(9)   Rules should be laid down for other situations that may require the MFF to be adjusted. Those adjustments may be related to the delayed adoption of new rules or programmes under shared management, or to the suspension of budgetary commitments in accordance with the relevant basic acts.
Modification 10
Proposal for a regulation
Recital 10
(10)   It is necessary to carry-out a review of the functioning of the MFF at mid-term of its implementation. The results of this review should be taken into account in any revision of this Regulation for the remaining years of the MFF.
(10)   In order to take into account new policies and priorities, the MFF should be revised at mid-term on the basis of a review of the functioning and implementation of the MFF, which should also contain a report setting out the methods for the practical implementation of a five-plus-five-year financial framework.
Modification 11
Proposal for a regulation
Recital 10 a (new)
(10 a)  In order to fulfil the Union’s commitment to being a front runner in implementing the UN Sustainable Development Goals, including gender equality, the MFF revision shall be prepared taking into account progress made in their implementation in all EU policies and initiatives of the 2021-2027 MFF, measured on the basis of performance indicators drawn up by the Commission, as well as progress in the mainstreaming of gender in all EU activities. The MFF revision shall also be prepared taking into account progress made in achieving the overall target of contributing 25 % of EU expenditure to climate objectives over the 2021-2027 MFF period, and the achievement of an annual 30 % spending target as soon as possible and at the latest by 2027, measured on the basis of reformed performance indicators that differentiate between mitigation and adaptation. The revision should also assess, in consultation with national and local stakeholders, whether the adopted simplification measures have actually achieved a reduction in red tape for beneficiaries in the implementation of programmes;
Modification 12
Proposal for a regulation
Recital 12 a (new)
(12 a)  All expenditure at Union level dedicated to the implementation of Union policies based on the Treaties is expenditure of the Union within the meaning of Article 310(1) TFEU, and should therefore be entered in the budget of the Union in accordance with the budgetary procedure laid down in Article 314 TFEU, thereby ensuring respect for the fundamental principles of the democratic representation of citizens in decision-making, parliamentary oversight of public finances and transparency of decision-making. The MFF ceilings may not obstruct the financing through the Union budget of the policy objectives of the Union. It is therefore necessary to provide for an upward revision of the MFF whenever this is needed to facilitate the financing of Union policies, in particular new policy objectives, without having recourse to intergovernmental or quasi-intergovernmental financing methods.
Modification 13
Proposal for a regulation
Recital 13
(13)  Specific rules are also necessary for dealing with large scale infrastructure projects whose lifetime extends well beyond the period set for the MFF. It is necessary to establish maximum amounts for the contributions from the general budget of the Union to those projects, thereby ensuring that they do not have any impact on other projects financed from that budget.
(13)  Specific rules are also necessary for dealing with large‑scale infrastructure projects whose lifetime extends well beyond the period set for the MFF. The financing of these large-scale projects, which are of strategic importance for the Union, needs to be secured in the general budget of the Union, but it is necessary to establish maximum amounts for its contributions to those projects, thereby ensuring that possible cost overruns do not have any impact on other projects financed from that budget;
Modification 14
Proposal for a regulation
Recital 14
(14)   It is necessary to provide for general rules on interinstitutional cooperation in the budgetary procedure.
(14)  It is necessary to provide for general rules on transparency and interinstitutional cooperation in the budgetary procedure, respecting the budgetary powers of the institutions as laid down in the Treaties, so as to ensure that budgetary decisions are taken as openly as possible and as closely as possible to the citizen, as required by Article 10(3) TEU, and that the budgetary procedure runs smoothly, as provided for in Article 312(3) TFEU, second paragraph.
Modification 15
Proposal for a regulation
Recital 15
(15)  The Commission should present a proposal for a new multiannual financial framework before 1 July 2025, to enable the institutions to adopt it sufficiently in advance of the start of the subsequent multiannual financial framework. In accordance with Article 312(4) TFEU the ceilings corresponding to the last year set out in this Regulation are to continue to apply in the event that a new financial framework is not adopted before the end of the term of the MFF laid down in this Regulation.
(15)  The Commission should present a proposal for a new multiannual financial framework before 1 July 2025. This timeframe will provide the newly appointed Commission with the necessary time to draw up its proposals, and enable the European Parliament emerging from the 2024 elections to come forward with its own position on the post-2027 MFF. It will also enable the institutions to adopt it sufficiently in advance of the start of the subsequent multiannual financial framework. In accordance with Article 312(4) TFEU the ceilings corresponding to the last year set out in this Regulation are to continue to apply in the event that a new financial framework is not adopted before the end of the term of the MFF laid down in this Regulation.
Modification 16
Proposal for a regulation
Chapter 1 – Article 3 – title
Respect of own resources ceiling
Relationship to own resources
Modification 17
Proposal for a regulation
Chapter 1 – Article 3 – paragraph 4
4.  For each of the years covered by the MFF, the total appropriations for payments required, after annual adjustment and taking account of any other adjustments and revisions as well as the application of paragraphs 2 and 3 of Article 2, may not be such as to produce a call-in rate for own resources that exceeds the own resources ceiling set in accordance with the Council decision on the system of own resources of the European Union adopted in accordance with the third paragraph of Article 311 TFEU ('Own Resources Decision') in force.
4.  For each of the years covered by the MFF, the total appropriations for payments required, after annual adjustment and taking account of any other adjustments and revisions as well as the application of paragraphs 2 and 3 of Article 2, may not be such as to produce a call-in rate for own resources that exceeds the limits of the Union’s own resources, without prejudice to the obligation of the Union to provide itself with the means necessary to attain its objectives and carry through its policies in accordance with the first paragraph of Article 311 TFEU, and the obligation of the institutions to ensure that the financial means are made available to allow the Union to fulfil its legal obligations in respect of third parties in accordance with Article 323 TFEU.
Modification 18
Proposal for a regulation
Chapter 1 – Article 3 – paragraph 5
5.  Where necessary, the ceilings set in the MFF shall be lowered in order to ensure compliance with the own resources ceiling set in accordance with the Own Resources Decision in force.
deleted
Modification 19
Proposal for a regulation
Chapter 2 – Article 5 – paragraph 4
4.  Without prejudice to Article 6, 7 and 8, no further technical adjustments shall be made in respect of the year concerned, either during the year or as ex post corrections during subsequent years.
deleted
Modification 20
Proposal for a regulation
Chapter 2 – Article 7 – title
Adjustments related to measures linked to sound economic governance or to the protection of the Union’s budget in the case of generalised deficiencies as regards the rule of law in the Member States
Adjustments related to the suspension of budgetary commitments
Modification 21
Proposal for a regulation
Chapter 2 – Article 7
In the case of the lifting, in accordance with the relevant basic acts, of a suspension of budgetary commitments concerning Union funds in the context of measures linked to sound economic governance or to the protection of the Union’s budget in the case of generalised deficiencies as regards the rule of law in the Member States, the amounts corresponding to the suspended commitments shall be transferred to the following years and the corresponding ceilings of the MFF shall be adjusted accordingly. Suspended commitments of year n may not be entered in the budget beyond year n+2.
In the case of the lifting, in accordance with the relevant basic acts, of a suspension of budgetary commitments, the corresponding amounts shall be transferred to the following years and the corresponding ceilings of the MFF shall be adjusted accordingly. Suspended commitments of year n may not be entered in the budget beyond year n+2. As from year n+3, an amount equivalent to the lapsed commitments shall be entered in the Union Reserve for Commitments provided for in Article 12.
Modification 22
Proposal for a regulation
Chapter 3 – Article 10 – paragraph 1
1.  The European Union Solidarity Fund, the objectives and scope of which are set out in Council Regulation (EC) No 2012/2002, shall not exceed a maximum annual amount of EUR 600 million (2018 prices). On 1 October of each year, at least one quarter of that annual amount shall remain available in order to cover needs arising until the end of that year. The portion of the annual amount not used in year n may be used up to year n+1. The portion of the annual amount stemming from the previous year shall be drawn on first. That portion of the annual amount from year n which is not used in year n+1 shall lapse.
1.  The European Union Solidarity Fund is intended to allow for financial assistance in the event of major disasters occurring on the territory of a Member State or of a candidate country, as defined in the relevant basic act, and shall not exceed a maximum annual amount of EUR 1 000 million (2018 prices). On 1 October of each year, at least one quarter of that annual amount shall remain available in order to cover needs arising until the end of that year. The portion of the annual amount not used in year n may be used up to year n+1. The portion of the annual amount stemming from the previous year shall be drawn on first. That portion of the annual amount from year n which is not used in year n+1 shall lapse.
Modification 23
Proposal for a regulation
Chapter 3 – Article 10 – paragraph 1 a (new)
1a.  The appropriations for the European Union Solidarity Fund shall be entered in the general budget of the Union as a provision.
Modification 24
Proposal for a regulation
Chapter 3 – Article 11 – paragraph 2
2.  The annual amount of the Reserve is fixed at EUR 600 million (2018 prices) and may be used up to year n+1 in accordance with the Financial Regulation. The Reserve shall be entered in the general budget of the Union as a provision. The portion of the annual amount stemming from the previous year shall be drawn on first. That portion of the annual amount from year n which is not used in year n+1 shall lapse. By 1 October of each year, at least one quarter of the annual amount for year n shall remain available to cover needs arising until the end of that year. No more than half of the amount available until 30 September each year may be mobilised for, respectively, internal or external operations. As of 1 October, the remaining part of the amount available may be mobilised either for internal or external operations to cover needs arising until the end of that year.
2.  The annual amount of the Emergency Aid Reserve is fixed at EUR 1 000 million (2018 prices) and may be used up to year n+1 in accordance with the Financial Regulation. The Reserve shall be entered in the general budget of the Union as a provision. The portion of the annual amount stemming from the previous year shall be drawn on first. That portion of the annual amount from year n which is not used in year n+1 shall lapse. By 1 October of each year, at least EUR 150 million (2018 prices) of the annual amount for year n shall remain available to cover needs arising until the end of that year. No more than half of the amount available until 30 September each year may be mobilised for, respectively, internal or external operations. As of 1 October, the remaining part of the amount available may be mobilised either for internal or external operations to cover needs arising until the end of that year.
Modification 25
Proposal for a regulation
Chapter 3 – Article 12 – title
Global Margin for Commitments (Union Reserve)
Global Margin for Commitments (Union Reserve for Commitments)
Modification 26
Proposal for a regulation
Chapter 3 – Article 12 – paragraph 1
1.  The Global Margin for Commitments (Union Reserve), to be made available over and above the ceilings established in the MFF for the years 2022 to 2027, shall comprise the following:
(a)  margins left available below the MFF ceilings for commitments of year n-1;
(b)  as of 2023, in addition to the margins referred to in point (a), an amount equivalent to de-commitments of appropriations made during year n-2, without prejudice to Article [15] of the Financial Regulation.
1.  The Global Margin for Commitments (Union Reserve for Commitments), to be made available over and above the ceilings established in the MFF for the years 2021 to 2027, shall comprise the following:
(a)  margins left available below the MFF ceilings for commitments of previous years;
(a a)  unexecuted commitment appropriations of year n-1;
(b)  an amount equivalent to de-commitments of appropriations made during year n-2, without prejudice to Article [15] of the Financial Regulation;
(b a)  an amount equivalent to the amount of suspended commitments of year n-3 that may no longer be entered in the budget pursuant to Article 7;
(b b)  an amount equivalent to the amount of revenue resulting from fines and penalties.
Modification 27
Proposal for a regulation
Chapter 3 – Article 12 – paragraph 2
2.  The Global Margin for Commitments (Union Reserve) or part thereof may be mobilised by the European Parliament and the Council in the framework of the budgetary procedure provided for in Article 314 TFEU.
2.  The Global Margin for Commitments (Union Reserve for Commitments) or part thereof may be mobilised by the European Parliament and the Council in the framework of the budgetary procedure provided for in Article 314 TFEU. Margins of year n may be mobilised for years n and n+1 through the Union Reserve for Commitments, provided this does not conflict with pending or planned amending budgets.
Modification 28
Proposal for a regulation
Chapter 3 – Article 12 – paragraph 3 a (new)
3a.  At the end of 2027, amounts that remain available under the Union Reserve for Commitments shall be carried over to the next MFF up to 2030.
Modification 29
Proposal for a regulation
Chapter 3 – Article 13 – paragraph 1
The Flexibility Instrument may be used for the financing, for a given financial year, of clearly identified expenditure which could not be financed within the limits of the ceilings available for one or more other headings. Subject to the second subparagraph, the ceiling of the annual amount available for the Flexibility Instrument is set at EUR 1 000 million (2018 prices).
The Flexibility Instrument may be used for the financing, for a given financial year, of clearly identified expenditure which could not be financed within the limits of the ceilings available for one or more other headings or within the European Globalisation Adjustment Fund, the European Union Solidarity Fund and the Emergency Aid Reserve. Subject to the second subparagraph, the ceiling of the annual amount available for the Flexibility Instrument is set at EUR 2 000 million (2018 prices).
Modification 30
Proposal for a regulation
Chapter 3 – Article 14 – paragraph 1
1.  A Contingency Margin of up to 0.03 % of the Gross National Income of the Union shall be constituted outside the ceilings of the MFF, as a last resort instrument to react to unforeseen circumstances. It may be mobilised only in relation to an amending or annual budget.
1.  A Contingency Margin of up to 0,05% of the Gross National Income of the Union shall be constituted outside the ceilings of the MFF, as a last resort instrument to react to unforeseen circumstances. It may be mobilised only in relation to an amending or annual budget. It may be mobilised for both commitment and payment appropriations, or for payment appropriations only.
Modification 31
Proposal for a regulation
Chapter 3 – Article 14 – paragraph 2
2.  Recourse to the Contingency Margin shall not exceed, at any given year, the maximum amount provided in the annual technical adjustment of the MFF, and shall be consistent with the own resources ceiling.
2.  Recourse to the Contingency Margin shall not exceed, at any given year, the maximum amount provided in the annual technical adjustment of the MFF.
Modification 32
Proposal for a regulation
Chapter 3 – Article 14 – paragraph 3
3.  Amounts made available through the mobilisation of the Contingency Margin shall be fully offset against the margins in one or more MFF headings for the current or future financial years.
deleted
Modification 33
Proposal for a regulation
Chapter 3 – Article 14 – paragraph 4
4.  The amounts offset in accordance with paragraph 3 shall not be further mobilised in the context of the MFF. Recourse to the Contingency Margin shall not result in exceeding the total ceilings of commitment and payment appropriations laid down in the MFF for the current and future financial years.
deleted
Modification 34
Proposal for a regulation
Chapter 4 – title
Review and Revision of the MFF
Revisions
Modification 35
Proposal for a regulation
Chapter 4 – Article 15 – paragraph 1
1.  Without prejudice to Article 3(2) and Articles 16 to 20 and 24, in the event of unforeseen circumstances, the MFF may be revised in compliance with the own resources ceiling set in accordance with the Own Resources Decision in force.
1.  Without prejudice to Article 3(2) and Articles 16 to 20 and 24, the relevant MFF ceilings shall be revised upward in the event that this is necessary to facilitate the financing of Union policies, in particular new policy objectives, in circumstances where it would otherwise be necessary to establish additional intergovernmental or quasi-intergovernmental financing methods that would circumvent the budgetary procedure laid down in Article 314 TFEU.
Modification 36
Proposal for a regulation
Chapter 4 – Article 15 – paragraph 3
3.  Any proposal for revision of the MFF in accordance with paragraph 1 shall examine the scope for reallocating expenditure between the programmes covered by the heading concerned by the revision, with particular reference to any expected under-utilisation of appropriations.
deleted
Modification 37
Proposal for a regulation
Chapter 4 – Article 16 – title
Mid-term review of the MFF
Mid-term revision of the MFF
Modification 38
Proposal for a regulation
Chapter 4 – Article 16
Before 1 January 2024, the Commission shall present a review of the functioning of the MFF. This review shall, as appropriate, be accompanied by relevant proposals.
Before 1 July 2023, the Commission shall present a legislative proposal for the revision of this Regulation in accordance with the procedures set out in the TFEU, based on a review of the functioning of the MFF. Without prejudice to Article 6 of this Regulation, pre‑allocated national envelopes shall not be reduced through such a revision.
The proposal shall be drawn up taking into account an assessment of:
—  progress towards the overall target of contributing 25 % of EU expenditure to climate objectives over the 2021-2027 MFF period, and towards a 30 % annual spending target as soon as possible;
—  the mainstreaming of the UN Sustainable Development Goals;
—  the mainstreaming of a gender perspective in the Union budget (gender budgeting);
—  the impact of simplification measures on the reduction in red tape for beneficiaries in the implementation of the financial programmes, to be carried out in consultation with stakeholders;
Modification 39
Proposal for a regulation
Chapter 4 – Article 17
When notifying the European Parliament and the Council of the results of the technical adjustments to the MFF, the Commission shall, where appropriate, submit any proposal to revise the total appropriations for payments which it considers necessary, in the light of implementation, to ensure a sound management of the yearly payments ceilings, and in particular their orderly progression in relation to the appropriations for commitments.
When notifying the European Parliament and the Council of the results of the technical adjustments to the MFF, or when the ceilings for payments may prevent the Union from honouring its legal commitments, the Commission shall submit any proposal to revise the total appropriations for payments which it considers necessary, in the light of implementation, to ensure a sound management of the yearly payments ceilings, and in particular their orderly progression in relation to the appropriations for commitments.
Modification 40
Proposal for a regulation
Chapter 5 – Article 21 – paragraph 1
1.  A maximum amount of EUR 14 196 million (in 2018 prices) shall be available from the general budget of the Union for the period 2021 to 2027 for the large scale projects under [Regulation XXXX/XX of the European Parliament and the Council - Space Programme].
1.  A maximum amount shall be available jointly for the European satellite navigation programmes (EGNOS and Galileo) and for Copernicus (the European Earth observation programme) from the general budget of the Union for the period 2021 to 2027. This maximum amount shall be set at 15 % above the indicative amounts set for both large-scale projects under [Regulation XXXX/XX of the European Parliament and the Council – Space Programme]. Any reinforcement within this maximum amount shall be financed through the margins or the special instruments, and shall not result in reductions in other programmes and projects.
Modification 41
Proposal for a regulation
Chapter 5 – Article 21 – paragraph 2 a (new)
2a.  Should additional financing needs from the Union budget arise for the above-mentioned large-scale projects, the Commission shall propose a revision of the MFF ceilings accordingly.
Modification 42
Proposal for a regulation
Chapter 6 – title
Interinstitutional cooperation in the budgetary procedure
Transparency and interinstitutional cooperation in the budgetary procedure
Modification 43
Proposal for a regulation
Chapter 6 – Article 22
Interinstitutional cooperation in the budgetary procedure
Transparency and interinstitutional cooperation in the budgetary procedure
Modification 44
Proposal for a regulation
Chapter 6 – Article 22 – paragraph 4 a (new)
Both the European Parliament and the Council shall be represented by members of the respective institution when meetings are held at political level.
Modification 45
Proposal for a regulation
Chapter 6 – Article 22 – paragraph 4 b (new)
The European Parliament and the Council shall meet in public when adopting their respective positions on the draft budget.
Modification 46
Proposal for a regulation
Chapter 6 – Article 23
All expenditure and revenue of the Union and Euratom shall be included in the general budget of the Union in accordance with Article [7] of the Financial Regulation, including expenditure resulting from any relevant decision taken unanimously by the Council after consulting the European Parliament, in the framework of Article 332 TFEU.
All expenditure and revenue of the Union and Euratom shall be included in the general budget of the Union in accordance with Article 310(1) TFEU, including expenditure resulting from any relevant decision taken unanimously by the Council after consulting the European Parliament, in the framework of Article 332 TFEU.
Modification 47
Proposal for a regulation
Chapter 7 – Article 24
Before 1 July 2025, the Commission shall present a proposal for a new multiannual financial framework.
Before 1 July 2023, together with its proposals for the mid-term revision, the Commission shall present a report setting out the methods for the practical implementation of a five-plus-five year period for the financial framework.
Before 1 July 2025, the Commission shall present a proposal for a new multiannual financial framework.
If no Council regulation determining a new multiannual financial framework has been adopted before 31 December 2027, the ceilings and other provisions corresponding to the last year of the MFF shall be extended until a regulation determining a new financial framework is adopted. If a new Member State accedes to the Union after 2020, the extended financial framework shall, if necessary, be revised in order to take the accession into account.

E.MODIFICATIONS TO THE PROPOSAL FOR AN INTERINSTITUTIONAL AGREEMENT

52.Stresses that, as a result of the negotiation and adoption of a new MFF Regulation, the proposal for an Interinstitutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management should be modified as follows:

Modification 48
Proposal for an Interinstitutional Agreement
Part 1
Section A – point 6 a (new)
6 a Information relating to operations not included in the general budget of the Union and to the foreseeable development of the various categories of the Unions Own Resources is set out, by way of indication, in separate tables. This information shall be updated annually together with the documents accompanying the draft budget.
Modification 49
Proposal for an Interinstitutional Agreement
Part I
Section A – point 7
7.  The institutions shall, for the purposes of sound financial management, ensure as far as possible during the budgetary procedure and at the time of the budget's adoption that sufficient margins are left available beneath the ceilings for the various headings of the MFF.
7.  The institutions shall, for the purposes of sound financial management, ensure as far as possible during the budgetary procedure and at the time of the budget’s adoption that sufficient amounts are left available within the margins beneath the ceilings for the various headings of the MFF or within the available special instruments.
Modification 50
Proposal for an Interinstitutional Agreement
Part I
Section A – point 8
Updating of forecasts for payment appropriations after 2027
8.  In 2024, the Commission shall update the forecasts for payment appropriations after 2027.
That update shall take into account all relevant information, including the real implementation of budget appropriations for commitments and budget appropriations for payments, as well as the implementation forecasts. It shall also consider the rules designed to ensure that payment appropriations develop in an orderly manner compared to commitment appropriations and the growth forecasts of the Union's Gross National Income.
Updating of forecasts for payment appropriations
8.  Every year, the Commission shall update the forecasts for payment appropriations until and after 2027.
That update shall take into account all relevant information, including the real implementation of budget appropriations for commitments and budget appropriations for payments, as well as the implementation forecasts. It shall also consider the rules designed to ensure that payment appropriations develop in an orderly manner compared to commitment appropriations and the growth forecasts of the Union's Gross National Income.
Modification 51
Proposal for an Interinstitutional Agreement
Part I
Section B – point 9
9.  When the conditions for mobilising the European Globalisation Adjustment Fund, as set out in the relevant basic act, are met, the Commission shall submit to the European Parliament and the Council a proposal for a transfer to the relevant budgetary lines.
Transfers related to the Globalisation Adjustment Fund shall be made in accordance with the Financial Regulation.
9.  When the conditions for mobilising the European Globalisation Adjustment Fund, as set out in the relevant basic act, are met, the Commission shall make a proposal to mobilise it. The decision to mobilise the Globalisation Adjustment Fund shall be taken jointly by the European Parliament and the Council.
At the same time as it presents its proposal for a decision to mobilise the Globalisation Adjustment Fund, the Commission shall present to the European Parliament and the Council a proposal for a transfer to the relevant budgetary lines.
In the event of disagreement, the matter shall be addressed at the next budget trilogue.
Transfers related to the Globalisation Adjustment Fund shall be made in accordance with the Financial Regulation.
Modification 52
Proposal for an Interinstitutional Agreement
Part I
Section B – point 10
10.  When the conditions for mobilising the European Union Solidarity Fund as set out in the relevant basic act are met, the Commission shall make a proposal for the appropriate budgetary instrument in accordance with the Financial Regulation.
10.  When the conditions for mobilising the European Union Solidarity Fund as set out in the relevant basic act are met, the Commission shall make a proposal to mobilise it. The decision to mobilise the Solidarity Fund shall be taken jointly by the European Parliament and the Council.
At the same time as it presents its proposal for a decision to mobilise the Solidarity Fund, the Commission shall present to the European Parliament and the Council a proposal for a transfer to the relevant budgetary lines.
In the event of disagreement, the matter shall be addressed at the next budget trilogue.
Transfers related to the Solidarity Fund shall be made in accordance with the Financial Regulation.
Modification 53
Proposal for an Interinstitutional Agreement
Part I
Section B – point 11
11.  When the Commission considers that the Emergency Aid Reserve needs to be called on, it shall present to the European Parliament and the Council a proposal for a transfer from the Reserve to the corresponding budgetary lines in accordance with the Financial Regulation.
11.  When the Commission considers that the Emergency Aid Reserve needs to be called on, it shall present to the European Parliament and the Council a proposal for a transfer from the Reserve to the corresponding budgetary lines in accordance with the Financial Regulation.
In the event of disagreement, the matter shall be addressed at the next budget trilogue.
Modification 54
Proposal for an Interinstitutional Agreement
Part I
Section B – point 12
Flexibility Instrument
12.  The Commission shall make a proposal for the mobilisation of the Flexibility Instrument after it has examined all possibilities for re-allocating appropriations under the heading requiring additional expenditure.
The proposal shall identify the needs to be covered and the amount. Such a proposal may be made in relation to a draft budget or draft amending budget.
The Flexibility Instrument may be mobilised by the European Parliament and the Council in the framework of the budgetary procedure set out in Article 314 TFEU.
Flexibility Instrument
12.  The Commission shall make a proposal for the mobilisation of the Flexibility Instrument after it has exhausted the margins of the relevant headings.
The proposal shall identify the needs to be covered and the amount.
The Flexibility Instrument may be mobilised by the European Parliament and the Council in the framework of the budgetary procedure set out in Article 314 TFEU.
Modification 55
Proposal for an Interinstitutional Agreement
Part I
Section B – point 13
13.  The mobilisation of the Contingency Margin, or part thereof, shall be proposed by the Commission after a thorough analysis of all other financial possibilities. Such a proposal may be made in relation to a draft budget or draft amending budget.
The Contingency Margin may be mobilised by the European Parliament and the Council in the framework of the budgetary procedure set out in Article 314 TFEU.
13.  The mobilisation of the Contingency Margin, or part thereof, shall be proposed by the Commission after a thorough analysis of all other financial possibilities.
The Contingency Margin may be mobilised by the European Parliament and the Council in the framework of the budgetary procedure set out in Article 314 TFEU.
Modification 56
Proposal for an Interinstitutional Agreement
Part II
Section A – point 14 a (new)
14a.  In order to facilitate the adoption of a new MFF or a revision thereof, and to give effect to Article 312(5) TFEU, the institutions shall convene regular meetings, namely:
—  Meetings of the Presidents as set out in Article 324 of the Treaty;
—  Briefings and debriefings of a delegation of the European Parliament by the Council presidency before and after relevant Council meetings;
—  Informal trilateral meetings in the course of the Council proceedings aimed at taking account of Parliament’s views in any document produced by the Council presidency;
—  Trilogues once both Parliament and the Council have adopted their respective negotiating mandates;
—  Mutual appearances by the Council presidency in the relevant parliamentary committee and of Parliament’s negotiating team in the relevant Council formation.
Parliament and the Council will transmit to each other as soon as available any document formally adopted in their respective preparatory bodies or formally submitted on their behalf.
Modification 57
Proposal for an Interinstitutional Agreement
Part II
Section B – point 15 - indent 2
—  the revenue, expenditure, assets and liabilities of the European Development Fund (EDF), the European Financial Stability Facility (EFSF), the European Stability Mechanism (ESM), and other possible future mechanisms,
—  the revenue, expenditure, assets and liabilities of the European Development Fund (EDF), the European Financial Stability Facility (EFSF), the European Stability Mechanism (ESM), and other possible future mechanisms which are not financed through the Union budget, but which exist to support Union policy objectives deriving from the Treaties,
Modification 58
Proposal for an Interinstitutional Agreement
Part II
Section B – point 15 a (new)
15 a.  When adopting autonomous transfers pursuant to Article 30(1) of the Financial Regulation, the Commission shall immediately inform the budgetary authority of the detailed grounds for such transfers. When Parliament or the Council express a reservation on an autonomous transfer, the Commission shall address it, including, if appropriate, by reversing the transfer.
Modification 59
Proposal for an Interinstitutional Agreement
Part III
Section A – point 24 a (new)
24 a.  When, in the framework of the budgetary procedure, the budgetary authority decides on specific reinforcements, the Commission shall not offset any of them in the subsequent years of its financial programming, unless specifically instructed to do so by the former.
Modification 60
Proposal for an Interinstitutional Agreement
Annex
Part A - point 1 a (new)
1 a.  Each institution undertakes to refrain from transmitting to the other institutions any non-urgent budgetary positions, transfers or other notifications entailing the activation of deadlines during their recess periods, so as to ensure that each institution is able to duly exercise its procedural prerogatives.
The services of the institutions shall inform each other in due time of the dates of recess of their respective institutions.
Modification 61
Proposal for an Interinstitutional Agreement
Annex
Part B - point 2
2.  In due time before the adoption of the draft budget by the Commission, a trilogue shall be convened to discuss the possible priorities for the budget of the coming financial year.
2.  In due time before the adoption of the draft budget by the Commission, a trilogue shall be convened to discuss the possible priorities for the budget of the coming financial year and any questions arising from the implementation of the budget of the ongoing financial year.
Modification 62
Proposal for an Interinstitutional Agreement
Annex
Part C – point 8
8.  In the interest of loyal and sound institutional cooperation, the European Parliament and the Council commit to maintaining regular and active contacts at all levels, through their respective negotiators, throughout the whole budgetary procedure and, in particular, during the conciliation period. The European Parliament and the Council undertake to ensure the timely and constant mutual exchange of relevant information and documents at both formal and informal levels, as well as to hold technical or informal meetings as needed, during the conciliation period, in cooperation with the Commission. The Commission shall ensure timely and equal access to information and documents for the European Parliament and the Council.
8.  In the interest of loyal and sound institutional cooperation, the European Parliament and the Council commit to maintaining regular and active contacts at all levels, through their respective negotiators, throughout the whole budgetary procedure and, in particular, during the conciliation period. The European Parliament and the Council undertake to ensure the timely and constant mutual exchange of relevant information and documents at both formal and informal levels, in particular by transmitting to each other all procedural documents adopted within their respective preparatory bodies as soon as available. They undertake, furthermore, to hold technical or informal meetings as needed, during the conciliation period, in cooperation with the Commission. The Commission shall ensure timely and equal access to information and documents for the European Parliament and the Council.
Modification 63
Proposal for an Interinstitutional Agreement
Annex
Part D – point 12 a (new)
12a.   The European Parliament and the Council shall meet in public when adopting their respective positions on the draft budget.
Modification 64
Proposal for an Interinstitutional Agreement
Annex
Part E - point 15
15.  The European Parliament and the Council shall be represented at an appropriate level in the Conciliation Committee, such that each delegation can commit politically its respective institution, and that actual progress towards the final agreement may be made.
15.  Both the European Parliament and the Council shall be represented by members of the respective institution in the Conciliation Committee, so that each delegation can commit its respective institution politically, and that actual progress towards the final agreement may be made.
Modification 65
Proposal for an Interinstitutional Agreement
Annex
Part E - point 19
19.  The dates of the meetings of the Conciliation Committee and the trilogues shall be set in advance by agreement of the three institutions.
19.  The dates of the meetings of the Conciliation Committee and the trilogues shall be set in advance by agreement of the three institutions. Additional meetings, including at technical level, may be organised, as required, during the conciliation period.
Modification 66
Proposal for an Interinstitutional Agreement
Annex
Part E – point 21 a (new)
21a.   In order to make full use of the 21-day conciliation period stipulated by the Treaty and to allow the institutions to update their respective negotiating positions, the European Parliament and the Council undertake to examine the state of play of the conciliation procedure at every meeting of their relevant preparatory bodies throughout the aforementioned period, and shall refrain from leaving it to its last stages.
Modification 67
Proposal for an Interinstitutional Agreement
Annex
Part G - title
Part G. Reste à liquider (RAL)
Part G. Budget implementation, payments and Reste à liquider (RAL)
Modification 68
Proposal for an Interinstitutional Agreement
Annex
Part G - point 36
36.  Given the need to ensure an orderly progression of the total appropriations for payments in relation to the appropriations for commitments so as to avoid any abnormal shift of RAL from one year to another, the European Parliament, the Council and the Commission agree to monitor closely the level of the RAL so as to mitigate the risk of hampering the implementation of Union programmes because of a lack of payment appropriations at the end of the MFF.
In order to ensure a manageable level and profile for the payments in all headings, de-commitment rules shall be applied strictly in all headings, in particular the rules for automatic de-commitments.
In the course of the budgetary procedure, the institutions shall meet regularly with a view to jointly assessing the state of play and the outlook for budgetary implementation in the current and future years. This shall take the form of dedicated interinstitutional meetings at the appropriate level, before which the Commission shall provide the detailed state of play, broken down by fund and Member State, on payment implementation, reimbursement claims received and revised forecasts. In particular, in order to ensure that the Union can fulfill all its financial obligations stemming from existing and future commitments in the period 2021 to 2027 in accordance with Article 323 TFEU, the European Parliament and the Council shall analyse and discuss the Commission’s estimates as to the required level of payment appropriations.
36.  Given the need to ensure an orderly progression of the total appropriations for payments in relation to the appropriations for commitments so as to avoid any abnormal shift of RAL from one year to another, the European Parliament, the Council and the Commission agree to monitor closely the payment forecasts and the level of the RAL so as to mitigate the risk of hampering the implementation of Union programmes because of a lack of payment appropriations at the end of the MFF.
In the course of the budgetary procedure, the institutions shall meet regularly with a view to jointly assessing the state of play and the outlook for budgetary implementation in the current and future years. This shall take the form of dedicated interinstitutional meetings at the appropriate level, before which the Commission shall provide the detailed state of play, broken down by fund and Member State, on payment implementation, reimbursement claims received and revised short-to-long-term forecasts. In particular, in order to ensure that the Union can fulfil all its financial obligations stemming from existing and future commitments in the period 2021 to 2027 in accordance with Article 323 TFEU, the European Parliament and the Council shall analyse and discuss the Commission’s estimates as to the required level of payment appropriations.

53.Instructs its President to forward this resolution to the Council and the Commission.

Annex I – MFF 2021-2027: ceilings and instruments outside the ceilings (2018 prices)

(EUR million – 2018 prices)

 

Commission proposal

Parliament position

Commitment appropriations

Total

2021-2027

2021

2022

2023

2024

2025

2026

2027

Total

2021-2027

I.  Single Market, Innovation and Digital

166 303

31 035

31 006

31 297

30 725

30 615

30 757

30 574

216 010

II.  Cohesion and Values

391 974

60 026

62 887

64 979

65 785

66 686

69 204

67 974

457 540

Of which: Economic, social and territorial cohesion

330 642

52 143

52 707

53 346

53 988

54 632

55 286

55 994

378 097

III.  Natural Resources and Environment

336 623

57 780

57 781

57 789

57 806

57 826

57 854

57 881

404 718

IV.  Migration and Border Management

30 829

3 227

4 389

4 605

4 844

4 926

5 066

5 138

32 194

V.  Security and Defence

24 323

3 202

3 275

3 223

3 324

3 561

3 789

4 265

24 639

VI.  Neighbourhood and the World

108 929

15 368

15 436

15 616

15 915

16 356

16 966

17 729

113 386

VII.  European Public Administration

75 602

10 388

10 518

10 705

10 864

10 910

11 052

11 165

75 602

Of which: Administrative expenditure of the institutions

58 547

8 128

8 201

8 330

8 432

8 412

8 493

8 551

58 547

TOTAL COMMITMENT APPROPRIATIONS

1 134 583

181 025

185 293

188 215

189 262

190 880

194 688

194 727

1 324 089

as a percentage of GNI

1.11  %

1.29  %

1.31  %

1.31  %

1.30  %

1.30  %

1.31  %

1.29  %

1.30  %

TOTAL PAYMENT APPROPRIATIONS

1 104 805

174 088

176 309

186 391

187 490

188 675

189 961

191 398

1 294 311

as a percentage of GNI

1.08  %

1.24  %

1.24  %

1.30  %

1.29  %

1.28  %

1.28  %

1.27  %

1.27  %

OUTSIDE THE MFF CEILINGS

 

 

 

 

 

 

 

 

 

Emergency aid reserve

4 200

1 000

1 000

1 000

1 000

1 000

1 000

1 000

7 000

European Globalisation Adjustment Fund (EGF)

1 400

200

200

200

200

200

200

200

1 400

European Union Solidarity Fund (EUSF)

4 200

1 000

1 000

1 000

1 000

1 000

1 000

1 000

7 000

Flexibility Instrument

7 000

2 000

2 000

2 000

2 000

2 000

2 000

2 000

14 000

European Investment Stabilisation Function

p.m.

p.m.

p.m.

p.m.

p.m.

p.m.

p.m.

p.m.

p.m.

European Peace Facility

9 223

753

970

1 177

1 376

1 567

1 707

1 673

9 223

TOTAL OUTSIDE THE MFF CEILINGS

26 023

4 953

5 170

5 377

5 576

5 767

5 907

5 873

38 623

TOTAL MFF + OUTSIDE THE MFF CEILINGS

1 160 606

185 978

190 463

193 592

194 838

196 647

200 595

200 600

1 362 712

as a percentage of GNI

1.14  %

1.32  %

1.34  %

1.35  %

1.34  %

1.34  %

1.35  %

1.33  %

1.34  %

Annex II – MFF 2021-2027: ceilings and instruments outside the ceilings (current prices)

(EUR million – current prices)

 

Commission proposal

Parliament position

Commitment appropriations

Total

2021-2027

2021

2022

2023

2024

2025

2026

2027

Total

2021-2027

I.  Single Market, Innovation and Digital

187 370

32 935

33 562

34 555

34 601

35 167

36 037

36 539

243 395

II.  Cohesion and Values

442 412

63 700

68 071

71 742

74 084

76 601

81 084

81 235

516 517

Of which: Economic, social and territorial cohesion

373 000

55 335

57 052

58 899

60 799

62 756

64 776

66 918

426 534

III.  Natural Resources and Environment

378 920

61 316

62 544

63 804

65 099

66 424

67 785

69 174

456 146

IV.  Migration and Border Management

34 902

3 425

4 751

5 084

5 455

5 658

5 936

6 140

36 448

V.  Security and Defence

27 515

3 397

3 545

3 559

3 743

4 091

4 439

5 098

27 872

VI.  Neighbourhood and the World

123 002

16 308

16 709

17 242

17 923

18 788

19 878

21 188

128 036

VII.  European Public Administration

85 287

11 024

11 385

11 819

12 235

12 532

12 949

13 343

85 287

Of which: Administrative expenditure of the institutions

66 028

8 625

8 877

9 197

9 496

9 663

9 951

10 219

66 028

TOTAL COMMITMENT APPROPRIATIONS

1 279 408

192 105

200 567

207 804

213 140

219 261

228 107

232 717

1 493 701

as a percentage of GNI

1.11  %

1.29  %

1.31  %

1.31  %

1.30  %

1.30  %

1.31  %

1.29  %

1.30  %

TOTAL PAYMENT APPROPRIATIONS

1 246 263

184 743

190 843

205 790

211 144

216 728

222 569

228 739

1 460 556

as a percentage of GNI

1.08  %

1.24  %

1.24  %

1.30  %

1.29  %

1.28  %

1.28  %

1.27  %

1.27  %

OUTSIDE THE MFF CEILINGS

 

 

 

 

 

 

 

 

 

Emergency aid reserve

4 734

1 061

1 082

1 104

1 126

1 149

1 172

1 195

7 889

European Globalisation Adjustment Fund (EGF)

1 578

212

216

221

225

230

234

239

1 578

European Union Solidarity Fund (EUSF)

4 734

1 061

1 082

1 104

1 126

1 149

1 172

1 195

7 889

Flexibility Instrument

7 889

2 122

2 165

2 208

2 252

2 297

2 343

2 390

15 779

European Investment Stabilisation Function

p.m.

p.m.

p.m.

p.m.

p.m.

p.m.

p.m.

p.m.

p.m.

European Peace Facility

10 500

800

1 050

1 300

1 550

1 800

2 000

2 000

10 500

TOTAL OUTSIDE THE MFF CEILINGS

29 434

5 256

5 596

5 937

6 279

6 624

6 921

7 019

43 633

TOTAL MFF + OUTSIDE THE MFF CEILINGS

1 308 843

197 361

206 163

213 741

219 419

225 885

235 028

239 736

1 537 334

as a percentage of GNI

1,14 %

1,32 %

1,34 %

1,35 %

1,34 %

1,34 %

1,35 %

1,33 %

1,34 %

Annex III – MFF 2021-2027: breakdown per programme (2018 prices)

N.B.: For the purpose of comparison, the table follows the structure of the individual EU programmes as proposed by the Commission, without any prejudice to possible changes that may be requested during the legislative procedure leading to the adoption of these programmes.

(EUR million – 2018 prices)

 

2014-2020 MFF (EU27+EDF)

Commission proposal 2021-2027

Parliament position

2021-2027

I.  Single Market, Innovation and Digital

116 361

166 303

216 010

1.  Research and Innovation

69 787

91 028

127 537

Horizon Europe

64 674

83 491

120 000

Euratom Research and Training Programme

2 119

2 129

2 129

International Thermonuclear Experimental Reactor (ITER)

2 992

5 406

5 406

Other

2

2

2

2.  European Strategic Investments

31 886

44 375

51 798

InvestEU Fund

3 968

13 065

14 065

Connecting Europe Facility (total H1 contribution)

including:

17 579

21 721

28 083

Connecting Europe Facility – Transport

12 393

11 384

17 746

Connecting Europe Facility – Energy

4 185

7 675

7 675

Connecting Europe Facility–- Digital

1 001

2 662

2 662

Digital Europe Programme

172

8 192

8 192

Other

9 097

177

177

Decentralised agencies

1 069

1 220

1 281

3.  Single Market

5 100

5 672

8 423

Single Market Programme (incl. COSME)

3 547

3 630

5 823

EU Anti-Fraud Programme

156

161

322

Cooperation in the field of taxation (FISCALIS)

226

239

300

Cooperation in the field of customs (CUSTOMS)

536

843

843

Sustainable Tourism

 

 

300

Other

61

87

87

Decentralised agencies

575

714

748

4.  Space

11 502

14 404

15 225

European Space Programme

11 308

14 196

15 017

Decentralised agencies

194

208

208

Margin

-1 913

10 824

13 026

II.  Cohesion and Values

387 250

391 974

457 540

5.  Regional Development and Cohesion

272 647

242 209

272 647

ERDF + Cohesion Fund

including:

272 411

241 996

272 411

European Regional Development Fund

196 564

200 622

 

Cohesion Fund

75 848

41 374

 

Of which contribution to the Connecting Europe Facility – Transport

11 487

10 000

 

Support to the Turkish-Cypriot Community

236

213

236

6.  Economic and Monetary Union

273

22 281

22 281

Reform Support Programme

185

22 181

22 181

Protection of the Euro Against Counterfeiting

7

7

7

Other

81

93

93

7.  Investing in People, Social Cohesion and Values

115 729

123 466

157 612

European Social Fund+ (including EUR 5.9 billion for a Child Guarantee)

96 216

89 688

106 781

Of which health, employment and social innovation

1 075

1 042

1 095

Erasmus+

13 699

26 368

41 097

European Solidarity Corps

373

1 113

1 113

Creative Europe

1 403

1 642

2 806

Justice

316

271

316

Rights and values, including at least EUR 500 million for a Union values strand

594

570

1 627

Other

1 158

1 185

1 185

Decentralised agencies

1 971

2 629

2 687

Margin

-1 399

4 018

4 999

III.  Natural Resources and Environment

399 608

336 623

404 718

8.  Agriculture and Maritime Policy

390 155

330 724

391 198

EAGF + EAFRD

including:

382 855

324 284

383 255

European Agricultural Guarantee Fund (EAGF)

286 143

254 247

 

European Agricultural Fund for Rural Development (EAFRD)

96 712

70 037

 

European Maritime and Fisheries Fund

6 243

5 448

6 867

Other

962

878

962

Decentralised agencies

95

113

113

9.  Environment and Climate Action

3 492

5 085

11 520

Programme for Environment and Climate Action (LIFE)

3 221

4 828

6 442

Just Energy Transition Fund

 

 

4 800

Decentralised agencies

272

257

278

Margin

5 960

814

1 999

IV.  Migration and Border Management

10 051

30 829

32 194

10.  Migration

7 180

9 972

10 314

Asylum and Migration Fund

6 745

9 205

9 205

Decentralised agencies*

435

768

1 109

11.  Border Management

5 492

18 824

19 848

Integrated Border Management Fund

2 773

8 237

8 237

Decentralised agencies*

2 720

10 587

11 611

Margin

-2 621

2 033

2 033

V.  Security and Defence

1 964

24 323

24 639

12.  Security

3 455

4 255

4 571

Internal Security Fund

1 200

2 210

2 210

Nuclear Decommissioning

including:

1 359

1 045

1 359

Nuclear Decommissioning (Lithuania)

459

490

692

Nuclear safety and decommissioning (incl. for Bulgaria and Slovakia)

900

555

667

Decentralised agencies

896

1 001

1 002

13.  Defence

575

17 220

17 220

European Defence Fund

575

11 453

11 453

Military Mobility

0

5 767

5 767

14.  Crisis Response

1 222

1 242

1 242

Union Civil Protection Mechanism (rescEU)

560

1 242

1 242

Other

662

p.m.  

p.m.

Margin

-3 289

1 606

1 606

VI.  Neighbourhood and the World

96 295

108 929

113 386

15.  External Action

85 313

93 150

96 809

Instrument(s) in support of neighbourhood and development policies, including the EDF successor and an investment plan for Africa

71 767

79 216

82 716

Humanitarian Aid

8 729

9 760

9 760

Common Foreign and Security Policy (CFSP)

2 101

2 649

2 649

Overseas Countries and Territories (including Greenland)

594

444

594

Other

801

949

949

Decentralised agencies

144

132

141

16.  Pre-accession assistance

13 010

12 865

13 010

Pre-Accession Assistance

13 010

12 865

13 010

Margin

-2 027

2 913

3 567

VII.  European Public Administration

70 791

75 602

75 602

European Schools and Pensions

14 047

17 055

17 055

Administrative expenditure of the institutions

56 744

58 547

58 547

TOTAL

1 082 320

1 134 583

1 324 089

In % GNI (EU-27)

1.16  %

1.11  %

1.30  %

* The EP amount for decentralised agencies in clusters 10 and 11 includes the financial impact of the Commission proposals of 12 September 2018 on EASO and the European Border and Coast Guard.

Annex IV - MFF 2021-2027: breakdown per programme (current prices)

(EUR million – current prices)

 

2014-2020 MFF (EU27+EDF)

Commission proposal 2021-2027

Parliament position

2021-2027

I.  Single Market, Innovation and Digital

114 538

187 370

243 395

1.  Research and Innovation

68 675

102 573

143 721

Horizon Europe

63 679

94 100

135 248

Euratom Research and Training Programme

2 085

2 400

2 400

International Thermonuclear Experimental Reactor (ITER)

2 910

6 070

6 070

Other

1

3

3

2.  European Strategic Investments

31 439

49 973

58 340

InvestEU Fund

3 909

14 725

15 852

Connecting Europe Facility (total H1 contribution)

including:

17 435

24 480

31 651

Connecting Europe Facility – Transport

12 281

12 830

20 001

Connecting Europe Facility–- Energy

4 163

8 650

8 650

Connecting Europe Facility – Digital

991

3 000

3 000

Digital Europe Programme

169

9 194

9 194

Other

8 872

200

200

Decentralised agencies

1 053

1 374

1 444

3.  Single Market

5 017

6 391

9 494

Single Market Programme (incl. COSME)

3 485

4 089

6 563

EU Anti-Fraud Programme

153

181

363

Cooperation in the field of taxation (FISCALIS)

222

270

339

Cooperation in the field of customs (CUSTOMS)

526

950

950

Sustainable Tourism

 

 

338

Other

59

98

98

Decentralised agencies

572

804

843

4.  Space

11 274

16 235

17 160

European Space Programme

11 084

16 000

16 925

Decentralised agencies

190

235

235

Margin

-1 866

12 198

14 680

II.  Cohesion and Values

380 738

442 412

516 517

5.  Regional Development and Cohesion

268 218

273 240

307 578

ERDF + Cohesion Fund

including:

267 987

273 000

307 312

European Regional Development Fund

193 398

226 308

 

Cohesion Fund

74 589

46 692

 

Of which contribution to the Connecting Europe Facility – Transport

11 306

11 285

 

Support to the Turkish-Cypriot Community

231

240

266

6.  Economic and Monetary Union

275

25 113

25 113

Reform Support Programme

188

25 000

25 000

Protection of the Euro Against Counterfeiting

7

8

8

Other

79

105

105

7.  Investing in People, Social Cohesion and Values

113 636

139 530

178 192

European Social Fund+ (including EUR 5.9 billion in 2018 prices for a Child Guarantee)

94 382

101 174

120 457

Of which health, employment and social innovation

1 055

1 174

1 234

Erasmus+

13 536

30 000

46 758

European Solidarity Corps

378

1 260

1 260

Creative Europe

1 381

1 850

3 162

Justice

 

305

356

Rights and values, including at least EUR 500 million in 2018 prices for a Union values strand

 

642

1 834

Other

1 131

1 334

1 334

Decentralised agencies

1 936

2 965

3 030

Margin

-1 391

4 528

5 634

III.  Natural Resources and Environment

391 849

378 920

456 146

8.  Agriculture and Maritime Policy

382 608

372 264

440 898

EAGF + EAFRD

including:

375 429

365 006

431 946

European Agricultural Guarantee Fund (EAGF)

280 351

286 195

 

European Agricultural Fund for Rural Development (EAFRD)

95 078

78 811

 

European Maritime and Fisheries Fund

6 139

6 140

7 739

Other

946

990

1 085

Decentralised agencies

94

128

128

9.  Environment and Climate Action

3 437

5 739

12 995

Programme for Environment and Climate Action (LIFE)

3 170

5 450

7 272

Just Energy Transition Fund

 

 

5 410

Decentralised agencies

267

289

313

Margin

5 804

918

2 254

IV.  Migration and Border Management

9 929

34 902

36 448

10.  Migration

7 085

11 280

11 665

Asylum and Migration Fund

6 650

10 415

10 415

Decentralised agencies*

435

865

1 250

11.  Border Management

5 439

21 331

22 493

Integrated Border Management Fund

2 734

9 318

9 318

Decentralised agencies*

2 704

12 013

13 175

Margin

-2 595

2 291

2 291

V.  Security and Defence

1 941

27 515

27 872

12.  Security

3 394

4 806

5 162

Internal Security Fund

1 179

2 500

2 500

Nuclear Decommissioning

including:

1 334

1 178

1 533

Nuclear Decommissioning (Lithuania)

451

552

780

Nuclear safety and decommissioning (incl. for Bulgaria and Slovakia)

883

626

753

Decentralised agencies

882

1 128

1 129

13.  Defence

590

19 500

19 500

European Defence Fund

590

13 000

13 000

Military Mobility

0

6 500

6 500

14.  Crisis Response

1 209

1 400

1 400

Union Civil Protection Mechanism (rescEU)

561

1 400

1 400

Other

648

p.m.

p.m

Margin

-3 253

1 809

1 809

VI.  Neighbourhood and the World

93 381

123 002

128 036

15.  External Action

82 569

105 219

109 352

Instrument(s) in support of neighbourhood and development policies, including the EDF successor and an investment plan for Africa

70 428

89 500

93 454

Humanitarian Aid

8 561

11 000

11 000

Common Foreign and Security Policy (CFSP)

2 066

3 000

3 000

Overseas Countries and Territories (including Greenland)

582

500

669

Other

790

1 070

1 070

Decentralised agencies

141

149

159

16.  Pre-accession assistance

12 799

14 500

14 663

Pre-Accession Assistance

12 799

14 500

14 663

Margin

-1 987

3 283

4 020

VII.  European Public Administration

69 584

85 287

85 287

European Schools and Pensions

13 823

19 259

19 259

Administrative expenditure of the institutions

55 761

66 028

66 028

TOTAL

1 061 960

1 279 408

1 493 701

In % GNI (EU-27)

1.16  %

1.11  %

1.30  %

* The EP amount for decentralised agencies in clusters 10 and 11 includes the financial impact of the Commission proposals of 12 September 2018 on EASO and the European Border and Coast Guard.

(1) Texts adopted, P8_TA(2018)0075 and P8_TA(2018)0076.
(2) Texts adopted, P8_TA(2018)0226.
(3) OJ C 215, 19.6.2018, p. 249.
(4) OJ L 282, 19.10.2016, p. 1.
(5) OJ C 242, 10.7.2018, p. 24.


State aid rules: new categories of State aid *
PDF 238kWORD 41k
European Parliament legislative resolution of 14 November 2018 on the proposal for a Council regulation amending Council Regulation (EU) 2015/1588 of 13 July 2015 on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to certain categories of horizontal State aid (COM(2018)0398 – C8-0316/2018 – 2018/0222(NLE))
P8_TA-PROV(2018)0450A8-0315/2018

(Consultation)

The European Parliament,

–  having regard to the Commission proposal to the Council (COM(2018)0398),

–  having regard to Article 109 of the Treaty on the Functioning of the European Union, pursuant to which the Council consulted Parliament (C8‑0316/2018),

–  having regard to Rule 78c of its Rules of Procedure,

–  having regard to the report of the Committee on Economic and Monetary Affairs (A8-0315/2018),

1.  Approves the Commission proposal;

2.  Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

3.  Asks the Council to consult Parliament again if it intends to substantially amend the text approved by Parliament;

4.  Instructs its President to forward its position to the Council and the Commission.


Arms export: implementation of Common Position 2008/944/CFSP
PDF 280kWORD 60k
European Parliament resolution of 14 November 2018 on arms exports: implementation of Common Position 2008/944/CFSP (2018/2157(INI))
P8_TA-PROV(2018)0451A8-0335/2018

The European Parliament,

–  having regard to the principles enshrined in Article 21 of the Treaty on European Union (TEU), notably the promotion of democracy and the rule of law and the preservation of peace, the prevention of conflicts and the strengthening of international security,

–  having regard to Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment(1) ( the Common Position),

–  having regard to the Nineteenth Annual Report(2) drawn up in accordance with Article 8(2) of the Common Position,

–  having regard to Council Decision 2018/101/CFSP of 22 January 2018 on the promotion of effective arms export controls(3) and Council Decision 2017/915/CFSP of 29 May 2017 on Union outreach activities in support of the implementation of the Arms Trade Treaty(4),

–  having regard to the updated Common Military List of the European Union, adopted by the Council on 26 February 2018(5),

–  having regard to the User’s Guide to the Common Position defining common rules governing the control of exports of military technology and equipment,

–  having regard to the Wassenaar Arrangement of 12 May 1996 on Export Controls for Conventional Arms and Dual-Use Goods and Technologies, together with the lists, updated in December 2017, of these goods and technologies and munitions(6),

–  having regard to the EU Strategic Framework and Action Plan on Human Rights and Democracy of 25 June 2012, in particular Outcome 11(e) of the action plan, and to the EU Action Plan on Human Rights and Democracy (2015-2019) of 20 July 2015, in particular Objective 21(d) thereof,

–  having regard to the Arms Trade Treaty (ATT) adopted by the UN General Assembly on 2 April 2013(7), which entered into force on 24 December 2014,

–  having regard to Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defence-related products within the Community(8),

–  having regard to Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items(9), as amended by Regulation (EU) No 599/2014 of 16 April 2014, and to the list of dual-use goods and technology in Annex I thereto (the Dual-Use Regulation),

–  having regard to the UN Sustainable Development Goals, in particular Goal 16 promoting just, peaceful and inclusive societies for sustainable development,

–  having regard to the UN Disarmament Agenda ('Securing our Common Future'),

–  having regard to Regulation (EU) 2016/2134 of the European Parliament and of the Council of 23 November 2016 amending Council Regulation (EC) 1236/2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment(10),

–  having regard to the Report of the Office of the United Nations High Commissioner for Human Rights to the Human Rights Council on the impact of arms transfers on the enjoyment of human rights(11),

–  having regard to its previous resolutions on the matter, in particular those of 13 September 2017(12) and of 17 December 2015(13) on the implementation of the Common Position,

–  having regard to the proposal for a regulation of the European Parliament and of the Council establishing the European Defence Industrial Development Programme aiming at supporting the competitiveness and innovative capacity of the EU defence industry (EDIDP) (COM(2017)0294) and the proposal for a regulation establishing the European Defence Fund (COM(2018)0476),

–  having regard to its resolutions on the humanitarian situation in Yemen of 25 February 2016(14), 15 June 2017(15) and 30 November 2017(16),

–  having regard to its resolution of 27 February 2014 on the use of armed drones(17),

–  having regard to the Human Rights Council report of 17 August 2018 on the situation of human rights in Yemen, including violations and abuses since September 2014 (A/HRC/39/43),

–  having regard to Rules 52 and 132(2) of its Rules of Procedure,

–  having regard to the report of the Committee on Foreign Affairs (A8-0335/2018),

A.  whereas the inherent right of individual or collective self-defence is laid down in Article 51 of the Charter of the United Nations;

B.  whereas arms exports and transfers have an undeniable impact on human rights and human security, on socio-economic development and on democracy; whereas arms exports also contribute to circumstances that force people to flee from their countries; whereas these are strong reasons for establishing a strict, transparent, effective and commonly accepted and defined arms control system;

C.  whereas the Council Common Position 2008/944/CFSP is a legally binding framework laying down eight criteria; whereas wherever these are not met the issuance of an export licence should be denied (criteria 1-4) or consideration should at least be given to doing so (criteria 5-8); whereas the decision to transfer or deny the transfer of any military technology or equipment remains at the national discretion of each Member State in accordance with Article 4(2) of the Common Position;

D.  whereas the latest figures(18) show that arms exports from the EU-28 amounted to over 27 % of the global total in 2013-2017, which would make the EU collectively the second largest arms supplier in the world after the US (34 %), with Russia following at 22 %; whereas the years 2015 and 2016 showed the highest figures for arms exports licences by value granted since the beginning of EU data collection, with a total value of EUR 195,95 billion in 2015 and, according to the most recent report by the Working Party on Conventional Arms Exports (COARM), EUR 191,45 billion in 2016(19); whereas unfortunately the 2015 and 2016 figures are misleading and inaccurate, as the volume of licences is in part more an expression of intent than a precise figure indicating real exports that may be expected to materialise in the near future;

E.  whereas the COARM annual reports are so far the only instrument whose purpose is to cover the implementation of the Common Position; whereas these reports have helped to make Member States’ arms exports more transparent and the volume of guidelines and clarifications in the User’s Guide has grown considerably; whereas, because of the Common Position, the volume of information on the issuing of arms export licences has increased;

F.  whereas both the global and the regional security environment have dramatically changed, especially with regard to the Union’s southern and eastern neighbourhood, and this highlights the urgent need to improve methodologies with regard to producing information for export licensing risk assessments and to make them more secure;

G.  whereas, under Article 3 of the Common Position, the eight criteria set minimum standards only and are without prejudice to any more restrictive arms control measures which Member States may take; whereas the decision-making process for granting or denying arms export licences lies solely within the remit of Member States;

H.  whereas not all Member States make a full submission to COARM; whereas, because of the differing data collection arrangements and submission procedures of individual Member States and their different interpretation of the eight criteria, data sets are incomplete and vary, and arms export practices diverge widely; points out that information exchange must be compatible with the national laws and administrative procedures in each country;

I.  whereas there is currently no mechanism for standardised, independent verification and reporting of compliance with the eight criteria of the Common Position;

J.  whereas measures on trafficking of small arms and light weapons have been adopted in recent years, with an updated List of Dual-Use Goods and Technologies under the Wassenaar Arrangement; whereas while issues such as control of arms brokering, licensed production outside the EU and end-user control have been put on the agenda and, to some extent, incorporated into the Common Position itself, many products, in particular in the field of dual-use goods, cybertechnology and surveillance, are still not covered by the control system;

K.  whereas the nineteenth annual report reveals that 40,5 % of licences for arms exports were granted to countries in the MENA region, to the value of EUR 77,5 billion, and with Saudi Arabia, Egypt and the United Arab Emirates (UAE) accounting for the bulk of those exports, to the value of EUR 57,9 billion;

L.  whereas, in some cases, the arms exported to certain countries, for example to Saudi Arabia, UAE and members of the Saudi-led coalition, have been used in conflicts such as that in Yemen; whereas such exports clearly violate the Common Position;

M.  whereas the European Parliament resolution of 25 February 2016 on the humanitarian situation in Yemen called on the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy (VP/HR) to launch an initiative to impose an EU arms embargo on Saudi Arabia;

N.  whereas arms licensed for transfer by EU Member States and subsequently used in the current Yemen conflict have had a catastrophic impact on sustainable development in Yemen;

O.  whereas the defence sector has become a focal point of EU policy, with the European Global Strategy (EUGS) stating that 'a sustainable, innovative and competitive European defence industry is essential for Europe’s strategic autonomy and for a credible CSDP’(20); whereas arms exports are key to boosting the industrial and technological basis for European defence, and whereas the priority of the defence industry is to guarantee the security and defence of the EU Member States and contribute to the implementation of the CFSP; whereas the main task of the European Defence Fund and, as a precursor, the EDIDP, which has recently been launched, is to ‘support the competitiveness of Europe’s defence industry’(21);

P.  whereas transparency measures such as the monitoring of arms exports help to boost trust among Member States;

Q.  whereas Article 10 of the Common Position clearly states that compliance with the eight criteria takes precedence over any economic social, commercial or industrial interests of Member States;

Bolstering the Common Position and improving its implementation

1.  Underlines that states have the legitimate right to acquire military technology for the purposes of self-defence; notes that maintaining a defence industry serves as part of the self-defence of the Member States;

2.  Notes that a European defence market serves as an instrument for guaranteeing the security and defence of Member States and Union citizens and contributes to the implementation of the Common Foreign and Security Policy (CFSP) and in particular the Common Security and Defence Policy (CSDP); calls on the Member States to overcome the current lack of efficiency in defence spending due to duplication, fragmentation and lack of interoperability, and to aim for the EU to become a security provider also by better controlling arms exports;

3.  Acknowledges that the EU is the only union of states to have a legally binding framework through which arms export control is being improved, including in crisis regions and countries with a questionable human rights record; welcomes, in this connection, the fact that European and non-European third countries have joined the arms export control system on the basis of the Common Position; also encourages remaining candidate countries, countries in the process of attaining candidate status, or countries otherwise wishing to engage themselves on the path of EU accession, to apply the provisions of the Common Position;

4.  Stresses the urgent need to enhance the role of EU Delegations in assisting Member States and the European External Action Service (EEAS) with their export licensing risk assessments and the implementation of end-user controls, post-shipment controls and on-site inspections;

5.  Notes that the eight criteria are applied and interpreted in different ways by Member States; calls for a uniform, consistent and coordinated application of the eight criteria and full implementation of the Common Position with all its obligations;

6.  Believes that the export licensing risk assessment methodology should incorporate a precautionary principle and that Member States, in addition to assessing whether specific military technology might be used for internal repression or other undesired ends, should also assess risks on the basis of the overall situation in the country of destination, taking account of factors such as the state of democracy and the rule of law and its socio-economic development;

7.  Calls on the Member States and the EEAS, in line with its recommendations of 13 September 2017, to use the current review process to strengthen mechanisms for exchange of information by making available qualitatively and quantitatively better information for export licensing risk assessments, by:

   (a) providing more information on export licences and actual exports shared systematically and in a timely manner, including on end users of concern, cases of diversion, end-user certificates that are forged or otherwise of concern, and suspect brokers or transport companies, in accordance with domestic laws;
   (b) maintaining a list of entities and individuals convicted of violating arms export-related legislation, of cases of identified diversion, and of persons who are known or suspected to be involved in illegal arms trading or in activities that pose a threat to international and national security;
   (c) sharing the best practices adopted for implementing the eight criteria;
   (d) turning the current User’s Guide into an interactive online resource;
   (e) turning the EU Annual Report into an open and public online database by the end of 2019, with the new format to be applied to the 2017 data;
   (f) promoting clear and well-established cooperation procedures between law enforcement agencies and border authorities, based on the exchange of information, in order to strengthen cooperation on security and eradicate illegal arms trading, which poses a risk to the security of the EU and its citizens;

8.  Calls on the Member States and the EEAS to increase the number of personnel working on export-related issues both at national and EU level; encourages the use of EU funds for capacity-building among licensing and enforcement officials in Member States;

9.  Recalls that among the reasons for establishing the Common Position were to prevent European weaponry being used against Member States’ armed forces and to prevent human rights abuses and the prolongation of armed conflict; reiterates that the Common Position sets minimum requirements which Member States have to apply in the field of arms export controls and that it includes the obligation to assess a request for an export licence against all eight criteria listed in it;

10.  Criticises the systematic failure to apply the eight criteria by Member States and the fact that military technology does reach destinations and end users that do not meet the criteria laid down in the Common Position; repeats its call for an independent assessment of Member States' compliance with the eight criteria of the Common Position; takes the view that greater convergence in the application of the eight criteria should be promoted; regrets the lack of provisions on sanctions to be imposed on Member States that fail to check compliance with the eight criteria in advance of granting licences; urges the Member States to improve the consistency of the implementation of the Common Position, and advises them to make provision for arrangements to conduct independent checks;

11.  Believes that exports to Saudi Arabia, the UAE and other members of the Saudi-led coalition in Yemen are non-compliant with at least criterion 2 because of those countries' involvement in grave breaches of humanitarian law as established by competent UN authorities; reiterates its call of 13 September 2017 regarding the urgent need to impose an arms embargo on Saudi Arabia, and calls on the VP/HR and the Council to extend such an embargo to all other members of the Saudi-led coalition in Yemen;

12.  Believes it necessary to launch a process leading to a mechanism which sanctions those Member States which do not comply with the Common Position;

13.  Notes that some Member States have stopped providing arms to Saudi Arabia and other members of the Saudi-led coalition in Yemen because of their actions, while others have continued supplying military technology; congratulates those Member States, such as Germany and the Netherlands, which have changed their practice as regards the Yemen conflict; deeply regrets, however, the fact that other Member States seem not to take into account the behaviour of the country of destination and the end-use of exported arms and ammunition; underlines that this disparity of practice risks undermining the entire European arms control regime;

14.  Is alarmed at the fact that almost all licence requests for exports to specific countries such as Saudi Arabia have been granted even though exports to those countries violate at least criteria 1 to 6 of the Common Position, bearing in mind also that failure to meet criteria 1 to 4 must result in denial of the licence; regrets that almost all licence applications (95 %) for exports to Saudi Arabia have been granted as regards category ML9(22) (vessels of war, which are used to enforce the naval blockade on Yemen), and categories ML10 (aircraft) and ML4 (bombs etc), which have been fundamental to the air campaign, contributing to the deterioration of the humanitarian situation, to the undermining of sustainable development in the entire country, and to the ongoing suffering of the population of Yemen;

15.  Is shocked at the amount of EU-made weapons and ammunition found in the hands of Da’esh in Syria and Iraq; notes the failure of Bulgaria and Romania to effectively apply the Common Position in relation to retransfers that contravene end-user certificates; calls on all Member States to refuse similar transfers in the future, notably to the US and Saudi Arabia, and calls on the EEAS and the Member States, in particular Bulgaria and Romania, to explain, in the context of COARM but also in public before Parliament’s Subcommittee on Security and Defence (SEDE), what steps have been taken on this matter; calls on the EEAS to address the many cases revealed by the recent Conflict Armament Research report, and to explore more effective methods for diversion risk assessment in COARM and other relevant fora, including, in the context of the review process, making it obligatory for Member States to deny an export licence if there is a clear risk that the military technology or equipment to be exported might be diverted; decides to launch an investigation into this matter;

16.  Is concerned that the supply of weapon systems in wartime and in situations of significant political tension may disproportionately affect civilians; underlines that conflicts should be solved by diplomatic means as a priority; calls, therefore, on the Member States to take steps towards a genuine common foreign and security policy;

17.  Recognises that better implementation of criterion 8 would constitute a decisive contribution to the EU’s Policy Coherence on Development objectives and the UN’s Sustainable Development Goals (SDGs), in particular SDG 16.4; calls on the Member States and the EEAS to use the ongoing review process of the Common Position in this respect; recommends updating the User’s Guide in this respect, with a focus not only on the developmental impact of the purchase of arms on the recipient country, but also on the potential harm to development done by the use of arms, including in countries other than the recipient state;

18.  Suggests that ways should be explored for the EU to support compliance by the Member States with the eight criteria of the Common Position, in particular by providing information during the risk assessment phase, checks on the end users, ex ante checks on shipments, and a regularly updated list of the third countries that comply with the criteria of the Common Position;

19.  Notes that the Council is conducting a reassessment of the implementation of the Common Position and the fulfilment of its objectives in 2018; calls for the Common Position to be reviewed in order to determine how it is implemented at national level, including an assessment of the different ways in which it is implemented in states’ laws and regulations, the methods used to assess licence applications and the government agencies and ministries that are involved; stresses, in this connection, that projects funded from the newly launched EDIDP and the future Defence Fund must come under national and EU control and reporting mechanisms/regimes and be subject to full parliamentary scrutiny; believes that the proposed European Peace Facility also needs to be subject to parliamentary scrutiny;

20.  Calls on the Member States to overcome the current lack of efficiency in defence spending due to duplication, fragmentation and lack of interoperability, and to aim for the EU to become a security provider also by better controlling arms exports;

21.  Takes the view that product related actions in relation to small arms and light weapons where they are developed mainly for export purposes should be excluded from Union funding in the context of the upcoming regulation establishing the European Defence Fund (EDF) (COM(2018)0476);

22.  Takes the view that in the context of Brexit it would be important for the United Kingdom to commit to remain bound by the Common Position and to apply its operative provisions as other European third countries do;

23.  Stresses that the ambition to increase the competitiveness of the European defence sector must not undermine the application of the Common Position’s eight criteria, as they take precedence over any economic, commercial, social or industrial interests of Member States;

24.  Considers that the implementation of Directive 2009/43/EC simplifying terms and conditions of transfers of defence-related products within the Community should be consistent with the Common Position, including with regard to spare parts and components; notes that the Common Position is non-restrictive in scope and that, accordingly, the eight criteria also apply to transfers within the EU;

25.  Reiterates the detrimental effect that insufficiently controlled exports of cybersurveillance technologies by EU companies can have on the security of the EU’s digital infrastructure and on respect for human rights; stresses, in this connection, the importance of a rapid, effective and comprehensive update of the EU’s Dual-Use Regulation, recalls Parliament’s position regarding the Commission’s proposal as endorsed by an overwhelming majority in January 2018, and suggests that the Council should establish an ambitious position with a view to enabling the co-legislators to reach an agreement before the end of this legislative term; calls on the Member States, with regard to export controls and applying the eight criteria, to pay greater attention to goods which may be used for both civilian and military purposes, such as surveillance technology, and, similarly, to components that may be used in cyberwarfare or to perpetrate human rights violations; urges the Member States and the Commission to invest sufficient funds in technology and human resources to train individuals in specific cybersecurity programmes; calls on the Member States to promote, at international level, the addition of the goods concerned to control lists (in particular Wassenaar);

26.  Encourages the Member States to undertake a more detailed examination of licensed production by third countries and to ensure stronger safeguards against undesired uses; demands the strict application of the Common Position with regard to licensed production in third countries; calls for limiting licensed production arrangements to countries that are parties or signatories to the ATT, and for those third countries to be obliged to only export equipment produced under licence and explicitly authorised by the original exporting Member State;

27.  Stresses the need to develop an approach for addressing situations where Member States make a different interpretation of the eight criteria of the Common Position for exports of products that are essentially alike, to similar destinations and end users, in order to preserve the level playing field and the EU’s credibility abroad;

28.  Asks the Member States and the EEAS to develop a dedicated strategy in order to provide formal protection for whistleblowers reporting practices by organisations and companies in the weapons industry that breach the criteria and principles set out in the Common Position;

29.  Calls furthermore for the eight criteria to be extended and applied also to the transfer of military, security and police personnel, to arms exports-related services, know-how and training, security technology and to private military and security services;

30.  Calls on the Member States and the EEAS to cooperate closely in order to prevent risks arising from the diverting and stockpiling of weapons, such as illegal arms trafficking and smuggling; stresses the risk of weapons exported to third countries re-entering the EU via arms smuggling and trafficking;

31.  Calls on the Member States and the EEAS to add a new criterion to the Common Position in order to ensure that when granting authorisations due account is taken of the risk of corruption concerning the relevant exports;

COARM annual report

32.  Pays tribute to the efforts of COARM in connection with cooperation, coordination and convergence (with particular reference to the User's Guide for the Common Position), and with bolstering and implementing the Common Position, especially as regards awareness-raising campaigns and approximation or harmonisation processes within the EU and involving third countries;

33.  Regrets the very late publication of the eighteenth annual report for 2015 in March 2017 and of the nineteenth annual report for 2016 in February 2018; calls for a more standardised and timely reporting and submission procedure to be guaranteed by setting a strict deadline for submitting data of no later than January following the year in which the exports took place, and by setting a fixed publication date of no later than March following the export year;

34.  Recalls that according to Article 8(2) of the Common Position all Member States are obliged to report on their arms exports, and urges all Member States to comply fully with their obligations, as set out in the Common Position; stresses that high-quality, disaggregated data on actual deliveries are essential for understanding how the eight criteria are applied;

35.  Criticises the fact that a number of Member States did not make full submissions to the nineteenth annual report on the basis of detailed, country-specific data; is concerned that, as a result, important information is missing from the COARM annual report, which is therefore not up to date or able to present a complete picture of Member States’ export activities; considers that a standardised verification and reporting system should be established to provide more detailed and exhaustive information; reiterates its request that all Member States which have not made full submissions provide additional information regarding their past exports with a view to the next annual report;

36.  Notes that according to the nineteenth annual report, the criteria invoked for denials differed in their application, with criterion 1 being invoked 82 times, criterion 2 119 times, criterion 3 103 times, criterion 4 85 times, criterion 5 8 times, criterion 6 12 times, criterion 7 139 times, and criterion 8 once; notes with concern that the number of denied licences fell in total and also in relative terms (only 0,76 % of licence applications were denied in 2016 compared to almost 1 % in 2015); notes with disappointment the continued failure of the report to include figures on the outcome of consultations regarding denial notifications, and calls on the Member States to include such data in future annual reports;

37.  Suggests that additional information be collected from Member States and published both at national level and in the COARM annual report; also suggests that an overview setting out a trend comparison with previous years, together with aggregated figures, be added to the COARM annual report;

Parliament and civil society

38.  Notes that not all EU national parliaments scrutinise governmental licensing decisions; points to Parliament’s Rules of Procedure, which provide for the possibility of regular responses to the EU Annual Reports on Arms Exports, and calls in this respect for an improvement of the current situation and for a guarantee that Parliament will respond to the annual COARM report with its own annual report, which should be out of quota; calls on national parliaments to exchange any existing best practices in the area of the reporting and supervision of arms exports;

39.  Underscores the important role of national parliaments, the European Parliament, civil society, arms export control authorities and industry associations in both supporting and encouraging the Common Position’s agreed standards at national and EU level and in establishing a transparent, accountable control system; calls, therefore, for a transparent and robust control mechanism which bolsters the role of parliaments and of civil society; encourages national parliaments, civil society and academia to exercise independent scrutiny of the arms trade, and calls on the Member States and the EEAS to support such activities, including by financial means;

40.  Stresses the significance and legitimacy of parliamentary oversight concerning data relating to arms export control and how that control is carried out; calls, in this connection, for provision of the measures, backing and information needed to ensure that the public oversight function can be performed to the full;

41.  Suggests that exports of products financed under the EDIDP and/or the European Defence Fund (EDF) should be listed separately in the data submitted to COARM, in order to ensure a close monitoring of those products which have been financed from the European budget; calls on the Council and Parliament to agree on a detailed interpretation and implementation regime including a supervisory body, a sanctioning body and an ethical committee, to ensure that the criteria of the Common Position are applied at least to the products financed under EDIDP and/or the EDF, in order to ensure equal export frameworks for the countries involved; believes that the common interpretation and implementation should apply prospectively to all arms exports from Member States;

International arms control and disarmament

42.  Points out the EU's ambitions to become a global actor for peace; takes the view that the EU should meet its increased responsibility for peace and security in Europe and the world by means of further improved export control mechanisms and disarmament initiatives, and that, as a responsible global player, it should lead the way, i.e. the EU should play an active role, with Member States doing their utmost to seek a common position in the areas of non-proliferation of arms, global disarmament and arms transfer controls, as well as in enhancing research and development into technologies and processes for conversion from military to civil use structures, and by measures such as granting export advantages for the goods concerned;

43.  Recalls that all the Member States are signatories to the ATT; calls for universalisation of the ATT and for more focus to be placed on those countries that are not signatories; also commends the outreach efforts regarding the ATT and supports its effective implementation;

44.  Encourages Member States to help third countries in the creation, improvement and application of arms checking systems in compliance with the Common Position;

45.  Reiterates its position on lethal autonomous weapon systems (LAWS); calls for a ban on exports of products used in the development and production of such weapon systems;

46.  Points out that an effective international arms control agreement should cover all transfers, including state to state transfers, state to non-state end-user transfers and leases, as well as loans, gifts, aid or any other form of transfer;

o
o   o

47.  Instructs its President to forward this resolution to the Council, the Commission, the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy, the governments and parliaments of the Member States, the Secretary-General of NATO, and the Secretary-General of the United Nations.

(1) OJ L 335, 13.12.2008, p. 99.
(2) OJ C 56, 14.2.2018, p. 1.
(3) OJ L 17, 23.1.2018, p. 40.
(4) OJ L 139, 30.5.2017, p. 38.
(5) OJ C 98, 15.3.2018, p. 1.
(6) http://www.wassenaar.org/control-lists/, ‘List of Dual-Use Goods and Technologies and Munitions List’ under the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies.
(7) Arms Trade Treaty, UN, 13-27217.
(8) OJ L 146, 10.6.2009, p. 1.
(9) OJ L 134, 29.5.2009, p. 1.
(10) OJ L 338, 13.12.2016, p. 1.
(11) A/HRC/35/8.
(12) OJ C 337, 20.9.2018, p.63.
(13) OJ C 399, 24.11.2017, p. 178.
(14) OJ C 35, 31.1.2018, p. 142.
(15) OJ C 331, 18.9.2018, p. 146.
(16) OJ C 356, 4.10.2018, p. 104.
(17) OJ C 285, 29.8.2017, p. 110.
(18) Trends in international arms transfers, 2017 (SIPRI Fact Sheet, March 2018).
(19) http://enaat.org/eu-export-browser/licence.de.html
(20) ‘Shared Vision, Common Action: A Stronger Europe - A Global Strategy for the European Union’s Foreign and. Security Policy’, Brussels, June 2016.
(21) 'Launching the European Defence Fund', COM(2017)0295, 7 June 2017.
(22) http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52016XG0406(01)&from=EN


Empowering competition authorities and ensuring the proper functioning of the internal market ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 14 November 2018 on the proposal for a directive of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (COM(2017)0142 – C8-0119/2017 – 2017/0063(COD))
P8_TA-PROV(2018)0452A8-0057/2018

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2017)0142),

–  having regard to Article 294(2) and Articles 103 and 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8‑0119/2017),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the provisional agreement approved by the committee responsible under Rule 69f(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 20 June 2018 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Economic and Monetary Affairs and the opinion of the Committee on the Internal Market and Consumer Protection (A8-0057/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Takes note of the statement by the Commission annexed to this resolution;

3.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

4.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 14 November 2018 with a view to the adoption of Directive (EU) 2018/… of the European Parliament and of the Council to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market

P8_TC1-COD(2017)0063


(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 103 and 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee(1)

Acting in accordance with the ordinary legislative procedure,(2)

Whereas:

(1)  Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) are a matter of public policy and should be applied effectively throughout the Union to ensure that competition in the internal market is not distorted. Effective enforcement of Articles 101 and 102 TFEU is necessary to ensure fairer and more open competitive markets in the Union, in which undertakings compete more on their merits and without company-erected barriers to market entry, enabling them to generate wealth and create jobs. It protects consumers and undertakings active on the internal market from business practices that keep the prices of goods and services artificially high and enhances their choice of innovative goods and services.

(2)  The public enforcement of Articles 101 and 102 TFEU is carried out by the national competition authorities (NCAs) of the Member States in parallel to the Commission pursuant to Council Regulation (EC) No 1/2003(3). Together, the NCAs and the Commission form a network of public authorities that apply the Union competition rules in close cooperation (the ‘European Competition Network’).

(3)  Article 3(1) of Regulation (EC) No 1/2003 obliges NCAs and national courts to apply Articles 101 and 102 TFEU to agreements, to decisions by associations of undertakings, to concerted practices or to the abuse of a dominant position which are capable of affecting trade between Member States. In practice, most NCAs apply national competition law ▌ in parallel to Articles 101 and 102 TFEU. Therefore, this Directive, the objective of which is to ensure that NCAs have the guarantees of independence, resources, and enforcement and fining powers necessary to apply Articles 101 and 102 TFEU effectively, inevitably has an impact on national competition law ▌when it is applied in parallel by NCAs. Furthermore, the application by the NCAs of national competition law to agreements, to decisions by associations of undertakings or to concerted practices, which may affect trade between Member States, should not lead to a different outcome to the one reached by the NCAs under Union law pursuant to Article 3(2) of Regulation (EC) No 1/2003. Therefore, in such cases of parallel application of national competition law and Union law, it is essential that the NCAs have the same guarantees of independence, resources, and enforcement and fining powers necessary to ensure that a different outcome is not reached.

(4)  Moreover, providing NCAs with the power to obtain all information related to the undertaking subject to the investigation, including in digital form, irrespective of the medium on which it is stored, would also affect the scope of the NCAs’ powers when, at the early stages of their proceedings, they take the relevant investigative measure on the basis of ▌ national competition law ▌ applied in parallel to Articles 101 and 102 TFEU. Providing NCAs with inspection powers of a different scope, depending on whether they will ultimately apply only national competition law ▌ or also apply Articles 101 and 102 TFEU in parallel, would hamper the effectiveness of competition law enforcement in the internal market. Accordingly, the scope of the Directive should cover both the application of Articles 101 and 102 TFEU on a stand-alone basis and the parallel application of national competition law to the same case. As regards the protection of leniency statements and settlement submissions, this Directive should also cover the application of national competition law on a stand-alone basis.

(5)  National law prevents many NCAs from having the necessary guarantees of independence, resources, and enforcement and fining powers to be able to enforce Union competition rules effectively. This undermines their ability to effectively apply Articles 101 and 102 TFEU and to apply national competition law ▌ in parallel to Articles 101 and 102 TFEU . For example, under national law many NCAs do not have effective tools to find evidence of infringements of Articles 101 and 102 TFEU or to fine undertakings which break the law, or do not have adequate human and financial resources and operational independence to apply Articles 101 and 102 TFEU effectively. This is capable of preventing NCAs from taking any action at all or limiting their enforcement actions. The lack of guarantees of independence, resources, and enforcement and fining powers for many NCAs to be able to apply Articles 101 and 102 TFEU effectively means that undertakings engaging in anti-competitive practices might face very different outcomes in proceedings, depending on the Member State in which they are active. They might be subject to no enforcement under Article 101 or 102 TFEU or they might only be subject to ineffective enforcement. For example, in some Member States, undertakings can escape liability for fines simply by restructuring.

(6)  Uneven enforcement of Articles 101 and 102 TFEU, whether applied on a stand-alone basis or in parallel with national competition law, ▌ results in missed opportunities to remove barriers to market entry and to create fairer competitive markets throughout the ▌ Union where undertakings compete on their merits. Undertakings and consumers particularly suffer in those Member States where NCAs are less equipped to be effective enforcers. Undertakings cannot compete on the merits if there are safe havens for anti-competitive practices, for example, because evidence of anti-competitive practices cannot be collected or because undertakings are able to escape liability for fines. Undertakings therefore have a disincentive to enter such markets, to exercise their rights of establishment, and to provide goods and services there. Consumers based in Member States where there is less enforcement miss out on the benefits of effective competition enforcement. Uneven enforcement of Articles 101 and 102 TFEU, whether applied on a stand-alone basis or in parallel with national competition law, ▌ throughout the Union thus distorts competition in the internal market and undermines its proper functioning.

(7)  Gaps and limitations in the tools and guarantees of NCAs undermine the system of parallel powers for the enforcement of Articles 101 and 102 TFEU, which is designed to work as a cohesive whole based on close cooperation within the European Competition Network. This system depends on authorities being able to rely on each other to carry out fact-finding measures on each other's behalf in order to foster cooperation and mutual assistance among the Member States. However, it does not work well when there are still NCAs that do not have adequate fact-finding tools. In other key respects, NCAs are not able to provide each other with mutual assistance. For example, in the majority of Member States, undertakings that operate across borders are able to evade paying fines simply by not having a legal presence in some of the territories of Member States in which they are active. This reduces incentives to comply with Articles 101 and 102 TFEU. The resulting ineffective enforcement distorts competition for law-abiding undertakings and undermines consumer confidence in the internal market, particularly in the digital environment.

(8)  In order to ensure a truly common competition enforcement area in the Union that provides a more even level playing field for undertakings operating in the internal market and reduces unequal conditions for consumers, there is a need to put in place fundamental guarantees of independence, adequate financial, human, technical and technological resources and minimum enforcement and fining powers for applying Articles 101 and 102 TFEU and for applying national competition law ▌in parallel to those Articles so that national administrative competition authorities can be fully effective.

(9)  It is appropriate to base this Directive on the dual legal basis of Articles 103 and 114 TFEU. This is because this Directive covers not only the application of Articles 101 and 102 TFEU and the application of national competition law ▌ in parallel to those Articles, but also covers the gaps and limitations in the tools and guarantees of NCAs needed to apply Articles 101 and 102 TFEU, because such gaps and limitations negatively affect both competition and the proper functioning of the internal market.

(10)  Putting in place fundamental guarantees to ensure that NCAs apply Articles 101 and 102 TFEU uniformly and effectively should be without prejudice to the ability of Member States to maintain or introduce more extensive guarantees of independence and resources for national administrative competition authorities and more detailed rules on the enforcement and fining powers of NCAs. In particular, Member States should be able to endow NCAs with additional powers beyond the core set provided for in this Directive to further enhance their effectiveness, such as powers to impose fines on natural persons or, by way of exception, the power to carry out inspections with the consent of those subject to inspection.

(11)  Conversely, detailed rules are necessary in the area of conditions for granting leniency for secret cartels. Undertakings will only disclose secret cartels in which they have participated if they have sufficient legal certainty that they will benefit from immunity from fines. The marked differences between the leniency programmes in the Member States lead to legal uncertainty for potential leniency applicants. This may weaken their incentives to apply for leniency. If Member States were able to implement or apply clearer and harmonised rules for leniency in the area covered by this Directive, this would not only contribute to the objective of maintaining incentives for applicants to disclose secret cartels, in order to render competition enforcement in the Union as effective as possible, but would also guarantee a level playing field for undertakings operating in the internal market. This should not prevent Member States from applying leniency programmes that cover not only secret cartels, but also other infringements of Article 101 ▌TFEU and equivalent ▌provisions of national competition law, or from accepting leniency applications from natural persons acting in their own name. This Directive should also be without prejudice to leniency programmes that exclusively provide for immunity from sanctions in criminal judicial proceedings for the enforcement of Article 101 TFEU.

(12)  This Directive should not apply to national laws insofar as they provide for the imposition of criminal sanctions on natural persons, with the exception of the rules governing the interplay of leniency programmes with the imposition of sanctions on natural persons. It also should not apply to national laws that provide for the imposition of administrative sanctions on natural persons that do not operate as an independent economic actor on a market.

(13)  Pursuant to Article 35 of Regulation (EC) No 1/2003, Member States can entrust the enforcement of Articles 101 and 102 TFEU exclusively to an administrative authority, as is the case in most jurisdictions, or they can entrust this to both judicial and administrative authorities. In the latter case, the administrative authority is at least primarily responsible for conducting the investigation, while the judicial authority is typically entrusted with the power to take decisions imposing fines and can have the power to take other decisions, such as finding an infringement of Articles 101 and 102 TFEU.

(14)  The exercise of the powers, conferred by this Directive on NCAs, including the investigative powers, should be subject to appropriate safeguards which at least comply with the general principles of Union law and the Charter of Fundamental Rights of the European Union, in accordance with the case law of the Court of Justice of the European Union, in particular in the context of proceedings which could give rise to the imposition of penalties. These safeguards include the right to good administration and the respect of undertakings̕ rights of defence, an essential component of which is the right to be heard. In particular, NCAs should inform the parties under investigation of the preliminary objections raised against them under Article 101 or Article 102 TFEU in the form of a statement of objections or a similar measure prior to taking a decision finding an infringement, and those parties should have an opportunity to make their views on those objections known effectively before such a decision is taken. Parties to whom preliminary objections about an alleged infringement of Article 101 or Article 102 TFEU have been notified should have the right to access the relevant case file of NCAs, to be able to exercise their rights of defence effectively.

The right to access the file should be subject to the legitimate interest of undertakings in the protection of their business secrets and should not extend to confidential information and internal documents of, and correspondence between, the NCAs and the Commission. Moreover, for decisions of NCAs, in particular those decisions finding an infringement of Article 101 or Article 102 TFEU, and imposing remedies or fines, the addressees should have the right to an effective remedy before a tribunal, in accordance with Article 47 of the Charter of Fundamental Rights of the European Union. Such ▌ decisions should be reasoned so as to allow addressees of such decisions to ascertain the reasons for the decision and to exercise their right to an effective remedy. Moreover, in accordance with the right to good administration, Member States should ensure that, when applying Articles 101 and 102 TFEU, NCAs conduct proceedings within a reasonable timeframe, taking into account the specificities of each case. The design of those safeguards should strike a balance between the respect of the fundamental rights of undertakings and the duty to ensure that Articles 101 and 102 TFEU are effectively enforced.

(15)  The exchange of information between NCAs, and the use of such information in evidence for the application of Article 101 or Article 102 TFEU, should be carried out pursuant to Article 12 of Regulation (EC) No 1/2003.

(16)  Empowering national administrative competition authorities to apply Articles 101 and 102 TFEU impartially and in the common interest of the effective enforcement of the Union competition rules is an essential component of the effective and uniform application of those rules.

(17)  The operational independence of national administrative competition authorities should be strengthened in order to ensure the effective and uniform application of Articles 101 and 102 TFEU. To this end, express provision should be made in national law to ensure that when applying Articles 101 and 102 TFEU, national administrative competition authorities are protected against external intervention or political pressure that is liable to jeopardise their independent assessment of the matters before them. For that purpose, the grounds regarding the dismissal from the national administrative competition authority of those persons who take decisions exercising the powers referred to in Articles 10, 11, 12, 13 and 16 of this Directive should be laid down in advance in national law in order to remove any reasonable doubt as to their impartiality ▌and their imperviousness to external factors. Similarly, clear and transparent rules and procedures for the selection, recruitment or appointment of those persons should be laid down in advance in national law. Moreover, to ensure the impartiality of national administrative competition authorities, the fines that they impose for infringements of Articles 101 and 102 TFEU should not be used to finance these authorities directly.

(18)  To ensure the operational independence of national administrative competition authorities, their heads, staff and those who take decisions should act with integrity and refrain from any action which is incompatible with the performance of their duties. To prevent the independent assessment by heads, staff and those who take decisions from being jeopardised, they should refrain from any incompatible actions, whether gainful or not, both during their employment or term of office and for a reasonable period thereafter ▌.

(19)  This means that during their employment or their term of office, the staff and those who take decisions should not be able to deal with proceedings for the application of Article 101 or 102 TFEU in which they have been involved or which directly concern undertakings or associations of undertakings by which they have been employed or otherwise professionally engaged, if this has the potential to compromise their impartiality in a specific case. Similarly, the staff and those who take decisions, as well as their close relatives, should not have any interest in any businesses or organisations which are subject to proceedings for the application of Article 101 or 102 TFEU in which they take part, if this has the potential to compromise their ▌impartiality in a specific case. The assessment of whether their impartiality might be impaired in a specific case should take into account the nature and the magnitude of the interest and the level of involvement or engagement of the individual concerned. Where it is necessary to ensure the impartiality of the investigation and the decision-making process, the individual concerned should be required to recuse herself or himself from the specific case.

(20)  This also means that, for a reasonable period after leaving the national administrative competition authority, whenever former staff or those who took decisions engage in an occupation which is related to the proceedings for the application of Article 101 or 102 TFEU with which they were dealing during their employment or term of office, they should not be involved in the same case in their new occupation.

The length of that period might be determined by taking into account the nature of the new occupation of the individuals concerned as well as the level of their involvement and responsibility in the same proceedings during their employment or term in office in the national administrative competition authority.

(21)  Every national administrative competition authority should publish a code of conduct that, without prejudice to the application of stricter national rules, covers rules on conflicts of interest.

(22)  The operational independence of national administrative competition authorities should not preclude either judicial review or parliamentary supervision in accordance with national law. Accountability requirements should also contribute to ensuring the credibility and the legitimacy of the actions of national administrative competition authorities. Proportionate accountability requirements include the publication by national administrative competition authorities of periodic reports on their activities to a governmental or parliamentary body. National administrative competition authorities might also be subject to control or monitoring of their financial expenditure, provided this does not affect their independence.

(23)  National administrative competition authorities should be able to prioritise their proceedings for the enforcement of Articles 101 and 102 TFEU to make effective use of their resources, and to allow them to focus on preventing and bringing anti-competitive behaviour that distorts competition in the internal market to an end. For this purpose, they should be able to reject complaints on the grounds that they are not a priority, with the exception of complaints lodged by public authorities which share competence with a national administrative competition authority for enforcing Articles 101 and 102 TFEU and national competition law, where applicable. This should be without prejudice to the power of national administrative competition authorities to reject complaints on other grounds, such as a lack of competence, or to decide that there are no grounds for action on their part. In cases of formally filed complaints , such rejections should be subject to effective remedies in accordance with national law. The power of national administrative competition authorities to prioritise their enforcement proceedings is without prejudice to the right of a government of a Member State to issue to national administrative competition authorities general policy rules or priority guidelines that are not related to sector inquiries or specific proceedings for the enforcement of Articles 101 and 102 TFEU.

(24)  NCAs should have sufficient resources, in terms of qualified staff able to conduct proficient legal and economic assessments, financial means, technical and technological expertise and equipment including adequate information technology tools, to ensure they are able to perform their tasks effectively when applying Articles 101 and 102 TFEU. In the event that the duties and powers of NCAs under national law are extended, Member States should ensure that NCAs have sufficient resources to perform those tasks effectively.

(25)  The independence of NCAs should be enhanced by enabling them to decide independently on the spending of the budget allocations for the purpose of carrying out their duties, without prejudice to national budgetary rules and procedures.

(26)  To ensure that national administrative competition authorities have the necessary resources to perform their tasks, different means of financing might be considered, such as financing from alternative sources other than the state budget.

(27)  In order to ensure effective monitoring of the implementation of this Directive, Member States should ensure that national administrative competition authorities submit periodic reports on their activities and resources to a governmental or parliamentary body. Those reports should include information about the appointments and dismissals of members of the decision-making body, the amount of resources that were allocated in the relevant year and any changes in that amount compared to previous years. Such reports should be made publicly available.

(28)  NCAs require a minimum set of common investigative and decision-making powers to be able to effectively enforce Articles 101 and 102 TFEU.

(29)  National administrative competition authorities should have effective powers of investigation to detect any agreement, decision or concerted practice prohibited by Article 101 TFEU or any abuse of a dominant position prohibited by Article 102 TFEU at any stage of the proceedings before them. The national administrative competition authorities should be able to apply those powers to undertakings and associations of undertakings which are the subject of proceedings for the application of Articles 101 and 102 TFEU, as well as to other market players which may be in possession of information which is of relevance to such proceedings. Granting such effective investigative powers to all national administrative competition authorities should ensure that they are in a position to assist each other effectively when requested to carry out an inspection or any other fact-finding measure on their own territory on behalf of and for the account of another NCA pursuant to Article 22 of Regulation (EC) No 1/2003.

(30)  The investigative powers of national administrative competition authorities should be adequate to meet the enforcement challenges of the digital environment, and should enable NCAs to obtain all information related to the undertaking or association of undertakings which is subject to the investigative measure in digital form, including data obtained forensically, irrespective of the medium on which the information is stored, such as on laptops, mobile phones, other mobile devices or cloud storage.

(31)  National administrative competition authorities should be able to carry out all necessary inspections of premises of undertakings and associations of undertakings where, in line with the case law of the Court of Justice of the European Union, they can show that there are reasonable grounds for suspecting an infringement of Article 101 or 102 TFEU. This Directive should not prevent Member States from requiring prior authorisation by a national judicial authority for such inspections.

(32)  To be effective, the power of national administrative competition authorities to carry out inspections should enable them to access information that is accessible to the undertaking or association of undertakings or person subject to the inspection and which is related to the undertaking or the association of undertakings under investigation. This should necessarily include the power to search for documents, files or data on devices which are not precisely identified in advance. Without such power, it would be impossible to obtain the information necessary for the investigation where undertakings or associations of undertakings adopt an obstructive attitude or refuse to cooperate. The power to examine books or records should cover all forms of correspondence, including electronic messages, irrespective of whether they appear to be unread or have been deleted.

(33)  To minimise the unnecessary prolongation of inspections, national administrative competition authorities should have the power to continue making searches and to select copies or extracts of books and records related to the business of the undertaking or association of undertakings being inspected at the authority’s premises or at other designated premises. Such searches should ensure the continued due respect of undertakings' rights of defence.

(34)  Experience shows that business records may be kept in the homes of directors, managers and other members of staff of undertakings or of associations of undertakings, in particular because of the increased use of more flexible working arrangements. In order to ensure that inspections are effective, national administrative competition authorities should have the power to enter any premises, including private homes, if they can show that there is a reasonable suspicion that business records ▌which may be relevant to prove an infringement of Article 101 or 102 TFEU are being kept in those premises. The exercise of that power should be subject to the national administrative competition authority having obtained prior authorisation from a national judicial authority, which may include a public prosecutor in certain national legal systems. This should not prevent Member States in cases of extreme urgency from entrusting the tasks of a national judicial authority to a national administrative competition authority acting as a judicial authority or, by way of exception, allowing for such inspections to be carried out with the consent of those subject to inspection. The conduct of such inspections might be entrusted by a national administrative competition authority to the police or an equivalent enforcement authority, provided that the inspection is carried out in the presence of the national administrative competition authority. This should be without prejudice to the right of the national administrative competition authority to conduct the inspection itself and to obtain the necessary assistance of the police or an equivalent enforcement authority, including assistance, as a precautionary measure, to overcome possible opposition on the part of those subject to the inspection.

(35)  NCAs should have effective powers to require undertakings or associations of undertakings to provide information necessary to detect infringements of Articles 101 and 102 TFEU. To that end, NCAs should be able to require the disclosure of information that may enable them to investigate putative infringements. This should include the right to require information in any digital form, including emails and instant messaging system messages, irrespective of where it is stored, including in clouds and on servers, provided it is accessible to the undertaking or association of undertakings which is the addressee of the request for information. That right should not result in an obligation on the part of the undertaking or association of undertakings which is disproportionate to the requirements of the investigation. For example, it should not result in excessive costs or efforts being incurred by the undertaking or association of undertakings. While the right to require information is crucial for the detection of infringements, such requests should be appropriate in scope. Such requests should not compel an undertaking or association of undertakings to admit that it has committed an infringement, which is incumbent upon the NCAs to prove. This should be without prejudice to the obligations of undertakings or associations of undertakings to answer factual questions and to provide documents. Similarly, NCAs should have effective tools to require any other natural or legal person to provide information that may be relevant for the application of Articles 101 and 102 TFEU. Member States should be free to provide for procedural rules on such requests for information, such as the legal form they take, provided that those rules allow for the effective use of this tool. Experience also shows that information provided on a voluntary basis in response to non-compulsory requests for information can be a valuable source of information for informed and robust enforcement. Similarly, the provision of information by third parties, such as competitors, customers and consumers in the market, on their own initiative can contribute to effective enforcement and NCAs should encourage this.

(36)  Experience shows that the power to conduct interviews is a useful tool to collect evidence and to help competition authorities assess the value of already-collected evidence. NCAs should have effective means to summon for an interview any representative of an undertaking or association of undertakings, any representative of other legal persons and any natural person who may possess information relevant for the application of Articles 101 and 102 TFEU. Member States should be free to provide for rules governing the conduct of such interviews, provided that such rules allow for the effective use of this tool.

(37)  It is indispensable for NCAs to be able to require undertakings and associations of undertakings to bring infringements of Article 101 or 102 TFEU to an end, including where the infringement continues after the NCAs have formally initiated proceedings. Moreover, NCAs should have effective means to restore competition in the market by imposing structural and behavioural remedies which are proportionate to the infringement committed and which are necessary to bring the infringement to an end. The principle of proportionality requires that, when choosing between two equally effective remedies, NCAs should choose the remedy that is least burdensome for the undertaking. Structural remedies, such as obligations to dispose of a shareholding in a competitor or to divest a business unit, affect the assets of an undertaking and can be presumed to be more burdensome for the undertaking than behavioural remedies. However, this should not preclude NCAs from finding that the circumstances of a particular infringement justify the imposition of a structural remedy because it would be more effective in bringing the infringement to an end than a behavioural remedy.

(38)  Interim measures can be an important tool to ensure that, while an investigation is ongoing, the infringement being investigated does not seriously and irreparably harm competition. This tool is important to avoid market developments that could be very difficult to reverse by a decision taken by an NCA at the end of the proceedings. NCAs should therefore have the power to impose interim measures by decision. As a minimum, this power should apply in cases where an NCA has made a prima facie finding of infringement of Article 101 or 102 TFEU and where there is a risk of serious and irreparable harm to competition. Member States are free to provide NCAs with more extensive powers to impose interim measures. A decision imposing interim measures should only be valid for a specified period, either until the conclusion of the proceedings by an NCA, or for a fixed time period which can be renewed insofar as it is necessary and appropriate. Member States should ensure that the legality, including the proportionality, of such measures can be reviewed in expedited appeal procedures or other procedures which also provide for expedited judicial control. Furthermore, Member States should create the conditions necessary to ensure that NCAs can make use of interim measures in practice. There is a particular need to enable all competition authorities to deal with developments in fast-moving markets and therefore to reflect within the European Competition Network on the use of interim measures and to take this experience into account in any relevant soft measure or future review of this Directive.

(39)  Where, in the course of proceedings which might lead to an agreement or a practice being prohibited, undertakings or associations of undertakings offer NCAs commitments which meet their concerns, these NCAs should be able to adopt decisions which make these commitments binding on, and enforceable against, the undertakings or associations of undertakings concerned. In principle, such commitment decisions are not appropriate in the case of secret cartels, in respect of which NCAs should impose fines. Commitment decisions should find that there are no longer grounds for action by the NCAs, without reaching a conclusion as to whether there has been an infringement of Article 101 or 102 TFEU. It should be at the discretion of NCAs whether to accept commitments. Commitment decisions are without prejudice to the powers of competition authorities and national courts to make such a finding of an infringement and decide upon a case. Moreover, effective means of monitoring compliance by undertakings or associations of undertakings with commitments and effective means of imposing sanctions in cases of non-compliance have proven to be effective tools for competition authorities. NCAs should have effective means for the reopening of proceedings in cases where there have been material changes to any of the facts on which a commitment decision was based, where the undertaking or association of undertakings acted contrary to their commitments, or where a commitment decision was based on incomplete, incorrect or misleading information provided by the parties.

(40)  To ensure the effective and uniform enforcement of Articles 101 and 102 TFEU, national administrative competition authorities should have the power to impose effective, proportionate and dissuasive fines on undertakings and associations of undertakings for infringements of Article 101 or 102 TFEU, either directly themselves in their own proceedings, in particular in administrative proceedings, provided that such proceedings enable the direct imposition of effective, proportionate and dissuasive fines, or by seeking the imposition of fines in non-criminal judicial proceedings. This is without prejudice to national laws which provide for the imposition of sanctions on undertakings and associations of undertakings by courts in criminal proceedings for the infringement of Articles 101 and 102 TFEU where the infringement is a criminal offence under national law and provided that it does not affect the effective and uniform enforcement of Articles 101 and 102 TFEU.

(41)  To ensure that undertakings and associations of undertakings have incentives to comply with the investigative measures and decisions of the NCAs, national administrative competition authorities should be able either to impose effective fines for non-compliance with the measures and decisions referred to in Articles 6, 8, 9, 10, 11 and 12 directly themselves in their own proceedings or to seek the imposition of fines in non-criminal judicial proceedings. This is without prejudice to national law which provide for the imposition of such fines on undertakings and associations of undertakings by courts in criminal judicial proceedings. ▌

(42)  In accordance with the Charter of Fundamental Rights of the European Union, in proceedings before national administrative competition authorities or, as the case may be, in non-criminal judicial proceedings, fines should be imposed where the infringement has been committed intentionally or negligently. The notions of intent and negligence should be interpreted in line with the case law of the Court of Justice of the European Union on the application of Articles 101 and 102 TFEU and not in line with the notions of intent and negligence in proceedings conducted by criminal authorities relating to criminal matters. This is without prejudice to national laws under which the finding of an infringement is based on the criterion of objective liability, provided that it is compatible with the case law of the Court of Justice of the European Union. This Directive does not affect national rules on the standard of proof or the obligations of NCAs to ascertain the facts of the relevant case, provided that such rules and obligations are compatible with general principles of Union law. ▌

(43)  Fines should be determined in proportion to the total worldwide turnover of the undertakings and associations of undertakings concerned.

(44)  Periodic penalty payments are a key tool to ensure that NCAs have effective means to tackle continuing and future non-compliance by undertakings and associations of undertakings with their measures and decisions as referred to in Articles 6, 8, 9, 10, 11 and 12. They should not apply to findings of infringements that have been committed in the past. The power to impose periodic penalty payments is without prejudice to the power of NCAs to punish non‑compliance with the measures referred to in Article 13(2). Such periodic penalty payments should be determined in proportion to the average daily total worldwide turnover of the undertakings and associations of undertakings concerned.

(45)  For the purpose of imposing fines and periodic penalty payments, the term 'decision' should include any measure which produces binding legal effects capable of affecting the interests of the addressee by bringing about a distinct change in his or her legal position.

(46)  To ensure the effective and uniform application of Articles 101 and 102 TFEU, the notion of 'undertaking', as contained in Articles 101 and 102 TFEU, which should be applied in accordance with the case law of the Court of Justice of the European Union, designates an economic unit, even if it consists of several legal or natural persons. Accordingly, NCAs should be able to apply the notion of undertaking to find a parent company liable, and impose fines on it, for the conduct of one of its subsidiaries, where the parent company and its subsidiary form a single economic unit. To prevent undertakings escaping liability for fines for infringements of Articles 101 and 102 TFEU through legal or organisational changes, NCAs should be able to find legal or economic successors of the undertaking liable, and to impose fines on them, for infringements of Articles 101 and 102 TFEU, in accordance with the case law of the Court of Justice of the European Union.

(47)  To ensure that the fines imposed for infringements of Articles 101 and 102 TFEU reflect the economic significance of the infringement, NCAs should take into account the gravity of the infringement. NCAs should also be able to set fines that are proportionate to the duration of the infringement. These factors should be assessed in accordance with the relevant case law of the Court of Justice of the European Union and in a way that ensures deterrence. The assessment of gravity should be made on a case-by-case basis for all types of infringements, taking into account all circumstances of the case ▌. Factors that might be taken into consideration include the nature of the infringement, the combined market share of all undertakings concerned, the geographic scope of the infringement, whether the infringement has been implemented, the value of the undertaking's sales of goods and services to which the infringement directly or indirectly relates and the size and market power of the undertaking concerned. The existence of repeated infringements by the same perpetrator shows its propensity to commit such infringements and is therefore a very significant indication that ▌ the level of the penalty needs to be increased to achieve effective deterrence. Accordingly, NCAs should have the possibility to increase the fine to be imposed on an undertaking or association of undertakings where the Commission or an NCA has previously taken a decision finding that that undertaking or association of undertakings has infringed Article 101 or 102 TFEU and that undertaking or association of undertakings continues to commit the same infringement or commits a similar infringement. In accordance with Directive 2014/104/EU, NCAs should be able to take into account any compensation paid as a result of a consensual settlement. In addition, in exceptional circumstances, NCAs should be able to take into account the economic viability of the undertaking concerned.

(48)  Experience has shown that associations of undertakings regularly play a role in competition infringements and NCAs should therefore be able to fine such associations effectively. When assessing the gravity of the infringement, in order to determine the amount of the fine in proceedings brought against associations of undertakings, where the infringement relates to the activities of its members, it should be possible to consider the sum of the sales of goods and services to which the infringement directly or indirectly relates by the undertakings that are members of the association. When a fine is imposed not only on the association but also on its members, the turnover of the members on which a fine is imposed should not be taken into account when calculating the fine of the association. In order to ensure effective recovery of fines imposed on associations of undertakings for infringements that they have committed, it is necessary to lay down the conditions in which it is at NCAs' discretion to require payment of the fine from the members of the association where the association is not solvent. In doing so, NCAs should have regard to the relative size of the undertakings that belong to the association and, in particular, to the situation of small and medium-sized enterprises. Payment of the fine by one or several members of an association is without prejudice to rules of national law that provide for recovery of the amount paid from other members of the association.

(49)  The deterrent effect of fines differs widely across the Union, and in some Member States the maximum amount of the fine that can be imposed is very low. To ensure NCAs can impose dissuasive fines, the maximum amount of the fine that is possible to be imposed for each infringement of Article 101 or 102 TFEU should be set at a level of not less than 10 % of the total worldwide turnover of the undertaking concerned. This should not prevent Member States from maintaining or introducing a higher maximum fine that can be imposed.

(50)  Leniency programmes are a key tool for the detection of secret cartels, and thus contribute to the efficient prosecution of, and the imposition of penalties for, the most serious infringements of competition law. However, there are currently marked differences between the leniency programmes applicable in the Member States. Those differences lead to legal uncertainty on the part of infringing undertakings concerning the conditions under which they are able to apply for leniency, as well as uncertainty about their immunity status under the respective leniency programmes. Such uncertainty might weaken incentives for potential leniency applicants to apply for leniency. This in turn can lead to less effective competition enforcement in the Union, as fewer secret cartels are uncovered.

(51)  The differences between leniency programmes at Member State level also jeopardise the level playing field for undertakings operating in the internal market. It is therefore appropriate to increase legal certainty for undertakings in the internal market and to boost the attractiveness of leniency programmes across the Union by reducing these differences by enabling all NCAs to grant immunity and reduction from fines and accept summary applications under the same conditions. Further efforts by the European Competition Network to align leniency programmes could be needed in the future.

(52)  NCAs should be able to grant undertakings immunity from fines and reductions of fines, if certain conditions are met. Associations of undertakings which perform an economic activity on their own behalf should be eligible for immunity from fines or reductions of fines in cases where they participate in an alleged cartel on their own behalf and not on behalf of their members.

(53)  For a cartel to be considered a secret cartel, not all aspects of the conduct need to be secret. In particular, a cartel can be considered a secret cartel when elements of the cartel which make the full extent of the conduct more difficult to detect are not known to the public or the customers or suppliers.

(54)  In order to qualify for leniency, the applicant should end its involvement in the alleged secret cartel, except in cases where an NCA considers that its continued involvement is reasonably necessary to preserve the integrity of the investigation, for example, in order to ensure that other alleged participants in the cartel do not discover that the NCA was made aware of the alleged cartel before it carries out investigative measures such as unannounced inspections.

(55)  In order to qualify for leniency, the applicant should cooperate genuinely, fully, on a continuous basis and expeditiously with the NCA. This means, inter alia, that when contemplating the making of an application to the NCA the applicant should not destroy, falsify or conceal evidence of the alleged secret cartel. When an undertaking is contemplating the making of an application, there is a risk that its directors, managers and other staff might destroy evidence in order to conceal their involvement in a cartel, but the destruction of evidence could also occur for other reasons. Therefore, NCAs should take into account the specific circumstances under which evidence was destroyed and the significance of such destruction when considering whether the destruction of evidence calls into question the genuine cooperation of the applicant.

(56)  In order to fulfil the condition of genuine, full, continuous and expeditious cooperation, when contemplating the making of an application to the NCA, the applicant should not have disclosed the fact or any of the content of its contemplated application, except to other NCAs, the Commission or competition authorities of third countries. This does not preclude an applicant from reporting its behaviour to other public authorities as required by relevant laws, but only prevents it from disclosing the fact that it is contemplating an application for leniency and from handing over leniency statements to those authorities. However, when fulfilling its obligations under those relevant laws, the applicant should also consider the importance of not adversely impacting the potential investigation by the NCA.

(57)  Applicants should have the possibility of submitting leniency statements, in relation to full or summary applications, in writing, and NCAs should also have a system in place that enables them to accept such statements either in oral form or by other means that permit applicants not to take possession, custody, or control of such submitted statements. NCAs should be able to choose the means by which they accept leniency statements.

(58)  Undertakings that wish to make an application for immunity should be able to initially request NCAs for a marker for a place in the queue for leniency before they formally submit the application for immunity, in order to give the applicant time to gather the necessary information and evidence to meet the relevant evidential threshold. This is without prejudice to the ability of Member States to allow undertakings to apply for a marker in the case of applications for a reduction of fines.

(59)  Moreover, in order to reduce the administrative and other considerable burdens in terms of time, it should be possible for applicants to submit leniency statements in relation to full or summary applications, as well as in relation to requests for markers, either in an official language of the Member State of the NCA concerned, or, where bilaterally agreed between the NCA and the applicant, in another official language of the Union. Such agreement would be deemed to exist where the NCAs generally accept such submissions in that language .

(60)  In view of the shared competences between the Commission and the NCAs for the enforcement of Articles 101 and 102 TFEU, it is key to have a smoothly functioning system of summary applications in place. Applicants which have applied for leniency to the Commission in relation to an alleged secret cartel should be able to submit summary applications to NCAs in relation to the same cartel, provided that the application to the Commission covers more than three Member States as affected territories. This is without prejudice to the possibility for the Commission to deal with cases if they are closely linked to other Union provisions which may be exclusively or more effectively applied by the Commission, where the Union interest requires the adoption of a Commission decision to develop Union competition policy when a new competition issue arises, or to ensure effective enforcement.

(61)  The summary application system should allow undertakings to submit a leniency application to NCAs containing a limited set of information where a full application has been submitted to the Commission in relation to such an alleged cartel. NCAs should therefore accept summary applications that contain a minimum set of information in relation to the alleged cartel for each of the items set out in Article 22(2). This is without prejudice to the possibility for the applicant to provide more detailed information at a later time. At the request of the leniency applicant, NCAs should provide it with an acknowledgement of receipt stating the date andtime of receipt. If an NCA has not yet received such a prior leniency application from another leniency applicant about the same alleged secret cartel, and considers that the summary application fulfils the requirements of Article 22(2), the NCA should inform the applicant accordingly.

(62)  The aim of the system of summary applications is to reduce the administrative burden on applicants which submit a leniency application to the Commission in relation to an alleged secret cartel that covers more than three Member States as affected territories. Given that in such cases the Commission receives a full application, it should be the main interlocutor of the leniency applicant in the period before clarity has been gained as to whether the Commission will pursue the case in full or in part, in particular with respect to providing instructions on the conduct of any further internal investigation by the applicant. The Commission is to endeavour to decide on this matter within a reasonable period of time and inform the NCAs accordingly, without prejudice to Article 11(6) of Regulation (EC) No 1/2003. In exceptional circumstances, when strictly necessary for case delineation or case allocation, an NCA should be able to request the applicant to submit a full application before such clarity has been gained. This possibility should be used very rarely. In other cases, the applicant should only be asked to submit a full application to an NCA which has received a summary application once it is clear that the Commission does not intend to pursue the case in whole or in part.

(63)  Applicants should be given the opportunity to submit full leniency applications to the NCAs to which they have submitted summary applications. If the applicants submit such full applications within the period specified by the NCA, the information contained in those applications should be deemed to have been submitted at the time at which the summary application was submitted, provided that the summary application covers the same affected products and territories and the same duration of the alleged cartel as the leniency application filed with the Commission, which might have been updated. The onus should be on applicants to inform the NCAs to which they have submitted summary applications if the scope of their leniency application with the Commission has changed and to update their summary applications accordingly. NCAs should be able to check whether the scope of the summary application corresponds to the scope of the leniency application filed with the Commission, through cooperation within the European Competition Network.

(64)  Legal uncertainty as to whether current and former directors, managers and other members of staff of applicants for immunity are shielded from individual sanctions such as fines, disqualification or imprisonment, could prevent potential applicants from applying for leniency. In light of their contribution to the detection and investigation of secret cartels, those individuals should thus, in principle, be protected from ▌sanctions in relation to their involvement in the secret cartel covered by the application imposed by public authorities in criminal, administrative and non-criminal judicial proceedings pursuant to national laws that predominantly pursue the same objectives to those pursued by Article 101 TFEU, such as national laws on bid-rigging, where the conditions set out in this Directive are fulfilled. One of these conditions is that the application for immunity should predate the time when those individuals were made aware by the competent national authorities of the proceedings that could lead to the imposition of sanctions. Such proceedings include the moment those individuals become suspected of violating such national laws.

Member States are free to provide under national law for modalities as to how those individuals should cooperate with the relevant authorities to ensure the effective functioning of this protection. Protection from criminal sanctions includes cases in which the competent national authorities refrain from prosecution under certain conditions or subject to instructions as to the future behaviour of the individual.

(65)  By way of derogation, in order to ensure that the protection from sanctions to be imposed on individuals in criminal proceedings is in conformity with the existing basic principles of their legal system, Member States might provide that the competent authorities are able to choose between protecting the individual from sanctions or only mitigating those sanctions, depending on the outcome of weighing the interest in prosecuting and/or sanctioning the individual against the individual's contribution to the detection and investigation of the cartel. When assessing the interest in prosecuting and/or sanctioning those individuals, their personal responsibility or contribution to the infringement, among other factors, may be taken into account.

(66)  Member States are not precluded from also protecting the current or former directors, managers and other members of staff of the applicants for reduction of fines from sanctions, or from mitigating such sanctions.

(67)  In order to allow the protection to function in situations where more than one jurisdiction is involved, Member States should provide that in cases where the competent sanctioning or prosecuting authority is not in the same jurisdiction as the competition authority that is pursuing the case, the necessary contacts between those authorities should be ensured by the NCA of the jurisdiction of the competent sanctioning or prosecuting authority.

(68)  In a system in which the Commission and NCAs have parallel powers to apply Articles 101 and 102 TFEU, close cooperation is required among NCAs and between NCAs and the Commission. In particular when an NCA carries out an inspection or an interview under its national law on behalf of another NCA pursuant to Article 22(1) of Regulation (EC) No 1/2003, the presence and assistance of the officials from the applicant authority should be enabled to enhance the effectiveness of such inspections and interviews by providing additional resources, knowledge and technical expertise. NCAs should also be empowered to ask other NCAs to assist in establishing whether undertakings or associations of undertakings have failed to comply with investigative measures and decisions taken by the applicant NCAs.

(69)  Arrangements should be put in place to allow NCAs to request mutual assistance for the notification of documents related to the application of Article 101 or 102 TFEU on a cross-border basis to parties to the proceedings or other undertakings, associations of undertakings or natural persons which may be the addressees of such notifications. Similarly, NCAs should be able to request the enforcement of decisions imposing fines or periodic penalty payments by authorities in other Member States where the applicant authority has made reasonable efforts to ascertain that the undertaking against which the fine or periodic penalty payment is to be enforced does not have sufficient assets in the Member State of the applicant authority. Member States should also provide, in particular, that where the undertaking against which the fine or periodic penalty payment is enforceable is not established in the Member State of the applicant authority, the requested authority may enforce decisions adopted by the applicant authority, at the request of the applicant authority. This would ensure the effective enforcement of Articles 101 and 102 TFEU and would contribute to the proper functioning of the internal market. In order to ensure that NCAs devote sufficient resources to the requests for mutual assistance, and in order to incentivise such assistance, the requested authorities should be able to recover the costs they incur in providing that assistance. Such mutual assistance is without prejudice to the application of Council Framework Decision 2005/214/JHA(4).

(70)  To ensure the effective enforcement of Articles 101 and 102 TFEU by NCAs there is a need to provide for workable rules on ▌ limitation periods. In particular, in a system of parallel powers, national limitation periods should be suspended or interrupted for the duration of proceedings before NCAs of another Member State or the Commission. Such suspension or interruption should not prevent Member States from maintaining or introducing absolute limitation periods, provided that the duration of such absolute limitation periods does not render the effective enforcement of Articles 101 and 102 TFEU practically impossible or excessively difficult.

(71)  To ensure that cases are dealt with efficiently and effectively within the European Competition Network, in those Member States where both a national administrative competition authority ▌and a national judicial competition authority are designated as NCAs for the purpose of enforcing Articles 101 and 102 TFEU as referred to in Articles 6, 7, 8, 9, 10, 11, 12, 13 and 16 of this Directive, national administrative competition authorities should be able to bring the action directly before the national judicial competition authority. In addition, to the extent that national courts act ▌ in proceedings brought against ▌decisions taken by NCAs applying Article 101 or 102 TFEU, national administrative competition authorities should be fully entitled to participate in their own right as a prosecutor, defendant or respondent in those proceedings, and should enjoy the same rights of such a public party to those proceedings.

(72)  The risk of self-incriminating material being disclosed outside the context of the investigation for the purposes of which it was provided could weaken the incentives for potential leniency applicants to cooperate with competition authorities. As a consequence, regardless of the form in which leniency statements are submitted, information in leniency statements that has been obtained through access to the file should be used only where necessary for the exercise of rights of defence in proceedings before national courts in certain very limited cases which are directly related to the case for which access has been granted. This should not prevent competition authorities from publishing their decisions in accordance with applicable Union or national law.

(73)  Evidence is an important element in the enforcement of Articles 101 and 102 TFEU. NCAs should be able to consider relevant evidence, irrespective of whether it is written, oral, or in an electronic or recorded form ▌. This should include the ability to consider covert recordings made by natural or legal persons which are not public authorities, provided those recordings are not the sole source of evidence. This should be without prejudice to the right to be heard and without prejudice to the admissibility of any recordings made or obtained by public authorities. Similarly, NCAs should be able to consider electronic messages as relevant evidence, irrespective of whether those messages appear to be unread or have been deleted.

(74)  Ensuring that NCAs have the powers they need in order to be more effective enforcers reinforces the need for close cooperation and effective multilateral and bilateral communication in the European Competition Network. This should include the development of soft measures to facilitate and support the implementation of this Directive.

(75)  To support close cooperation in the European Competition Network, the Commission should maintain, develop, host, operate and support a central information system (European Competition Network System) in compliance with the relevant confidentiality, data protection and data security standards. The European Competition Network relies on interoperability in order to function effectively and efficiently. The general budget of the Union should bear the costs of maintenance, development, hosting, user support and operation of the European Competition Network System, as well as other administrative costs incurred in connection with the functioning of the European Competition Network, in particular the costs related to the organisation of meetings. Until 2020, provision has been made for the costs for the European Competition Network System to be covered by the Programme on interoperability solutions and common frameworks for European public administrations, businesses and citizens (ISA2 programme) established by Decision (EU) 2015/2240 of the European Parliament and of the Council(5), subject to the programme's available resources, eligibility and prioritisation criteria.

(76)  Since the objectives of this Directive, namely ensuring that NCAs have the necessary guarantees of independence, resources, and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU and national competition law in parallel to Articles 101 and 102 TFEU, and ensuring the effective functioning of the internal market and the European Competition Network, cannot be sufficiently achieved by the Member States, but can rather by reason of the requisite effectiveness and uniformity in the application of Articles 101 and 102 TFEU be better achieved at Union level in particular in view of the territorial scope of the Directive, the Union may adopt measures in accordance with the principle of subsidiarity as set out on Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary to achieve those objectives.

(77)  In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents,(6) Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the transmission of such documents is considered to be justified,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SUBJECT MATTER, SCOPE AND DEFINITIONS

Article 1

Subject matter and scope

1.  This Directive sets out certain rules to ensure that national competition authorities have the necessary guarantees of independence, resources, and enforcement and fining powers to be able to effectively apply Articles 101 and 102 TFEU so that competition in the internal market is not distorted and that consumers and undertakings are not put at a disadvantage by national laws and measures which prevent national competition authorities from being effective enforcers.

2.  This Directive covers the application of Articles 101 and 102 TFEU and the parallel application of national competition law to the same case. As regards Article 31(3) and (4) of this Directive, this Directive also covers the application of national competition law on a stand-alone basis.

3.  This Directive sets out certain rules on mutual assistance to safeguard the smooth functioning of the internal market and the smooth functioning of the system of close cooperation within the European Competition Network.

Article 2

Definitions

1.  For the purposes of this Directive, the following definitions apply:

(1)  ̔national competition authority̕ means an authority designated by a Member State pursuant to Article 35 of Regulation (EC) No 1/2003 as being responsible for the application of Articles 101 and 102 TFEU; Member States may designate one or more administrative competition authorities (national administrative competition authorities), as well as judicial authorities (national judicial competition authorities);

(2)  'national administrative competition authority' means an administrative authority designated by a Member State to carry out all or some of the functions of a national competition authority;

(3)  'national judicial competition authority' means a judicial authority designated by a Member State to carry out some of the functions of a national competition authority;

(4)  ̔competition authority̕ means a national competition authority ▌, the Commission or both, as the context may require;

(5)  ̔European Competition Network̕ means the network of public authorities formed by the national competition authorities and the Commission to provide a forum for discussion and cooperation as regards the application and enforcement of Articles 101 and 102 TFEU;

(6)  ̔national competition law ▌ means provisions of national law that predominantly pursue the same objective as Articles 101 and 102 TFEU and that are applied to the same case and in parallel to Union competition law pursuant to Article 3(1) of Regulation (EC) No 1/2003, as well as provisions of national law that predominantly pursue the same objective as Articles 101 and 102 TFEU and that are applied on a stand-alone basis as regards Article 31(3) and (4) of this Directive, excluding provisions of national law which impose criminal penalties on natural persons;

(7)  ̔national court̕ means a court or tribunal of a Member State within the meaning of Article 267 TFEU;

(8)  ̔review court̕ means a national court that is empowered by ordinary means of appeal to review decisions of a national competition authority or to review judgments pronouncing on those decisions, irrespective of whether that court itself has the power to find an infringement of competition law;

(9)  ̔enforcement proceedings̕ means the proceedings before a competition authority for the application of Article 101 or 102 TFEU, until that competition authority has closed such proceedings by taking a decision referred to in Article 10, 12 or 13 of this Directive in the case of a national competition authority, or by taking a decision referred to in Article 7, 9 or 10 of Regulation (EC) No 1/2003 in the case of the Commission, or as long as the competition authority has not concluded that there are no grounds for further action on its part;

(10)  ̔undertaking̕ as referred to in Articles 101 and 102 TFEU, means any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed ▌;

(11)  ̔ ▌cartel̕ means an agreement ▌or concerted practice between two or more competitors aimed at coordinating their competitive behaviour on the market ▌or influencing the relevant parameters of competition through practices such as, but not limited to, the fixing or coordination of purchase or selling prices or other trading conditions, including in relation to intellectual property rights, the allocation of production or sales quotas, the sharing of markets and customers, including bid-rigging, restrictions of imports or exports ▌or anti-competitive actions against other competitors▌;

(12)  'secret cartel' means a cartel, the existence of which is ▌ partially or wholly concealed;

(13)  ̔immunity from fines̕ means an exemption from fines that would otherwise be imposed on an undertaking for its participation in a secret cartel, in order to reward it for its cooperation with a competition authority in the framework of a leniency programme;

(14)  ̔reduction of fines̕ means a reduction in the amount of the fine that would otherwise be imposed on an undertaking for its participation in a secret cartel, in order to reward it for its cooperation with a competition authority in the framework of a leniency programme;

(15)  ̔leniency̕ means both immunity from fines and reduction of fines;

(16)  ̔leniency programme̕ means a programme concerning the application of Article 101 TFEU or a corresponding provision under national competition law on the basis of which a participant in a secret cartel, independently of the other undertakings involved in the cartel, cooperates with an investigation of the competition authority, by voluntarily providing presentations regarding that participant’s knowledge of, and role in, the cartel in return for which that participant receives, by decision or by a discontinuation of proceedings, immunity from, or a reduction of, fines for its involvement in the cartel;

(17)  ̔leniency statement̕ means an oral or written presentation voluntarily provided by, or on behalf of, an undertaking or a natural person to a competition authority or a record thereof, describing the knowledge of that undertaking or natural person of a ▌ cartel and describing its role therein, which presentation was drawn up specifically for submission to the competition authority with a view to obtaining immunity or a reduction of fines under a leniency programme, not including ▌ evidence that exists irrespective of the enforcement proceedings , whether or not such information is in the file of a competition authority, namely pre-existing information;

(18)  ̔settlement submission̕ means a voluntary presentation by, or on behalf of, an undertaking to a competition authority, describing the undertaking’s acknowledgement of, or its renunciation to dispute, its participation in an infringement of Article 101 or 102 TFEU or national competition law and its responsibility for that infringement, which was drawn up specifically to enable the competition authority to apply a simplified or expedited procedure;

(19)  ̔applicant̕ means an undertaking that applies for immunity from, or a reduction of, fines under a leniency programme;

(20)  ̔applicant authority̕ means a national competition authority which makes a request for mutual assistance as referred to in Article 24, 25, 26, 27 or 28;

(21)  ̔requested authority̕ means a national competition authority which receives a request for mutual assistance and in the case of a request for assistance as referred to in Article 25, 26, 27 or 28 means the competent public body which has principal responsibility for the enforcement of such decisions under national laws, regulations and administrative practice;

(22)  ‘final decision’ means a decision that cannot be, or that can no longer be, appealed by ordinary means.

2.  All references to the application or infringement ▌ of Articles 101 and 102 TFEU in this Directive shall be understood as including the parallel application of ▌national competition law ▌to the same case.

CHAPTER II

FUNDAMENTAL RIGHTS

Article 3

Safeguards

1.  Proceedings concerning infringements of Article 101 or 102 TFEU, including the exercise of the powers referred to in this Directive by national competition authorities, shall comply with general principles of Union law and the Charter of Fundamental Rights of the European Union.

2.  Member States shall ensure that the exercise of the powers referred to in paragraph 1 is subject to appropriate safeguards in respect of the undertakings' rights of defence, including the right to be heard and the right to an effective remedy before a tribunal ▌.

3.  Member States shall ensure that enforcement proceedings of national competition authorities are conducted within a reasonable timeframe. Member States shall ensure that, prior to taking a decision pursuant to Article 10 of this Directive, national competition authorities adopt a statement of objections.

CHAPTER III

INDEPENDENCE AND RESOURCES

Article 4

Independence

1.  To guarantee the independence of national administrative competition authorities when applying Articles 101 and 102 TFEU, Member States shall ensure that such authorities perform their duties and exercise their powers impartially and in the interests of the effective and uniform application of those provisions, subject to proportionate accountability requirements and without prejudice to close cooperation between competition authorities in the European Competition Network.

2.  In particular, Member States shall at a minimum ensure that the staff and persons who take decisions exercising the powers in Articles 10 to 13 and Article 16 of this Directive in national administrative competition authorities:

(a)  are able to perform their duties and to exercise their powers for the application of Articles 101 and 102 TFEU independently from political and other external influence;

(b)  neither seek nor take any instructions from ▌government or any other public or private entity when carrying out their duties and exercising their powers for the application of Articles 101 and 102 TFEU, without prejudice to the right of a government of a Member State, where applicable, to issue general policy rules that are not related to sector inquiries or specific enforcement proceedings; and

(c)  refrain from taking any action which is incompatible with the performance of their duties and/or with the exercise of their powers for the application of Articles 101 and 102 TFEU and are subject to procedures that ensure that, for a reasonable period after leaving office, they refrain from dealing with enforcement proceedings that could give rise to conflicts of interest.

3.  The persons who take decisions exercising the powers in Articles 10 to 13 and Article 16 of this Directive in national administrative competition authorities shall not be dismissed from such authorities for reasons related to the proper performance of their duties or to the proper exercise of their powers for the application of Articles 101 and 102 TFEU, as referred to in Article 5(2) of this Directive. They may be dismissed only if they no longer fulfil the conditions required for the performance of their duties or if they have been found guilty of serious misconduct under national law. The conditions required for the performance of their duties, and what constitutes serious misconduct, shall be laid down in advance in national law, taking into account the need to ensure effective enforcement.

4.  Member States shall ensure that the members of the decision-making body of national administrative competition authorities are selected, recruited or appointed according to clear and transparent procedures laid down in advance in national law.

5.   National administrative competition authorities shall have the power to set their priorities for carrying out the tasks for the application of Articles 101 and 102 TFEU as referred to in Article 5(2) of this Directive. To the extent that national administrative competition authorities are obliged to consider formal complaints, ▌ those authorities shall have the power to reject such complaints on the grounds that they do not consider such complaints to be an enforcement priority. This is without prejudice to the power of national administrative competition authorities to reject complaints on other grounds defined by national law.

Article 5

Resources

1.  Member States shall ensure at a minimum that national competition authorities have a sufficient number of qualified staff and sufficient financial ▌, technical and technological resources that are necessary for the effective performance of their duties, and for the effective exercise of their powers for the application of Articles 101 and 102 TFEU as set out in paragraph 2 of this Article.

2.  For the purposes of paragraph 1 national competition authorities shall be able, at a minimum, to conduct investigations with a view to applying Articles 101 and 102 TFEU, to adopt decisions applying those provisions on the basis of Article 5 of Regulation (EC) No 1/2003; and to cooperate closely in the European Competition Network with a view to ensuring the effective and uniform application of Articles 101 and 102 TFEU. To the extent provided for under national law, national competition authorities shall also be able to advise public institutions and bodies, where appropriate, on legislative, regulatory and administrative measures which may have an impact on competition in the internal market as well as promote public awareness of Articles 101 and 102 TFEU.

3.  Without prejudice to national budgetary rules and procedures, Member States shall ensure that national competition authorities are granted independence in the spending of the allocated budget for the purpose of carrying out their duties as set out in paragraph 2.

4.  Member States shall ensure that national administrative competition authorities submit periodic reports on their activities and their resources to a governmental or parliamentary body. Member States shall ensure that such reports include information about the appointments and dismissals of members of the decision-making body, the amount of resources that were allocated in the relevant year, and any changes in that amount compared to previous years. Such reports shall be made publicly available.

CHAPTER IV

POWERS

Article 6

Power to inspect business premises

1.  Member States shall ensure that national administrative competition authorities are able to conduct all necessary unannounced inspections of undertakings and associations of undertakings for the application of Articles 101 and 102 TFEU. Member States shall ensure that the officials and other accompanying persons authorised or appointed by national competition authorities to conduct such inspections are, at a minimum, empowered:

(a)  to enter any premises, land, and means of transport of undertakings and associations of undertakings;

(b)  to examine the books and other records related to the business irrespective of the medium on which they are stored, and to have the right to access any information which is accessible to the entity subject to the inspection;

(c)  to take or obtain, in any form, copies of or extracts from such books or records and, where they consider it appropriate, to continue making such searches for information and the selection of copies or extracts at the premises of the national competition authorities or at any other designated premises;

(d)  to seal any business premises and books or records for the period and to the extent necessary for the inspection;

(e)  to ask any representative or member of staff of the undertaking or association of undertakings for explanations on facts or documents relating to the subject-matter and purpose of the inspection and to record the answers.

2.  Member States shall ensure that undertakings and associations of undertakings are required to submit to the inspections referred to in paragraph 1. Member States shall also ensure that, where an undertaking or association of undertakings opposes an inspection that has been ordered by a national administrative competition authority and/or that has been authorised by a national judicial authority, national competition authorities are able to obtain the necessary assistance of the police or of an equivalent enforcement authority so as to enable them to conduct the inspection. Such assistance may also be obtained as a precautionary measure.

3.  This Article is without prejudice to requirements under national law for the prior authorisation of such inspections by a national judicial authority.

Article 7

Power to inspect other premises

1.  Member States shall ensure that if a reasonable suspicion exists that books or other records related to the business and to the subject matter of the inspection, which may be relevant to prove an infringement of Article 101 or Article 102 TFEU, are being kept in any premises, land or means of transport other than those referred to in point (a) of Article 6(1) of this Directive, including the homes of directors, managers, and other members of staff of undertakings or associations of undertakings, national administrative competition authorities are able to conduct unannounced inspections in such premises, land and means of transport.

2.  Such inspections shall not be carried out without the prior authorisation of a national judicial authority.

3.  Member States shall ensure that the officials and other accompanying persons authorised or appointed by national competition authorities to conduct an inspection in accordance with paragraph 1 of this Article at a minimum have the powers set out in points (a), (b) and (c) of Article 6(1) and Article 6(2).

Article 8

Requests for information

Member States shall ensure that national administrative competition authorities may ▌require undertakings and associations of undertakings to provide all necessary information for the application of Articles 101 and 102 TFEU within a specified and reasonable time limit. Such requests for information shall be proportionate and not compel the addressees of the requests to admit an infringement of Articles 101 and 102 TFEU. The obligation to provide all necessary information covers information which is accessible to such undertakings or associations of undertakings. National competition authorities shall also be empowered to require any other natural or legal persons to provide information that may be relevant for the application of Articles 101 and 102 TFEU within a specified and reasonable time limit.

Article 9

Interviews

Member States shall ensure that national administrative competition authorities at a minimum are empowered to summon any representative of an undertaking or association of undertakings, any representative of other legal persons, and any natural person, where such representative or person may possess information relevant for the application of Articles 101 and 102 TFEU, to appear for an interview.

Article 10

Finding and termination of infringement

1.  Member States shall ensure that where national competition authorities find ▌an infringement of Article 101 or 102 TFEU, they may by decision require the undertakings and associations of undertakings concerned to bring that infringement to an end. For that purpose, they may impose any behavioural or structural remedies which are proportionate to the infringement committed and necessary to bring the infringement effectively to an end. When choosing between two equally effective remedies, national competition authorities shall choose the remedy that is least burdensome for the undertaking, in line with the principle of proportionality.

Member States shall ensure that national competition authorities are empowered to find that an infringement of Article 101 or 102 TFEU has been committed in the past.

2.  .Where, having informed the Commission under in accordance with Article 11(3) of Regulation (EC) No 1/2003, national competition authorities decide that there are no grounds to continue enforcement proceedings and as a result close those enforcement proceedings, Member States shall ensure that the those national competition authorities inform the Commission accordingly.

Article 11

Interim measures

1.  Member States shall ensure that national ▌competition authorities are empowered to act on their own initiative to order by decision the imposition of interim measures on undertakings and associations of undertakings, at least in cases where there is urgency due to the risk of serious and irreparable harm to competition, on the basis of a prima facie finding of an infringement of Article 101 or Article 102 TFEU. Such a decision shall be proportionate and shall apply either for a specified time period, which may be renewed in so far that is necessary and appropriate, or until the final decision is taken. The national competition authorities shall inform the European Competition Network of the imposition of those interim measures.

2.  Member States shall ensure that the legality, including the proportionality, of the interim measures referred to in paragraph 1 can be reviewed in expedited appeal procedures.

Article 12

Commitments

1.  Member States shall ensure that, in enforcement proceedings initiated with a view to adopting a decision requiring that an infringement of Article 101 or Article 102 TFEU be brought to an end, national competition authorities may, after formally or informally seeking the views of market participants, by decision make commitments offered by undertakings or associations of undertakings binding, where those commitments meet the concerns expressed by the national competition authorities. Such a decision may be adopted for a specified period, and shall conclude that there are no longer grounds for action by the national competition authority concerned.

2.  Member States shall ensure that national competition authorities have effective powers to monitor the implementation of the commitments referred to in paragraph 1.

3.  Member States shall ensure that national competition authorities are able to reopen enforcement proceedings where there have been material changes to any of the facts on which a decision referred to in paragraph 1 was based, where undertakings or associations of undertakings act contrary to their commitments, or where a decision referred to in paragraph 1 was based on incomplete, incorrect or misleading information provided by the parties.

CHAPTER V

FINES AND PERIODIC PENALTY PAYMENTS

Article 13

Fines on undertakings and associations of undertakings

1.  ▌Member States shall ensure that national administrative competition authorities may either impose by decision in their own enforcement proceedings, or request in non-criminal judicial proceedings, the imposition of effective, proportionate and dissuasive fines on undertakings and associations of undertakings where, intentionally or negligently, they infringe Article 101 or 102 TFEU.

2.  ▌ Member States shall ensure at a minimum that national administrative competition authorities may either impose by decision in their own enforcement proceedings, or, request in non-criminal judicial proceedings, the imposition of effective, proportionate and dissuasive fines on undertakings and associations of undertakings. Such fines shall be determined in proportion to their total worldwide turnover, where intentionally or negligently:

(a)  they fail to comply with an inspection as referred to in Article 6(2);

(b)  seals affixed by the officials or other accompanying persons authorised or appointed by the national competition authorities as referred to in point (d) of Article 6(1)) have been broken;

(c)  in response to a question referred to in point (e) of Article 6(1), they give an incorrect, misleading answer, fail or refuse to provide a complete answer▌;

(d)  they supply incorrect, incomplete or misleading information in response to a request ▌ referred to in Article 8 or do not supply information within the specified time limit;

(e)  they fail to appear at an interview referred to in Article 9;

(f)  they fail to comply with a decision referred to in Articles 10, 11 and 12.

3.   Member States shall ensure that the proceedings referred to in paragraphs 1 and 2 allow for the imposition of effective, proportionate and dissuasive fines.

4.  This Article is without prejudice to national laws allowing for the imposition of sanctions in criminal judicial proceedings provided that the application of such laws does not affect the effective and uniform enforcement of Articles 101 and 102 TFEU.

5.  Member States shall ensure that for the purpose of imposing fines on parent companies and legal and economic successors of undertakings, the notion of undertaking applies.

Article 14

Calculation of fines

1.  Member States shall ensure that national competition authorities have regard both to the gravity and to the duration of the infringement when determining the amount of the fine to be imposed for an infringement of Article 101 or 102 TFEU.

2.  Member States shall ensure that national competition authorities may consider compensation paid as a result of a consensual settlement when determining the amount of the fine to be imposed for an infringement of Article 101 or 102 TFEU, in accordance with Article 18(3) of Directive 2014/104/EU.

3.  Member States shall ensure that, where a fine for an infringement of Article 101 or 102 TFEU is imposed on an association of undertakings taking account of the turnover of its members and the association is not solvent, the association is obliged to call for contributions from its members to cover the amount of the fine.

4.  Member States shall ensure that, where contributions referred to in paragraph 3 have not been made in full to the association of undertakings within the time limit fixed by national competition authorities, national competition authorities may require the payment of the ▌fine directly by any of the undertakings whose representatives were members of the decision-making bodies of that association. Where necessary to ensure full payment of the fine, after the national competition authorities have required payment from such undertakings, they may also require the payment of the outstanding amount of the fine by any of the members of the association which were active on the market on which the infringement occurred. However, payment under this paragraph shall not be required from undertakings which show that they did not implement the infringing decision of the association and either were not aware of its existence or have actively distanced themselves from it before the investigation started.

Article 15

Maximum amount of the fine

1.  Member States shall ensure that ▌ the maximum amount of the fine that national competition authorities may impose on each undertaking or association of undertakings participating in an infringement of Article 101 or 102 TFEU is not less than 10 % of the total worldwide turnover of the undertaking or association of undertakings in the business year preceding the decision referred to in Article 13(1).

2.  Where an infringement by an association of undertakings relates to the activities of its members, the maximum amount of the fine shall be not less than 10 % of the sum of the total worldwide turnover of each member active on the market affected by the infringement of the association. However, the financial liability of each undertaking in respect of the payment of the fine shall not exceed the maximum amount set in accordance with paragraph 1.

Article 16

Periodic penalty payments

1.  Member States shall ensure that national administrative competition authorities may by decision impose effective, proportionate and dissuasive periodic penalty payments on undertakings and associations of undertakings. Such periodic penalty payments shall be determined in proportion to the average daily total worldwide turnover of such undertakings or associations of undertakings in the preceding business year per day and calculated from the date appointed by that decision in order to compel those undertakings or associations of undertakings at least:

(a)  to supply complete and correct information in response to a request referred to in Article 8,

(b)  to appear at an interview referred to in Article 9.

2.  Member States shall ensure that national competition authorities may by decision impose effective, proportionate and dissuasive periodic penalty payments on undertakings and associations of undertakings. Such periodic penalty payments shall be determined in proportion to the average daily total worldwide turnover of such undertakings or associations of undertakings in the preceding business year per day and calculated from the date appointed by that decision in order to compel them at least:

(a)  to submit to an inspection as referred to in Article 6(2);

(b)  to comply with a decision referred to in Articles 10, 11 and 12.

CHAPTER VI

LENIENCY PROGRAMMES FOR SECRET CARTELS

Article 17

Immunity from fines

1.  Member States shall ensure that national competition authorities have in place leniency programmes that enable them to grant immunity from fines to undertakings for disclosing their participation in secret cartels. This is without prejudice to national competition authorities having in place leniency programmes for infringements other than secret cartels or leniency programmes that enable them to grant immunity from fines to natural persons.

2.  Member States shall ensure that immunity from fines is granted only where the applicant:

(a)  fulfils the conditions laid down in Article 19;

(b)  discloses its participation in a secret cartel; and

(c)  is the first to submit evidence which:

(i)  at the time the national competition authority receives the application, enables the national competition authority to carry out a targeted inspection in connection with the secret cartel, provided that the national competition authority did not yet have in its possession sufficient evidence to carry out such an inspection or had not already carried out such an inspection; or

(ii)  in the national competition authority's view, is sufficient for it to find an infringement covered by the leniency programme, provided that the ▌authority did not yet have in its possession sufficient evidence to find such an infringement and that no other undertaking previously qualified for immunity from fines under point (i) in relation to that secret cartel.

3.  Member States shall ensure that all undertakings are eligible for immunity from fines, with the exception of undertakings that have taken steps to coerce other undertakings to join a secret cartel or to remain in it..

4.  Member States shall ensure that national competition authorities inform the applicant of whether or not it has been granted conditional immunity from fines. The applicant may request that it be informed by the national competition authority of the result of its application in writing. In cases where the national competition authority rejects an application for immunity from fines, the applicant concerned may request that national competition authority to consider its application as an application for reduction of fines.

Article 18

Reduction of fines

1.  Member States shall ensure that national competition authorities have in place leniency programmes that enable them to grant a reduction of fines to undertakings which do not qualify for immunity from fines. This is without prejudice to national competition authorities having in place leniency programmes for infringements other than secret cartels or leniency programmes that enable them to grant a reduction of fines to natural persons.

2.  Member States shall ensure that a reduction of fines is granted only if the applicant:

(a)  fulfils the conditions laid down in Article 19 ;

(b)  discloses its participation in a secret cartel; and

(c)  submits evidence of the alleged secret cartel which represents significant added value for the purpose of proving an infringement covered by the leniency programme, relative to the evidence already in the national competition authority’s possession at the time of the application.

3.  Member States shall ensure that if the applicant ▌submits compelling evidence which the national competition authority uses ▌ to prove additional facts which lead to an increase in fines as compared to the fines that would otherwise have been imposed on the participants in the secret cartel, the national competition authority shall not take such additional facts into account when setting any fine to be imposed on the applicant for reduction of fines which provided this evidence.

Article 19

General conditions for leniency

Member States shall ensure that, in order to qualify for leniency for participation in secret cartels, the applicant is required to satisfy the following conditions:

(a)  it ended its involvement in the alleged secret cartel at the latest immediately following its leniency application, except for what would, in the competent national competition authority’s view, be reasonably necessary to preserve the integrity of its investigation;

(b)  it cooperates genuinely, fully, on a continuous basis and expeditiously with the national competition authority from the time of its application until the authority has closed its enforcement proceedings against all parties under investigation by adopting a decision or has otherwise terminated its enforcement proceedings; such cooperation includes:

(i)  providing the national competition authority promptly with all relevant information and evidence relating to the alleged secret cartel that comes into the applicant's possession or is accessible to it, in particular:

—  the name and address of the applicant;

—  the names of all other undertakings that participate or participated in the alleged secret cartel;

—  a detailed description of the alleged secret cartel, including the affected products, the affected territories, the duration, and the nature of the alleged secret cartel conduct;

—  information on any past or possible future leniency applications made to any other competition authorities or competition authorities of third countries in relation to the alleged secret cartel;

(ii)  remaining at the national competition authority’s disposal to answer any request that may contribute to the establishment of facts;

(iii)  making directors, managers and other members of staff available for interviews with the national competition authority and making reasonable efforts to make former ▌ directors, managers and other members of staff available for interviews with the national competition authority;

(iv)  not destroying, falsifying or concealing relevant information or evidence; and

(v)  not disclosing the fact of, or any of the content of, its leniency application before the national competition authority has issued objections in the enforcement proceedings before it, unless otherwise agreed; and

(c)  during the contemplation of making a leniency application to the national competition authority it must not have:

(i)  destroyed, falsified or concealed evidence of the alleged secret cartel; or

(ii)  disclosed the fact of, or any of the content of, its contemplated application, other than to any other competition authorities or competition authorities of third countries.

Article 20

Form of leniency statements

1.  Member States shall ensure that applicants are able to submit leniency statements, in relation to full or summary applications, in writing, and shall ensure that national competition authorities also have a system in place that enables them to accept such statements either in oral form or by other means that permit applicants not to take possession, custody, or control of such submitted statements.

2.  If requested by the applicant, the national competition authority shall acknowledge the receipt of the full or summary application in writing, stating the date andtime of receipt.

3.  Applicants shall be able to submit leniency statements in relation to full or summary applications in the official language, or one of the official languages, of the Member State of the national competition authority concerned, or in another official language of the Union bilaterally agreed between the national competition authority and the applicant.

Article 21

Markers for applications for immunity from fines

1.  Member States shall ensure that undertakings wishing to apply for immunity from fines may be initially granted a place in the queue for leniency, where they so request, for a period ▌specified on a case-by-case basis by the national competition authority, in order for the applicant to gather the necessary information and evidence in order to meet the relevant evidential threshold for immunity from fines.

2.  Member States shall ensure that national competition authorities have discretion whether or not to grant the request pursuant to paragraph 1.

An undertaking submitting such a request shall provide information, where available, to the national competition authority, such as:

(a)  the name and address of the applicant;

(b)  the basis for the concern which led to the request;

(c)  the names of all other undertakings that participate or participated in the alleged secret cartel;

(d)  the affected products and territories;

(e)  the duration and the nature of the alleged secret cartel conduct;

(f)  information on any past or possible future leniency applications made to any other competition authorities or competition authorities of third countries in relation to the alleged secret cartel.

3.  Member States shall ensure that any information and evidence provided by the applicant within the period specified in accordance with paragraph 1 is deemed to have been submitted at the time of the initial request.

4.  The applicant shall be able to submit a request pursuant to paragraph 1 in the official language or one of the official languages of the Member State of the national competition authority concerned or in another official language of the Union bilaterally agreed between the national competition authority and the applicant.

5.  Member States may also provide for the possibility for undertakings wishing to make an application for the reduction of fines to request initially a place in the queue for leniency.

Article 22

Summary applications

1.  Member States shall ensure that national competition authorities accept summary applications from applicants that have applied to the Commission for leniency, either by applying for a marker or by submitting a full application in relation to the same alleged secret cartel, provided that those applications cover more than three Member States as affected territories.

2.  Summary applications shall consist of a short description of each of the following ▌:

(a)  the name and address of the applicant;

(b)  the names of other parties to the alleged secret cartel;

(c)  the affected products and territories;

(d)  the duration and the nature of the alleged secret cartel conduct;

(e)  the Member State(s) where the evidence of the alleged secret cartel is likely to be located; and

(f)  information on any past or possible future leniency applications made to any other competition authorities or competition authorities of third countries in relation to the alleged secret cartel.

3.   Where the Commission receives a full application and national competition authorities receive summary applications in relation to the same alleged cartel, the Commission shall be the main interlocutor of the applicant, in the period before clarity has been gained as to whether the Commission intends to pursue the case in whole or in part, in particular in providing instructions to the applicant on the conduct of any further internal investigations. In this period, the Commission shall inform the national competition authorities concerned about the state of play at their request.

Member States shall ensure that national competition authorities may request the applicant to provide specific clarifications only regarding the items set out in paragraph 2 before they require the submission of a full application pursuant to paragraph 5.

4.  Member States shall ensure that national competition authorities which receive summary applications verify whether they have already received a ▌ summary or full application from another applicant in relation to the same alleged secret cartel at the time of receipt of such applications. If a national competition authority has not received such an application from another applicant and considers the summary application to fulfil the requirements of paragraph 2, it shall inform the applicant accordingly.

5.  Member States shall ensure that, once the Commission has informed the national competition authorities concerned that it does not intend to pursue the case in whole or in part, applicants are given the opportunity to submit full applications to the national competition authorities concerned. Only in exceptional circumstances, when strictly necessary for case delineation or case allocation, may a national competition authority request the applicant to submit the full application before the Commission has informed the national competition authorities concerned that it does not intend to pursue the case in whole or in part. The national competition authorities shall have the power to specify a reasonable period within which the applicant is to submit the full application together with the corresponding evidence and information. This is without prejudice to the right of the applicant to voluntarily submit a full application at an earlier stage.

6.  Member States shall ensure that if the applicant submits the full application in accordance with paragraph 5, within the period specified by the national competition authority, the full application is deemed to have been submitted at the time of the summary application, provided that the summary application covers the same affected product(s) and territory(ies), as well as the same duration of the alleged secret cartel, as the leniency application filed with the Commission, which may have been updated.

Article 23

Interplay between applications for immunity from fines and sanctions on natural persons

1.  Member States shall ensure that current and former directors, managers and other members of staff of applicants for immunity from fines to competition authorities are fully protected from sanctions imposed in administrative and non-criminal judicial proceedings, in relation to their involvement in the secret cartel covered by the application for immunity from fines, for violations of national laws that pursue predominantly the same objectives to those pursued by Article 101 TFEU, if:

(a)  the application for immunity from fines of the undertaking to the competition authority pursuing the case fulfils the requirements set out in points (b) and (c) of Article 17(2);

(b)  those current and former directors, managers and other members of staff actively cooperate in this respect with the competition authority pursuing the case; and

(c)  the application for immunity from fines of the undertaking predates the time when those current or former directors, managers and other members of staff concerned were made aware by the competent authorities of the Member States of the proceedings leading to the imposition of sanctions referred to in this paragraph.

2.  Member States shall ensure that current and former directors, managers and other members of staff of applicants for immunity from fines to competition authorities are protected from sanctions imposed in criminal proceedings, in relation to their involvement in the secret cartel covered by the application for immunity from fines, for violations of national laws that pursue predominantly the same objectives to those pursued by Article 101 TFEU, if they meet the conditions set out in paragraph 1 and actively cooperate with the competent prosecuting authority. If the condition of cooperation with the competent prosecuting authority is not fulfilled, that competent prosecuting authority may proceed with the investigation.

3.  In order to ensure conformity with the existing basic principles of their legal system, , by way of derogation from paragraph 2, Member States may provide that the competent authorities are able not to impose a sanction or only to mitigate the sanction to be imposed in criminal proceedings to the extent that the contribution of the individuals, referred to in paragraph 2, to the detection and investigation of the secret cartel outweighs the interest in prosecuting and/or sanctioning those individuals.

4.  In order to allow the protection referred to in paragraphs 1, 2 and 3 to function in situations where more than one jurisdiction is involved, Member States shall provide that in cases where the competent sanctioning or prosecuting authority is in a different jurisdiction than that of the jurisdiction of the competition authority pursuing the case, the necessary contacts between them shall be ensured by the national competition authority of the jurisdiction of the competent sanctioning or prosecuting authority.

5.  This Article is without prejudice to the right of victims who have suffered harm caused by an infringement of competition law to claim full compensation for that harm, in accordance with Directive 2014/104/EU.

CHAPTER VII

MUTUAL ASSISTANCE

Article 24

Cooperation between national competition authorities

1.  Member States shall ensure that where national administrative competition authorities carry out an inspection or interview on behalf of and for the account of other national competition authorities pursuant to Article 22 of Regulation (EC) No 1/2003, officials and other accompanying persons authorised or appointed by the applicant national competition authority shall be permitted to attend and actively assist the requested national competition authority, under the supervision of the officials of the requested national competition authority, in the inspection or interview when the requested national competition authority exercises the powers referred to in Articles 6, 7 and 9 of this Directive.

2.  Member States shall ensure that national administrative competition authorities are empowered in their own territory to exercise the powers referred to in Articles 6 to9 of this Directive, in accordance with their national law on behalf of and for the account of other national competition authorities in order to establish whether there has been a failure by undertakings or associations of undertakings to comply with the investigative measures and decisions of the applicant national competition authority, as referred to in Articles 6 and 8 to 12 of this Directive. The applicant national competition authority and the requested national competition authority shall have the power to exchange and to use information in evidence for this purpose, subject to the safeguards set out in Article 12 of Regulation (EC) No 1/2003.

Article 25

Requests for the notification of preliminary objections and other documents

Without prejudice to any other form of notification made by an applicant authority in accordance with the rules in force in its Member State, Member States shall ensure that at the request of the applicant authority, the requested authority shall notify to the addressee on behalf of the applicant authority:

(a)  any preliminary objections to the alleged infringement of Article 101 or 102 TFEU and any decisions applying those Articles ▌;

(b)  any other procedural act adopted in the context of enforcement proceedings which should be notified in accordance with national law; and

(c)  any other relevant documents related to the application of Article 101 or 102 TFEU, including documents which relate to the enforcement of decisions imposing fines or periodic penalty payments.

Article 26

Requests for the enforcement of decisions imposing fines or periodic penalty payments

1.  Member States shall ensure that at the request of the applicant authority, the requested authority shall enforce decisions imposing fines or periodic penalty payments adopted in accordance with Articles 13 and 16 by the applicant authority. This shall apply only to the extent that, after having made reasonable efforts in its own territory, the applicant authority has ascertained that the undertaking or association of undertakings against which the fine or periodic penalty payment is enforceable ▌ does not have sufficient assets in the Member State of the applicant authority to enable recovery of such fine or periodic penalty.

2.  For cases not covered by paragraph 1 of this Article, in particular cases where the undertaking or association of undertakings against which the fine or periodic penalty payment is enforceable is not established in the Member State of the applicant authority, Member States shall provide that the requested authority may enforce decisions imposing fines or periodic penalty payments adopted in accordance with Articles 13 and 16 by the applicant authority, where the applicant authority so requests.

Point (d) of Article 27(3) shall not apply for the purposes of this paragraph.

3.  The applicant authority may only request the enforcement of a final decision.

4.  Questions regarding limitation periods for the enforcement of fines or periodic penalty payments shall be governed by the national law of the Member State of the applicant authority.

Article 27

General principles of cooperation

1.  Member States shall ensure that the requests as referred to in Articles 25 and 26 are executed by the requested authority in accordance with the national law of the Member State of the requested authority.

2.  Requests referred to in Articles 25 and 26 shall be executed without undue delay by means of a uniform instrument which shall be accompanied by a copy of the act to be notified or enforced. Such uniform instrument shall indicate:

(a)  the name, known address of the addressee, and any other relevant information for the identification of the addressee;

(b)  a summary of the relevant facts and circumstances;

(c)  a summary of the attached copy of the act to be notified or enforced;

(d)  the name, address and other contact details of the requested authority; and

(e)  the period within which notification or enforcement should be effected, such as statutory deadlines or limitation periods.

3.  For requests referred to in Article 26, in addition to the requirements set out in paragraph 2 of this Article, the uniform instrument shall provide the following:

(a)  information about the decision permitting enforcement in the Member State of the applicant authority;

(b)  the date when the decision became final;

(c)  the amount of the fine or periodic penalty payment; and

(d)  information showing the reasonable efforts made by the applicant authority to enforce the decision in its own territory.

4.  The uniform instrument permitting enforcement by the requested authority shall constitute the sole basis for the enforcement measures taken by the requested authority, subject to the requirements of paragraph 2. It shall not be subject to any act of recognition, supplementing or replacement in the Member State of the requested authority. The requested authority shall take all necessary measures for the execution of this request, unless the requested authority invokes paragraph 6.

5.  The applicant authority shall ensure that the uniform instrument is sent to the requested authority in the official language, or in one of the official languages, of the Member State of the requested authority, unless the requested authority and the applicant authority bilaterally agree on a case-by-case basis that the uniform instrument may be sent in another language. Where required under the national law of the Member State of the requested authority, the applicant authority shall provide a translation of the act to be notified or the decision permitting enforcement of the fine or periodic penalty payment into the official language, or into one of the official languages, of the Member State of the requested authority. This shall be without prejudice to the right of the requested authority and applicant authority to bilaterally agree, on a case-by-case basis, that such translation may be provided in a different language.

6.  The requested authority shall not be obliged to execute a request referred to in Article 25 or 26 if:

(a)  the request does not comply with the requirements of this Article; or

(b)  the requested authority is able to demonstrate reasonable grounds showing how the execution of the request would be manifestly contrary to public policy in the Member State in which enforcement is sought.

If the requested authority intends to refuse a request for assistance referred to in Article 25 or 26 or requires additional information, it shall contact the applicant authority.

7.  Member States shall ensure that, where requested by the requested authority, the applicant authority bears all reasonable additional costs in full, including translation, labour and administrative costs, in relation to actions taken as referred to in Article 24 or 25.

8.  The requested authority may recover the full costs incurred in relation to actions taken as referred to in Article 26 from the fines or periodic penalty payments it has collected on behalf of the applicant authority, including translation, labour and administrative costs. If the requested authority is unsuccessful in collecting the fines or periodic penalty payments, it may request the applicant authority to bear the costs incurred.

Member States are free to provide that the requested authority may also recover the costs incurred in relation to the enforcement of such decisions from the undertaking against which the fine or periodic penalty payment is enforceable.

The requested authority shall recover the amounts due in the currency of its Member State, in accordance with the laws, regulations and administrative procedures or practices in that Member State.

The requested authority shall, if necessary, in accordance with its national law and practice, convert the fines or periodic penalty payments into the currency of the Member State of the requested authority at the rate of exchange applying on the date on which the fines or periodic penalty payments were imposed.

Article 28

Disputes concerning requests for notification or enforcement of decisions imposing fines or periodic penalty payments

1.  Disputes shall fall within the competence of the competent bodies of the Member State of the applicant authority, and shall be governed by the law of that Member State, where they concern:

a)  the lawfulness of an act to be notified in accordance with Article 25 or a decision to be enforced in accordance with Article 26; and

b)  the lawfulness of the uniform instrument permitting enforcement in the Member State of the requested authority.

2.  Disputes concerning the enforcement measures taken in the ▌Member State of the requested authority or concerning the validity of a notification made by the requested authority shall fall within the competence of the competent bodies of the ▌Member State of the requested authority and shall be governed by the law of that Member State.

CHAPTER VIII

LIMITATION PERIODS

Article 29

Rules on limitation periods for the imposition of fines and periodic penalty payments

1.  Member States shall ensure that the limitation periods for the imposition of fines or periodic penalty payments by the national competition authorities pursuant to Articles 13 and 16 shall be suspended or interrupted for the duration of enforcement proceedings before national competition authorities of other Member States or the Commission in respect of an infringement concerning the same agreement, decision of an association, concerted practice or other conduct prohibited by Article 101 or 102 TFEU.

The suspension of the limitation period shall start, or the interruption of the limitation period shall take place, from the notification of the first formal investigative measure to at least one undertaking subject to the enforcement proceedings. It shall apply to all undertakings or associations of undertakings which have participated in the infringement.

The suspension or interruption shall end on the day the competition authority concerned closes its enforcement proceedings by taking a decision referred to in Article 10, 12 or 13 of this Directive or pursuant to Article 7, 9 or 10 of Regulation (EC) No 1/2003, or has concluded that there are no grounds for further action on its part. The duration of such suspension or interruption is without prejudice to absolute limitation periods provided for under national law.

2.  The limitation period for the imposition of fines or periodic penalty payments by a national competition authority shall be suspended or interrupted for as long as the decision of that national competition authority is the subject of proceedings pending before a review court.

3.  The Commission shall ensure that the notification of the first formal investigative measure received from a national competition authority under Article 11(3) of Regulation 1/2003 is made available to the other national competition authorities within the European Competition Network.

CHAPTER IX

GENERAL PROVISIONS

Article 30

Role of national administrative competition authorities before national courts

1.  Member States which designate both a national administrative competition authority ▌ and a national judicial competition authority as being responsible for the application of Articles 101 and 102 TFEU shall ensure that actions before the national judicial competition authority can be brought directly by the national administrative competition authority.

2.  To the extent that national courts act in proceedings brought against ▌decisions taken by national competition authorities exercising the powers referred to in Chapter IV and Articles 13 and 16 of this Directive for the application of Article 101 or 102 TFEU, including the enforcement of fines and periodic penalty payments imposed in that respect, Member States shall ensure that the national administrative competition authority is of its own right fully entitled to participate as appropriate as a prosecutor, defendant or respondent in those proceedings and to enjoy the same rights as such public parties to these proceedings.

3.  The national administrative competition authority shall be empowered with the same rights as set out in paragraph 2 to appeal against:

(a)  decisions of national courts pronouncing on decisions taken by national competition authorities as referred to in Chapter IV and Articles 13 and 16 of this Directive, concerning the application of Article 101 or 102 TFEU, including the enforcement of fines and periodic penalty payments imposed in that respect; and

(b)  the refusal of a national judicial authority to grant prior authorisation of an inspection referred to in Articles 6 and 7 of this Directive, to the extent that such an authorisation is required.

Article 31

Access to file by parties and limitations on the use of information

1.  Member States may provide that where a national competition authority requires a natural person to provide information on the basis of measures referred to in point (e) of Article 6 (1), Article 8 or Article 9, that information shall not be used in evidence to impose sanctions on that natural person or on her or his close relatives.

2.  Member States shall ensure that national competition authorities, their officials, staff and other persons working under the supervision of those authorities, do not disclose information that was acquired on the basis of the powers referred to in this Directive and that is of the kind covered by the obligation of professional secrecy, except where such disclosure is allowed under national law.

3.  Member States shall ensure that access ▌to leniency statements or settlement submissions is only granted to parties subject to the relevant proceedings and only for the purposes of exercising their rights of defence ▌.

4.  Member States shall ensure that the party having obtained access to the file of the enforcement proceedings of the national competition authorities may only use information taken from leniency statements and settlement submissions where necessary to exercise its rights of defence in proceedings before national courts in cases that are directly related to the case for which access has been granted, and only where such proceedings concern:

(a)  the allocation between cartel participants of a fine imposed jointly and severally on them by a national competition authority; or

(b)  the review of a decision by which a national competition authority found an infringement of Article 101 or 102 TFEU or national competition law provisions.

5.  Member States shall ensure that the following categories of information obtained by a party during enforcement proceedings before a national competition authority shall not be used by that party in proceedings before national courts before the national competition authority has closed its enforcement proceedings with respect to all parties under investigation by adopting a decision referred to in Article 10 or Article 12 or otherwise has terminated its proceedings:

(a)  information that was prepared by other natural or legal persons specifically for the enforcement proceedings of the national competition authority; ▌

(b)  information that the national competition authority has drawn up and sent to the parties in the course of its enforcement proceedings; and

(c)  settlement submissions that have been withdrawn.

6.  Member States shall ensure that leniency statements shall only be exchanged between national competition authorities pursuant to Article 12 of Regulation (EC) No 1/2003 either:

(a)  with the consent of the applicant; or

(b)  where the national competition authority receiving the leniency statement has also received a leniency application relating to the same infringement from the same applicant as the national competition authority transmitting the leniency statement, provided that, at the time the leniency statement is transmitted, it is not open to the applicant to withdraw the information which it has submitted to the national competition authority receiving the leniency statement.

7.  The form in which leniency statements are submitted pursuant to Article 20 shall not affect the application of paragraphs 3 to 6 of this Article.

Article 32

Admissibility of evidence before national competition authorities

Member States shall ensure that the types of proof that are admissible as evidence before a national competition authority include documents, oral statements, electronic messages, recordings and all other objects containing information, irrespective of the form it takes and the medium on which information is stored.

Article 33

The operation of European Competition Network

1.  The costs incurred by the Commission in connection with the maintenance and the development of the central information system of the European Competition Network (European Competition Network System) and in connection with cooperation within the European Competition Network shall be borne by the general budget of the Union within the limit of the available appropriations.

2.  The European Competition Network shall be able to develop and, where appropriate, publish best practices and recommendations on matters such as independence, resources, powers, fines and mutual assistance.

CHAPTER X

FINAL PROVISIONS

Article 34

Transposition

1.  Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by … [two years from the entry into force of this Directive] ▌. They shall immediately inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.  Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.

Article 35

Review

By ... [six years after the date of adoption of this Directive], the Commission shall present a report to the European Parliament and to the Council on the transposition and implementation of this Directive. When appropriate, the Commission may review this Directive and, if necessary, present a legislative proposal.

Article 36

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 37

Addressees

This Directive is addressed to the Member States.

Done at Brussels,

For the European Parliament For the Council

The President The President

ANNEX TO THE LEGISLATIVE RESOLUTION

Declaration of the Commission

The Commission takes note of the text of Article 11 agreed by the European Parliament and the Council on interim measures.

Interim measures can be a key tool for competition authorities to ensure that competition is not harmed while an investigation is on-going.

With a view to enabling competition authorities to deal more effectively with developments in fast-moving markets, the Commission commits that it will undertake an analysis of whether there are means to simplify the adoption of interim measures within the European Competition Network within two years from the date of transposition of this Directive. The results of this will be presented to the European Parliament and the Council.

(1)OJ C 345, 13.10.2017, p. 70
(2) Position of the European Parliament of 14 November 2018.
(3)Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).
(4)Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ L 76, 22.3.2005, p. 16).
(5) Decision (EU) 2015/2240 of the European Parliament and of the Council of 25 November 2015 establishing a programme on interoperability solutions and common frameworks for European public administrations, businesses and citizens (ISA2 programme) as a means for modernising the public sector (OJ L 318, 4.12.2015, p.1).
(6)OJ C 369, 17.12.2011, p. 14.


European Electronic Communications Code ***I
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Resolution
Consolidated text
European Parliament legislative resolution of 14 November 2018 on the proposal for a directive of the European Parliament and of the Council establishing the European Electronic Communications Code (EECC) (recast) (COM(2016)0590 – C8-0379/2016 – 2016/0288(COD))
P8_TA-PROV(2018)0453A8-0318/2017

(Ordinary legislative procedure – recast)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2016)0590),

–  having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8‑0379/2016),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to Protocol (No 1) on the role of national parliaments in the European Union,

–  having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Swedish Parliament, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the opinion of the European Economic and Social Committee of 26 January 2017(1),

–  having regard to the opinion of the Committee of the Regions of 8 February 2017(2),

–  having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(3),

–  having regard to the letter of 17 October 2016 from the Committee on Legal Affairs to the Committee on Industry, Research and Energy in accordance with Rule 104(3) of its Rules of Procedure,

–  having regard to the provisional agreement approved by the committee responsible under Rule 69f(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 29 June 2018 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

–  having regard to Rules 104 and 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Industry, Research and Energy and the opinions of the Committee on the Internal Market and Consumer Protection, the Committee on Culture and Education and the Committee on Civil Liberties, Justice and Home Affairs (A8-0318/2017),

A.  whereas, according to the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission, the Commission proposal does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance;

1.  Adopts its position at first reading hereinafter set out, taking into account the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Position of the European Parliament adopted at first reading on 14 November 2018 with a view to the adoption of Directive (EU) 2018/… of the European Parliament and of the Council establishing the European Electronic Communications Code (Recast)

P8_TC1-COD(2016)0288


(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee(4),

Having regard to the opinion of the Committee of the Regions(5),

Acting in accordance with the ordinary legislative procedure(6),

Whereas:

(1)  Directives 2002/19/EC(7), 2002/20/EC(8), 2002/21/EC(9) and 2002/22/EC(10) of the European Parliament and of the Council have been substantially amended. Since further amendments are to be made, those Directives should be recast in the interests of clarity.

(2)  The functioning of the five Directives which are part of the existing regulatory framework for electronic communications networks and services, namely Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC, and Directive 2002/58/EC of the European Parliament and of the Council(11), is subject to periodic review by the Commission, with a view, in particular, to determining the need for modification in light of technological and market developments.

(3)  In its communication or 6 May 2015 setting out a Digital Single Market Strategy for Europe, the Commission stated that its review of the telecommunications framework would focus on measures that aim to provide incentives for investment in high‑speed broadband networks, bring a more consistent internal market approach to radio spectrum policy and management, deliver conditions for a true internal market by tackling regulatory fragmentation, ensure effective protection of consumers, a level playing field for all market players and consistent application of the rules, as well as provide a more effective regulatory institutional framework.

(4)  This Directive is part of a "Regulatory Fitness" (REFIT) exercise, the scope of which includes four Directives, namely 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC, and Regulation (EC) No 1211/2009 of the European Parliament and of the Council(12). Each of those Directives contains measures applicable to providers of electronic communications networks and of electronic communications services, consistently with the regulatory history of the sector under which undertakings were vertically integrated, namely, active in both the provision of networks and of services. The review offers an occasion to recast the four Directives in order to simplify the current structure with a view to reinforcing its consistency and accessibility in relation to the REFIT objective. It also offers the possibility to adapt the structure to the new market reality, where the provision of communications services is no longer necessarily bundled to the provision of a network. As provided in the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(13), recasting consists in the adoption of a new legal act which incorporates in a single text both the substantive amendments which it makes to an earlier act and the unchanged provisions of that act. The proposal for recasting deals with the substantive amendments which it makes to an earlier act, and on a secondary level, includes the codification of the unchanged provisions of the earlier act with those substantive amendments.

(5)  This Directive creates a legal framework to ensure freedom to provide electronic communications networks and services, subject only to the conditions laid down in this Directive and to any restrictions in accordance with Article 52(1) of the Treaty on the Functioning of the European Union (TFEU), in particular measures regarding public policy, public security and public health, and consistent with Article 52(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’).

(6)  This Directive is without prejudice to the possibility for each Member State to take the necessary measures to ensure the protection of its essential security interests, to safeguard public policy ▌ and public security, and to permit the investigation, detection and prosecution of criminal offences, taking into account that any limitation to the exercise of the rights and freedoms recognised by the Charter, in particular in Articles 7, 8 and 11 thereof, such as limitations regarding the processing of data, are to be provided for by law, respect the essence of those rights and freedoms and be subject to the principle of proportionality, in accordance with Article 52(1) of the Charter.

(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 means of a single Directive, with the exception of matters better dealt with through directly applicable rules established by means of regulations. It is necessary to separate the regulation of electronic communications networks and services from the regulation of content. Therefore, this Directive does not 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 without prejudice to measures taken at Union or national level in respect of such services, in accordance 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 Council(14). 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. The separation between the regulation of electronic communications and the regulation of content does not affect the taking into account of the links existing between them, in particular in order to guarantee media pluralism, cultural diversity and consumer protection. Within the limits of their competences, competent authorities should contribute to ensuring the implementation of policies aiming to promote those objectives.

(8)  This Directive does not affect the application to radio equipment of Directive 2014/53/EU of the European Parliament and of the Council(15), but does cover car radio and consumer radio receivers, and consumer digital television equipment.

(9)  In order to allow national regulatory and other competent authorities to meet the objectives set out in this Directive, in particular concerning end-to-end interoperability, the scope of the Directive should cover certain aspects of radio equipment as defined in Directive 2014/53/EU and consumer equipment used for digital television, in order to facilitate access for end-users with disabilities. It is important for national regulatory and other competent authorities to encourage network operators and equipment manufacturers to cooperate in order to facilitate access by end-users with disabilities to electronic communications services. The non-exclusive use of radio spectrum for the self-use of radio terminal equipment, although not related to an economic activity, should also be the subject of this Directive in order to ensure a coordinated approach with regard to their authorisation regime.

(10)  Certain electronic communications services under this Directive could also fall within the scope of the definition of ‘information society service’ set out in Article 1 of Directive (EU) 2015/1535 of the European Parliament and of the Council(16). The provisions of that Directive that govern information society services apply to those electronic communications services to the extent that this Directive or other Union legal acts do not contain more specific provisions applicable to electronic communications services. However, electronic communications services such as voice telephony, messaging services and electronic mail services are covered by this Directive. The same undertaking, for example an internet service provider, can offer both an electronic communications service, such as access to the internet, and services not covered by this Directive, such as the provision of web-based and not communications-related content.

(11)  The same undertaking, for example a cable operator, can offer both an electronic communications service, such as the conveyance of television signals, and services not covered under this Directive, such as the commercialisation of an offer of sound or television broadcasting content services, and therefore additional obligations can be imposed on such an undertaking in relation to its activity as a content provider or distributor, in accordance with provisions other than those of this Directive, without prejudice to the conditions laid in an annex to this Directive.

(12)  The regulatory framework should cover the use of radio spectrum by all electronic communications networks, including the emerging self-use of radio spectrum by new types of networks consisting exclusively of autonomous systems of mobile radio equipment that is connected via wireless links without a central management or centralised network operator, and not necessarily within the exercise of any specific economic activity. In the developing 5G wireless communications environment, such networks are likely to develop in particular outside buildings and on the roads, for transport, energy, research and development, eHealth, public protection and disaster relief, the Internet of Things, machine‑to‑machine and connected cars. As a result, the application by Member States, based on Article 7 of Directive 2014/53/EU, of additional national requirements regarding the putting into service or use of such radio equipment, or both, in relation to the effective and efficient use of radio spectrum and avoidance of harmful interference should reflect the principles of the internal market.

(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 such as latency, availability and reliability are becoming increasingly important. The current response towards that demand is to bring optical fibre closer and closer to the user, and future 'very high capacity networks' require performance parameters which are equivalent to those that a network based on optical fibre elements at least up to the distribution point at the serving location can deliver. In the case of fixed-line connection, this corresponds to network performance equivalent to that achievable by an optical fibre installation up to a multi-dwelling building, considered to be the serving location. In the case of wireless connection, this corresponds to network performance similar to that achievable based on an optical fibre installation up to the base station, considered to be 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 a wireless network could be considered as providing similar network performance. In accordance with the principle of technology neutrality, other technologies and transmission media should not be excluded, where they compare with that baseline scenario in terms of their capabilities. The roll-out of such 'very high capacity networks' is likely to further increase the capabilities of networks and pave the way for the roll-out of future wireless network generations based on enhanced air interfaces and a more densified network architecture.

(14)  Definitions need to be adjusted to ensure that they are in line with the principle of technology neutrality and to keep pace with technological development, including new forms of network management such as through software emulation or software-defined networks. Technological and market evolution has brought networks to move to internet protocol (IP) technology, and enabled end-users to choose between a range of competing voice service providers. Therefore, the term 'publicly available telephone service', which is exclusively used in Directive 2002/22/EC and widely perceived as referring to traditional analogue telephone services, should be replaced by the more current and technological neutral term 'voice communications service'. Conditions for the provision of a service should be separated from the actual definitional elements of a voice communications service, namely, a publicly available electronic communications service for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international ▌ numbering plan, whether such a service is based on circuit switching or packet switching technology. It is the nature of such a service that it is bidirectional, enabling both parties to communicate. A service which does not fulfil all those conditions, such as for example a ‘click-through’ application on a customer service website, is not such a service. Voice communications services also include means of communication specifically intended for ▌ end-users with disabilities using text relay or total conversation services.

(15)  The services used for communications purposes, and the technical means of their delivery, have evolved considerably. End-users increasingly substitute traditional voice telephony, text messages (SMS) and electronic mail conveyance services by functionally equivalent online services such as Voice over IP, messaging services and web-based e-mail services. In order to ensure that end-users and their rights are effectively and equally protected when using functionally equivalent services, a future-oriented definition of electronic communications services should not be purely based on technical parameters but rather build on a functional approach. The scope of necessary regulation should be appropriate to achieve its public interest objectives. While "conveyance of signals" remains an important parameter for determining the services falling into the scope of this Directive, the definition should cover also other services that enable communication. From an end-user's perspective it is not relevant whether a provider conveys signals itself or whether the communication is delivered via an internet access service. The definition of electronic communications services should therefore contain three types of services which may partly overlap, that is to say internet access services as defined in point (2) of Article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council(17), interpersonal communications services as defined in this Directive, and services consisting wholly or mainly in the conveyance of signals. The definition of electronic communications service should eliminate ambiguities observed in the implementation of the definition as it existed prior to the adoption of this Directive and allow a calibrated provision‑by-provision application of the specific rights and obligations contained in the framework to the different types of services. The processing of personal data by electronic communications services, whether as remuneration or otherwise, should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council(18).

(16)  In order to fall within the scope of the definition of electronic communications service, a service needs to be provided normally in exchange for remuneration. In the digital economy, market participants increasingly consider information about users as having a monetary value. Electronic communications services are often supplied to the end-user not only for money, but increasingly and in particular for the provision of personal data or other data. The concept of remuneration should therefore encompass situations where the provider of a service requests and the end-user knowingly provides personal data within the meaning of Regulation (EU) 2016/679 or other data directly or indirectly to the provider. It should also encompass situations where the end-user allows access to information without ▌ actively supplying it, such as personal data, including the IP address, or other automatically generated information, such as information collected and transmitted by a cookie ▌. In line with the case-law of the Court of Justice of the European Union (Court of Justice) on Article 57 TFEU(19), remuneration also exists within the meaning of the TFEU if the service provider is paid by a third party and not by the service recipient. The concept of remuneration should therefore also encompass situations in which the end‑user is exposed to advertisements as a condition for gaining access to the service, or situations in which the service provider monetises personal data it has collected in accordance with Regulation (EU) 2016/679 ▌.

(17)  Interpersonal communications services are services that enable interpersonal and interactive exchange of information, covering services like traditional voice calls between two individuals but also all types of emails, messaging services, or group chats. Interpersonal communications services only cover communications between a finite, that is to say not potentially unlimited, number of natural persons, which is determined by the sender of the communication. Communications involving legal persons should fall within the scope of the definition where natural persons act on behalf of those legal persons or are involved at least on one side of the communication. Interactive communication entails that the service allows the recipient of the information to respond. Services which do not meet those requirements, such as linear broadcasting, video on demand, websites, social networks, blogs, or exchange of information between machines, should not be considered to be interpersonal communications services. In exceptional circumstances a service should not be considered to be an interpersonal communications service if the interpersonal and interactive communication facility is a minor and purely ancillary feature to another service and for objective technical reasons cannot be used without that principal service, and its integration is not a means to circumvent the applicability of the rules governing electronic communications services. As elements of an exemption from the definition the terms 'minor' and 'purely ancillary' should be interpreted narrowly and from an objective end‑user's perspective. An interpersonal communications feature could be considered to be minor where its objective utility for an end-user is very limited and where it is in reality barely used by end-users. An example of a feature that could be considered to fall outside the scope of the definition of interpersonal communications services might be, in principle, a communication channel in online games, depending on the features of the communication facility of the service.

(18)  Interpersonal communications services using numbers from national and international ▌ numbering plans connect with publicly assigned numbering resources. Those number‑based interpersonal communications services comprise both services to which end-users numbers are assigned for the purpose of ensuring end-to-end connectivity and services enabling end-users to reach persons to whom such numbers have been assigned. The mere use of a number as an identifier should not be considered to be equivalent to the use of a number to connect with publicly assigned numbers and should therefore, in itself, not be considered to be sufficient to qualify a service as a number-based interpersonal communications service. Number-independent interpersonal communications services should be subject to obligations only where public interests require that specific regulatory obligations apply to all types of interpersonal communications services, regardless of whether they use numbers for the provision of their service. It is justified to treat number-based interpersonal communications services differently, as they participate in, and hence also benefit from, a publicly assured interoperable ecosystem.

(19)  The network termination point represents a boundary for regulatory purposes between the regulatory framework for electronic communications networks and services and the regulation of telecommunications terminal equipment. Defining the location of the network termination point is the responsibility of the national regulatory authority. In light of the practice of national regulatory authorities, and given the variety of fixed and wireless topologies, the Body of European Regulators for Electronic Communications (ʻBERECʼ) should, in close cooperation with the Commission, adopt guidelines on common approaches to the identification of the network termination point, in accordance with this Directive, in various concrete circumstances.

(20)  Technical developments make it possible for end-users to access emergency services not only by voice calls but also by other interpersonal communications services. The concept of emergency communication should therefore cover all interpersonal communications services that allow such emergency services access. It builds on the emergency system elements already enshrined in Union law, namely a public safety answering point ('PSAP') and a most appropriate PSAP as defined in Regulation (EU) 2015/758 of the European Parliament and of the Council(20), and on emergency services as defined in Commission Delegated Regulation (EU) No 305/2013(21).

(21)  National regulatory and other competent authorities should have a harmonised set of objectives and principles to underpin their work, and should, where necessary, coordinate their actions with the authorities of other Member States and with BEREC in carrying out their tasks under this regulatory framework.

(22)  The tasks assigned to competent authorities by this Directive contribute to the fulfilment of broader policies in the areas of culture, employment, the environment, social cohesion and town and country planning.

(23)  The regulatory framework should, in addition to the existing three primary objectives of promoting competition, the internal market and end-user interests, pursue an additional connectivity objective, articulated in terms of outcomes: widespread access to and take-up of very high capacity networks for all citizens of the Union and Union businesses on the basis of reasonable price and choice, ▌effective and fair competition, ▌open innovation, ▌efficient use of radio spectrum, ▌common rules and predictable regulatory approaches in the internal market and ▌ the necessary sector-specific rules to safeguard the interests of citizens of the Union. For the Member States, the national regulatory and other competent authorities and the stakeholders, that connectivity objective translates, on the one hand, into aiming for the highest capacity networks and services economically sustainable in a given area, and, on the other, into pursuing territorial cohesion, in the sense of convergence in capacity available in different areas.

(24)  Progress towards the achievement of the general objectives of this Directive should be supported by a robust system of continuous assessment and benchmarking by the Commission of Member States with respect to the availability of very high capacity networks in all major socio-economic drivers such as schools, transport hubs and major providers of public services, and highly digitised businesses, the availability of uninterrupted 5G coverage for urban areas and major terrestrial transport paths, and the availability to all households in each Member State of electronic communications networks which are capable of providing at least 100 Mbps, and which are promptly upgradeable to gigabit speeds. To that end, the Commission should continue monitoring the performance of Member States, including, by way of an example, indexes that summarise relevant indicators on the Union’s digital performance and track the evolution of Member States in digital competitiveness, such as the Digital Economy and Society Index, and, where necessary, establish new methods and new objective, concrete and quantifiable criteria for benchmarking the effectiveness of Member States.

(25)  The principle that Member States should apply Union law in a technologically neutral fashion, that is to say that a national regulatory or other competent authority should neither impose nor discriminate in favour of the use of a particular type of technology, does not preclude the taking of proportionate steps to promote certain specific services where justified in order to attain the objectives of the regulatory framework, for example digital television as a means for increasing radio spectrum efficiency. Furthermore, that principle does not preclude taking into account that certain transmission media have physical characteristics and architectural features that can be superior in terms of quality of service, capacity, maintenance cost, energy efficiency, management flexibility, reliability, robustness and scalability, and, ultimately, performance, which can be reflected in actions taken with a view to pursuing the various regulatory objectives.

(26)  Both efficient investment and competition should be encouraged in tandem, in order to increase economic growth, innovation and consumer choice.

(27)  Competition can best be fostered through an economically efficient level of investment in new and existing infrastructure, complemented by regulation, where necessary, to achieve effective competition in retail services. An efficient level of infrastructure-based competition is the extent of infrastructure duplication at which investors can reasonably be expected to make a fair return based on reasonable expectations about the evolution of market shares.

(28)  It is necessary to give appropriate incentives for investment in new very high capacity networks that support innovation in content-rich internet services and strengthen the international competitiveness of the Union. Such networks have enormous potential to deliver benefits to consumers and businesses across the Union. It is therefore vital to promote sustainable investment in the development of those new networks, while safeguarding competition, as bottlenecks and barriers to entry remain at the infrastructure level, and boosting consumer choice through regulatory predictability and consistency.

(29)  This Directive aims to progressively reduce ex ante sector-specific rules as competition in the markets develops and, ultimately, to ensure that electronic communications are governed only by competition law. Considering that the markets for electronic communications have shown strong competitive dynamics in recent years, it is essential that ex ante regulatory obligations are ▌imposed only where there is no effective and sustainable competition on the ▌markets concerned. The objective of ex ante regulatory intervention is to produce benefits for end-users by making retail markets effectively competitive on a sustainable basis. Obligations at wholesale level should be imposed where otherwise one or more retail markets are not likely to become effectively competitive in the absence of those obligations. It is likely that national regulatory authorities are gradually, through the process of market analysis, able to find retail markets to be competitive even in the absence of wholesale regulation, especially taking into account expected improvements in innovation and competition. In such a case, the national regulatory authority should conclude that regulation is no longer needed at wholesale level, and assess the corresponding relevant wholesale market with a view to withdrawing ex ante regulation. In doing so, the national regulatory authority should take into account any leverage effects between wholesale and related retail markets which might require the removal of barriers to entry at the infrastructure level in order to ensure long-term competition at the retail level.

(30)  Electronic communications are becoming essential for an increasing number of sectors. The Internet of Things is an illustration of how the radio signal conveyance underpinning electronic communications continues to evolve and shape societal and business reality. To derive the greatest benefit from those developments, the introduction and accommodation of new wireless communications technologies and applications in radio spectrum management is essential. As other technologies and applications relying on radio spectrum are equally subject to growing demand, and can be enhanced by integrating or combining them with electronic communications, radio spectrum management should adopt, where appropriate, a cross-sectorial approach to improve the efficient use of radio spectrum.

(31)  Strategic planning, coordination and, where appropriate, harmonisation at Union level can help ensure that radio spectrum users derive the full benefits of the internal market and that Union interests can be effectively defended globally. For those purposes it should be possible to adopt multiannual radio spectrum policy programmes, where appropriate. The first such programme was established by Decision No 243/2012/EU of the European Parliament and of the Council(22), setting out policy orientations and objectives for the strategic planning and harmonisation of the use of radio spectrum in the Union. It should be possible for those policy orientations and objectives to refer to the availability and efficient use of radio spectrum necessary for the establishment and functioning of the internal market, in accordance with this Directive.

(32)  National borders are increasingly irrelevant in determining optimal radio spectrum use. Undue fragmentation amongst national policies ▌result in increased costs and lost market opportunities for radio spectrum users and slows down innovation to the detriment of the proper functioning of the internal market and prejudice to consumers and the economy as a whole.

(33)  The radio spectrum management provisions of this Directive should be consistent with the work of international and regional organisations dealing with radio spectrum management, such as the International Telecommunications Union (ITU) and the European Conference of Postal and Telecommunications Administrations (CEPT), in order to ensure the effective management of and harmonisation of the use of radio spectrum across the Union and between the Member States and other members of the ITU.

(34)  In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory and other competent authorities with a view to ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in Article 345 TFEU. National regulatory and other competent authorities should be in possession of all the necessary resources, in terms of staffing, expertise, and financial means, for the performance of their tasks.

(35)  Certain tasks pursuant to the Directive, such as ex ante market regulation, including the imposition of obligations for access and interconnection, and the resolution of disputes between undertakings are tasks which should be undertaken only by national regulatory authorities, namely, bodies which are independent both from the sector and from any external intervention or political pressure. Unless otherwise provided, Member States should be able to assign other regulatory tasks provided for in this Directive either to the national regulatory authorities or to other competent authorities. In the course of transposition, Member States should promote the stability of competences of the national regulatory authorities with regard to the assignment of tasks which resulted from the transposition of the Union electronic communications regulatory framework as amended in 2009, in particular those related to market competition or market entry. Where tasks are assigned to other competent authorities, those other competent authorities should seek to consult the national regulatory authorities before taking a decision. Pursuant to the principle of good cooperation, national regulatory and other competent authorities should exchange information for the exercise of their tasks.

(36)  This Directive does not include substantive provisions on open internet access or roaming and is without prejudice to the allocation of competences to national regulatory authorities in Regulation (EU) No 531/2012 of the European Parliament and of the Council(23) and in Regulation (EU) 2015/2120. However, this Directive provides, in addition, for national regulatory authorities to be competent for assessing and monitoring closely market access and competition issues which potentially affect the rights of end-users to an open internet access.

(37)  The independence of the national regulatory authorities was strengthened in the review of the electronic communications regulatory framework completed in 2009 in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions. To that end, express provision had to be made in national law to ensure that, in the exercise of its tasks, a national regulatory authority is protected against external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. Such outside influence makes a national legislative body unsuited to act as a national regulatory authority under the regulatory framework. For that purpose, rules had to be laid down at the outset regarding the grounds for the dismissal of the head of the national regulatory authority in order to remove any reasonable doubt as to the neutrality of that body and its imperviousness to external factors. In order to avoid arbitrary dismissals, dismissed members should have the right to request that the competent courts verify the existence of a valid reason to dismiss, among those provided for in this Directive. Such dismissals should relate only to the personal or professional qualifications of the head or member. It is important that national regulatory authorities have their own budget allowing them, in particular, to recruit a sufficient number of qualified staff. In order to ensure transparency, that budget should be published annually. Within the limits of their budget, they should have autonomy in managing their resources, human and financial. In order to ensure impartiality, Member States that retain ownership of, or control, undertakings contributing to the budget of the national regulatory or other competent authorities through administrative charges should ensure that there is effective structural separation of activities associated with the exercise of ownership or control from the exercise of control over the budget.

(38)  There is a need to further reinforce the independence of the national regulatory authorities to ensure the imperviousness of its head and members to external pressure, by providing minimum appointment qualifications, and a minimum duration for their mandate. Furthermore, to address the risk of regulatory capture, ensure continuity and enhance independence, Member States should consider limiting the possibility of renewing the mandates of the head or members of the board and set up an appropriate rotation scheme for the board and the top management. This could be arranged, for instance, by appointing the first members of the collegiate body for different periods in order for their mandates, as well as that of their successors, not to lapse at the same moment.

(39)  National regulatory authorities should be accountable for, and should be required to report on, the way in which they are exercising their tasks. That obligation should normally take the form of an annual reporting obligation rather than ad hoc reporting requests, which, if disproportionate, could limit their independence or hinder them in the exercise of their tasks. Indeed, according to the case-law of the Court of Justice(24), extensive or unconditional reporting obligations may indirectly affect the independence of an authority.

(40)  Member States should notify the Commission of the identity of the national regulatory and other competent authorities. For authorities competent for granting rights of way, it should be possible to fulfil the notification requirement by a reference to the single information point established pursuant to Directive 2014/61/EU of the European Parliament and of the Council(25).

(41)  The least onerous authorisation system possible should be used to allow the provision of electronic communications networks and services in order to stimulate the development of new communications services and pan-European communications networks and services and to allow service providers and consumers to benefit from the economies of scale of the internal market.

(42)  The benefits of the internal market to service providers and end-users can be best achieved by general authorisation of electronic communications networks and of electronic communications services other than number-independent interpersonal communications services, without requiring any explicit decision or administrative act by the national regulatory authority and by limiting any procedural requirements to a declaratory notification only. Where Member States require notification by providers of electronic communications networks or services when they start their activities, such notification should not entail administrative cost for the providers and could be made available via an entry point at the website of the competent authorities. In order to support effective cross‑border coordination, in particular for pan-European operators, BEREC should establish and maintain a database of such notifications. Competent authorities should transmit only complete notifications to BEREC. Member States should not impede the provision of networks or services in any way, including on grounds of incompleteness of a notification.

(43)  Notifications ▌ should entail a mere declaration of the provider's intention to commence the provision of electronic communications networks and services. A provider should be required to complement that declaration only with the information set out in this Directive. Member States should not impose additional or separate notification requirements.

(44)  Contrary to the other categories of electronic communications networks and services as defined in this Directive, number-independent interpersonal communications services do not benefit from the use of public numbering resources and do not participate in a publicly assured interoperable ecosystem. It is therefore not appropriate to subject those types of services to the general authorisation regime.

(45)  When granting rights of use for radio spectrum, for numbering resources or rights to install facilities, the competent authorities should inform the undertakings to which they grant such rights of the relevant conditions. Member States should be able to lay down such conditions for the use of radio spectrum in individual rights of use or in the general authorisation.

(46)  General authorisations should contain only conditions which are specific to the electronic communications sector. They should not be made subject to conditions which are already applicable by virtue of other existing national law, in particular regarding consumer protection, which is not specific to the communications sector. For instance, competent authorities should be able to inform ▌undertakings about the applicable environmental and town-and-country-planning requirements. Conditions imposed under the general authorisation do not affect the determination of applicable law pursuant to Regulation (EC) No 593/2008 of the European Parliament and of the Council(26).

(47)  The conditions that could be attached to general authorisations should cover specific conditions governing accessibility for end-users with disabilities and the need of public authorities and emergency services to communicate between themselves and with the general public before, during and after major disasters.

(48)  It is necessary to include the rights and obligations of undertakings under general authorisations explicitly in such authorisations in order to ensure a level playing field throughout the Union and to facilitate cross-border negotiation of interconnection between public electronic communications networks.

(49)  General authorisations entitle undertakings providing electronic communications networks and services to the public to negotiate interconnection under the conditions of this Directive. Undertakings providing electronic communications networks and services other than to the public can negotiate interconnection on commercial terms.

(50)  Competent authorities should duly take into account, when attaching conditions to general authorisations and applying administrative charges, situations in which electronic communications networks or services are provided by natural persons on a not-for-profit basis. In the case of electronic communications networks and services not provided to the public it is appropriate to impose fewer and lighter conditions, if any, than are justified for electronic communications networks and services provided to the public.

(51)  Specific obligations imposed on undertakings providing electronic communications networks and electronic communications services in accordance with Union law by virtue of their designation as having significant market power as defined in this Directive should be imposed separately from the general rights and obligations under the general authorisation.

(52)  It is possible that undertakings providing electronic communications networks and services need confirmation of their rights under the general authorisation with respect to interconnection and rights of way, in particular to facilitate negotiations with other, regional or local, levels of government or with service providers in other Member States. To that end competent authorities should provide declarations to undertakings either upon request or alternatively as an automatic response to a notification under the general authorisation. Such declarations should not by themselves constitute entitlements to rights, nor should any rights under the general authorisation, rights of use or the exercise of such rights depend upon a declaration.

(53)  It should be possible to impose administrative charges on undertakings providing electronic communications services in order to finance the activities of the national regulatory or other competent authority in managing the general authorisation system and the granting of rights of use. Such charges should be limited to cover the actual administrative costs for those activities. To that end, transparency should be ensured in the income and expenditure of national regulatory and other competent authorities by means of annual reporting about the total sum of charges collected and the administrative costs incurred, in order to allow undertakings to verify that they are in balance.

(54)  Systems for administrative charges should not distort competition or create barriers to market entry. A general authorisation system renders it impossible to attribute administrative costs and hence charges to individual undertakings, except for the granting of rights of use for numbering resources, radio spectrum and for rights to install facilities. Any applicable administrative charges should be in line with the principles of a general authorisation system. An example of a fair, simple and transparent alternative for those charge attribution criteria could be a turnover related distribution key. Where administrative charges are very low, flat rate charges, or charges combining a flat rate basis with a turnover related element could also be appropriate. To the extent that the general authorisation system extends to undertakings with very small market shares, such as community-based network providers, or to service providers the business model of which generates very limited revenues even in the case of significant market penetration in terms of volumes, Member States should assess the possibility to establish an appropriate de minimis threshold for the imposition of administrative charges.

(55)  Member States might need to amend rights, conditions, procedures, charges and fees relating to general authorisations and rights of use where this is objectively justified. Such proposed amendments should be duly notified to all interested parties in good time, giving them adequate opportunity to express their views. ▌Unnecessary procedures should be avoided in the case of minor amendments to existing rights to install facilities or rights of use for radio spectrum or for numbering resources when such amendments do not have an impact on third parties' interests. ▌Minor amendments to rights and obligations are amendments which are mainly administrative, do not change the substantial nature of the general authorisations and the individual rights of use and thus cannot generate any competitive advantage over other undertakings.

(56)  Considering the importance of ensuring legal certainty and in order to promote regulatory predictability to provide a safe environment for investments, in particular for new wireless broadband communications, any restriction or withdrawal of any existing rights of use for radio spectrum or for numbering resources or right to install facilities should be subject to predictable and transparent justifications and procedures. Hence, stricter requirements or a notification mechanism could be imposed in particular where rights of use have been assigned pursuant to competitive or comparative procedures and in the case of harmonised radio spectrum bands to be used for wireless broadband electronic communications services ('wireless broadband services'). Justifications referring to effective and efficient use of radio spectrum and technological evolution could rely on technical implementing measures adopted under Decision No 676/2002/EC of the European Parliament and of the Council(27). Furthermore, except where proposed amendments are minor, where general authorisations and individual rights of use for radio spectrum need to be restricted, withdrawn or amended without the consent of the holder of the right, this can take place after consulting interested parties. As restrictions or withdrawals of general authorisations or rights may have significant consequences for their holders, the competent authorities should take particular care and assess in advance the potential harm that such measures may cause before adopting such measures.

(57)  National regulatory authorities ▌, other competent authorities and BEREC need to gather information from market players in order to carry out their tasks effectively, including assessing the compliance of general terms and conditions with this Directive without suspending the applicability of those terms and conditions during the assessment. It may, by way of exception, also be necessary to gather information from other undertakings active in sectors that are closely related to the electronic communications services sector, such as content providers, that hold information which could be necessary for them to exercise their tasks under Union law. It might also be necessary to gather such information on behalf of the Commission ▌, to allow it to fulfil its respective obligations under Union law. Requests for information should be proportionate and not impose an undue burden on undertakings. Information gathered by national regulatory and other competent authorities should be publicly available, except in so far as it is confidential in accordance with national rules on public access to information and subject to Union and national rules on commercial confidentiality.

(58)  In order to ensure that national regulatory authorities carry out their regulatory tasks in an effective manner, the data which they gather should include accounting data on the retail markets that are associated with wholesale markets where an undertaking is designated as having significant market power and as such are regulated by the national regulatory authority. The data should also include data which enable the national regulatory authority to assess compliance with conditions attached to rights of use, the possible impact of planned upgrades or changes to network topology on the development of competition or on wholesale products made available to other parties. Information regarding compliance with coverage obligations attached to rights of use for radio spectrum is key to ensure completeness of the geographical surveys of network deployments ▌. In that respect, the competent authority should be able to require that information is provided at disaggregated local level with a granularity adequate to conduct a geographical survey of networks.

(59)  To alleviate the burden of reporting and information obligations for network and service providers and the competent authority concerned, such obligations should be proportionate, objectively justified and limited to what is strictly necessary. In particular, duplication of requests for information by the competent authority and by BEREC, and the systematic and regular proof of compliance with all conditions under a general authorisation or a right of use, should be avoided. Undertakings should be aware of the intended use of the information sought. Provision of information should not be a condition for market access. For statistical purposes, a notification may be required from providers of electronic communications networks or services when they cease activities.

(60)  Member States' obligations to provide information for the defence of Union interests under international agreements as well as reporting obligations under law that is not specific to the electronic communications sector such as competition law should not be affected.

(61)  It should be possible to exchange information that is considered to be confidential by a competent authority, in accordance with Union and national rules on commercial confidentiality and on the protection of personal data, with the Commission, BEREC and any other authorities where such exchange is necessary for the application of national law transposing this Directive. The information exchanged should be limited to that which is relevant and proportionate to the purpose of such an exchange.

(62)  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 ▌regarding network roll-out in order to be effective and to target the areas where it is needed. That information is essential for the purpose of promoting investment, increasing connectivity across the Union and providing information to all relevant authorities and citizens. It should include surveys 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 relevant forecasts should concern periods of up to three years. The level of detail and territorial granularity of the information that competent 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 and other competent 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 and/or other competent authorities in conducting geographical surveys of networks roll-out. Without prejudice to commercial confidentiality requirements, competent authorities should, where the information is not already available on the market, make data directly accessible in an open format in accordance with Directive 2003/98/EC of the European Parliament and of the Council(28) and without restrictions on reuse the information gathered in such surveys and 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. In gathering any of that information, all authorities concerned should respect the principle of confidentiality, and should avoid causing a competitive disadvantage to any undertaking.

(63)  Bridging the digital divide in the Union is essential to enable all citizens of the Union to have access to the internet and digital services. To that end, in the case of specific and well-defined ▌areas, the relevant authorities should have the possibility to invite undertakings and public authorities to declare their intention to deploy very high capacity networks in these areas, allowing them sufficient time to provide a thoroughly considered response. The information included in the forecasts should reflect the economic prospects of the electronic communications networks sector and investment intentions of undertakings at the time when the data are gathered, in order to allow the identification of available connectivity in different areas. Where an undertaking or public authority declares an intention to deploy in an area, the national regulatory or other competent authority should be able to require other undertakings and public authorities to declare whether or not they intend to deploy very high capacity networks, or significantly upgrade or extend their network to a performance of at least 100 Mbps download speeds in this area. That procedure will create transparency for undertakings and public authorities that have expressed their interest in deploying in this area, so that, when designing their business plans, they can assess the likely competition that they will face from other networks. The positive effect of such transparency relies on market participants responding truthfully and in good faith.

(64)  While market participants can change their deployment plans for unforeseen, objective and justifiable reasons, competent authorities should intervene, including if public funding is affected, and, where appropriate, impose penalties if they have been provided, knowingly or due to gross negligence, by an undertaking or public authority with misleading erroneous or incomplete information. For the purpose of the relevant provisions on penalties, gross negligence should refer to a situation where an undertaking or a public authority provides misleading, erroneous or incomplete information due to its behaviour or internal organisation which falls significantly below due diligence regarding the information provided. Gross negligence should not require that the undertaking or public authority knows that the information provided is misleading, erroneous or incomplete, but, rather, that it would have known, had it acted or been organised with due diligence. It is important that the penalties are sufficiently dissuasive in light of the negative impact on competition and on publicly funded projects. The provisions on penalties should be without prejudice to any rights to claim compensation for damages in accordance with national law.

(65)  In the interests of predictable investment conditions, competent authorities should be able to share information with undertakings and public authorities expressing interest in deploying very high capacity networks on whether other types of network upgrades, including those below 100 Mbps download speed, are present or foreseen in the area in question.

(66)  It is important that national regulatory and other competent authorities consult all interested parties on proposed decisions, give them sufficient time to the complexity of the matter to provide their comments, and take account of their comments before adopting a final decision. In order to ensure that decisions at national level do not have an adverse effect on the functioning of the internal market or other TFEU objectives, national regulatory authorities should also notify certain draft decisions to the Commission and other national regulatory authorities to give them the opportunity to comment. It is appropriate for competent authorities to consult interested parties in the cases defined in this Directive on all draft measures which have an effect on trade between Member States.

(67)  In the context of a competitive environment, the views of interested parties, including users and consumers, should be taken into account. In order to appropriately address the interests of citizens, Member States should put in place an appropriate consultation mechanism. Such a mechanism could take the form of a body which would, independently of the national regulatory authority and service providers, carry out research into consumer-related issues, such as consumer behaviour and mechanisms for changing suppliers, and which would operate in a transparent manner and contribute to the existing mechanisms for stakeholder consultation. Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet use.

(68)  Out-of-court dispute resolution procedures may constitute a fast and cost-efficient way for end-users to enforce their rights, in particular for consumers and microenterprises and small enterprises as defined in the Annex to Commission Recommendation 2003/361/EC(29). ▌ Member States should enable the national regulatory authority or another competent authority responsible for, or at least one independent body with proven expertise in dealing with, end-user rights to act as an alternative dispute resolution entity. With respect to such dispute resolutions, those authorities should not be subject to any instructions. As many Member States have established dispute resolution procedures also for end-users other than consumers, to whom Directive 2013/11/EU of the European Parliament and of the Council(30) does not apply, it is reasonable to maintain the sector-specific dispute resolution procedure for both consumers and, where Member States extend it, also for other end-users, in particular microenterprises and small enterprises. In relation to out-of-court dispute resolution, Member States should be able to maintain or introduce rules that go beyond those laid down by Directive 2013/11/EU in order to ensure a higher level of consumer protection.

(69)  In the event of a dispute between undertakings in the same Member State in an area covered by this Directive, for example relating to obligations for access and interconnection or to the means of transferring end-user lists, an aggrieved party that has negotiated in good faith but failed to reach agreement should be able to call on the national regulatory authority to resolve the dispute. National regulatory authorities should be able to impose a solution on the parties. The intervention of a national regulatory authority in the resolution of a dispute between providers of electronic communications networks or services or associated facilities in a Member State should seek to ensure compliance with the obligations arising under this Directive.

(70)  In addition to the rights of recourse granted under Union or national law, there is a need for a simple procedure to be initiated at the request of either party in a dispute, to resolve cross-border disputes between undertakings providing, or authorised to provide, electronic communications networks or services in different Member States.

(71)  One important task assigned to BEREC is to adopt, where appropriate, opinions in relation to cross-border disputes. National regulatory authorities should therefore fully reflect any opinion submitted by BEREC in their measures imposing any obligation on an undertaking or otherwise resolving the dispute in such cases.

(72)  Lack of coordination between Member States when organising the use of radio spectrum in their territory can, if not solved through bilateral Member States negotiations, create large‑scale interference issues severely impacting on the development of the Digital Single Market. Member States should take all necessary measures to avoid cross-border and harmful interference between them. The Radio Spectrum Policy Group (RSPG) established by Commission Decision 2002/622/EC(31) should be tasked with supporting the necessary cross-border coordination and be the designated forum for resolving disputes between Member States on cross border issues. Building on the RSPG's proposed solution, an implementing measure is required in some circumstances to resolve cross-border interference definitively or to enforce under Union law a coordinated solution agreed by two or several Member States in bilateral negotiations. Lack of coordination between Member States and countries neighbouring the Union can also create large-scale interference issues. Member States should take appropriate measures to avoid cross-border and harmful interference with countries neighbouring the Union, and cooperate with each other to that end. Upon the request of Member States affected by cross-border interference from third countries, the Union should provide its full support for those Member States.

(73)  The RSPG is a Commission high-level advisory group which was created by Decision 2002/622/EC to contribute to the development of the internal market and to support the development of a Union-level radio spectrum policy, taking into account economic, political, cultural, strategic, health and social considerations, as well as technical parameters. It should be composed of the heads of the bodies that have overall political responsibility for strategic radio spectrum policy. It should assist and advise the Commission with respect to radio spectrum policy. This should further increase the visibility of radio spectrum policy in the various Union policy areas and help to ensure cross-sectorial consistency at Union and national and level. It should also provide advice to the European Parliament and to the Council upon their request. Moreover, the RSPG should also be the forum for the coordination of implementation by Member States of their obligations related to radio spectrum under this Directive and should play a central role in fields essential for the internal market such as cross-border coordination or standardisation. Technical or expert working groups could also be created to assist plenary meetings, at which strategic policy is framed through senior-level representatives of the Member States and the Commission. The Commission has indicated its intention to amend Decision 2002/622/EC within six months of the entry into force of this Directive, in order to reflect the new tasks conferred on the RSPG by this Directive.

(74)  Competent authorities should monitor and secure compliance with the terms and conditions of the general authorisation and rights of use, and in particular to ensure effective and efficient use of radio spectrum and compliance with coverage and quality of service obligations, through administrative penalties including financial penalties and injunctions and withdrawals of rights of use in the event of breaches of those terms and conditions. Undertakings should provide the most accurate and complete information possible to competent authorities to allow them to fulfil their surveillance tasks ▌.

(75)  The conditions attached to general authorisations and individual rights of use should be limited to those strictly necessary to ensure compliance with requirements and obligations under national law and Union law.

(76)  Any party subject to a decision of a competent authority should have the right to appeal to a body that is independent of the parties involved and of any external intervention or political pressure which could jeopardise its independent assessment of matters coming before it. That body can be a court. Furthermore, any undertaking which considers that its applications for the granting of rights to install facilities have not been dealt with in accordance with the principles set out in this Directive should be entitled to appeal against such decisions. That appeal procedure should be without prejudice to the division of competences within national judicial systems and to the rights of legal entities or natural persons under national law. In any case, Member States should grant effective judicial review against such decisions.

(77)  In order to ensure legal certainty for market players, appeal bodies should carry out their functions effectively. In particular, appeal proceedings should not be unduly lengthy. Interim measures suspending the effect of the decision of a competent authority should be granted only in urgent cases in order to prevent serious and irreparable damage to the party applying for those measures and if the balance of interests so requires.

(78)  There has been a wide divergence in the manner in which appeal bodies have applied interim measures to suspend the decisions of the national regulatory or other competent authorities. In order to achieve greater consistency of approach common standards should be applied in line with the case law of the Court of Justice. Appeal bodies should also be entitled to request available information published by BEREC. Given the importance of appeals for the overall operation of the regulatory framework, a mechanism should be set up, in all the Member States, for collecting information on appeals and decisions to suspend decisions taken by the competent authorities and for the reporting of that information to the Commission and to BEREC. That mechanism should ensure that the Commission or BEREC can retrieve from Member States the text of the decisions and judgments with a view to developing a database.

(79)  Transparency in the application of the Union mechanism for consolidating the internal market for electronic communications should be increased in the interest of citizens and stakeholders and to enable parties concerned to make their views known, including by way of requiring national regulatory authorities to publish any draft measure at the same time as it is communicated to the Commission, to BEREC, and to the national regulatory authorities in other Member States. Any such draft measure should be reasoned and should contain a detailed analysis.

(80)  The Commission should be able, after taking utmost account of the opinion of BEREC, to require a national regulatory authority to withdraw a draft measure where it concerns the definition of relevant markets or the designation of undertakings as having significant market power, and where such decisions would create a barrier to the internal market or would be incompatible with Union law and in particular the policy objectives that national regulatory authorities should follow. This procedure is without prejudice to the notification procedure provided for in Directive (EU) 2015/1535 and the Commission's prerogatives under TFEU in respect of infringements of Union law.

(81)  The national consultation of interested parties should be conducted prior to the consultation at Union level for the purposes of consolidating the internal market for electronic communications and within the procedure for the consistent application of remedies, in order to allow the views of interested parties to be reflected in the consultation at Union level. This would also avoid the need for a second consultation at Union level in the event of changes to a planned measure as a result of the national consultation.

(82)  It is important that the regulatory framework is implemented in a timely manner. When the Commission has taken a decision requiring a national regulatory authority to withdraw a planned measure, national regulatory authorities should withdraw its draft measure or submit a revised measure to the Commission. A deadline should be laid down for the notification of the revised measure to the Commission in order to inform market players of the duration of the market review and in order to increase legal certainty.

(83)  The Union mechanism allowing the Commission to require national regulatory authorities to withdraw planned measures concerning market definition and the designation of undertakings as having significant market power has contributed significantly to a consistent approach in identifying the circumstances in which ex ante regulation may be applied and those in which the undertakings are subject to such regulation. The experience of the procedures under Articles 7 and 7a of Directive 2002/21/EC has shown that inconsistencies in the national regulatory authorities’ application of remedies under similar market conditions undermine the internal market in electronic communications. Therefore, the Commission and BEREC should participate in ensuring, within their respective responsibilities, a higher level of consistency in the application of remedies concerning draft measures proposed by national regulatory authorities. In addition, for draft measures relating to the extension of obligations beyond the first concentration or distribution point, where needed to address high and non-transitory economic or physical barriers to replication, on undertakings irrespective of a designation as having significant market power, or to the regulatory treatment of new very high-capacity network elements where BEREC shares the Commission's concerns, the Commission should be able to require a national regulatory authority to withdraw a draft measure. In order to benefit from the expertise of national regulatory authorities on the market analysis, the Commission should consult BEREC prior to adoption of its decisions or recommendations.

(84)  Having regard to the short time-limits in the consultation mechanism at Union level, powers should be conferred on the Commission to adopt recommendations or guidelines to simplify the procedures for exchanging information between the Commission and national regulatory authorities, for example in cases concerning stable markets, or involving only minor changes to previously notified measures. Powers should also be conferred on the Commission in order to allow for the introduction of a notification exemption in order to streamline procedures in certain cases.

(85)  National regulatory authorities should be required to cooperate with each other, with BEREC and with the Commission, in a transparent manner, to ensure the consistent application, in all Member States, of this Directive.

(86)  The discretion of national regulatory authorities needs to be reconciled with the development of consistent regulatory practices and the consistent application of the regulatory framework in order to contribute effectively to the development and completion of the internal market. National regulatory authorities should therefore support the internal market activities of the Commission and of BEREC.

(87)  Measures that could affect trade between Member States are measures that could have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in a manner which might create a barrier to the internal market. They comprise measures that have a significant impact on undertakings or users in other Member States, which include: measures which affect prices for users in other Member States; measures which affect the ability of an undertaking established in another Member State to provide an electronic communications service, and in particular measures which affect the ability to offer services on a transnational basis; and measures which affect market structure or access, leading to repercussions for undertakings in other Member States.

(88)  A more convergent use and definition of elements of selection procedures and the conditions attached to the rights of use for radio spectrum which have a significant impact on market conditions and the competitive situation, including conditions for entry and expansion ▌, would be enhanced by a coordination mechanism whereby the RSPG, at the request of the national regulatory or other competent authority or, exceptionally, on its own initiative, convenes a Peer Review Forum to examine draft measures in advance of the granting of rights of use by a given Member State with a view to exchanging best practices. The Peer Review Forum is an instrument of peer learning. It should contribute to a better exchange of best practices between Member States and increase the transparency of the competitive or comparative selection procedures. The Peer Review Process should not be a formal condition of national authorisation procedures. The exchange of views should be based on information provided by the national regulatory or other competent authority that requests the Peer Review Forum and should 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. Therefore, the national regulatory or other competent authority should also be able to provide information on other draft national measures or aspects thereof related to the relevant selection procedure for limiting rights of use for radio spectrum which are not covered by the peer review mechanism. To reduce administrative burden, the national regulatory or other competent authority should be able to submit such information by way of a common reporting format, where available, for transmission to the RSPG members.

(89)  Where the harmonised assignment of radio spectrum to particular undertakings has been agreed at Union level, Member States should strictly implement such agreements in the granting of rights of use for radio spectrum from the National Frequency Allocation Plan.

(90)  Member States should be able to consider joint authorisation processes as an option when issuing rights of use where the expected usage covers cross-border situations.

(91)  Any Commission decision to ensure the harmonised application of this Directive should be limited to regulatory principles, approaches and methodologies. For the avoidance of doubt, it should not prescribe any detail normally required to reflect national circumstances, and it should not prohibit alternative approaches which can reasonably be expected to have equivalent effect. Such a decision should be proportionate and should not have an effect on decisions taken by national regulatory or other competent authorities that do not create a barrier to the internal market.

(92)  The Union and the Member States have entered into commitments in relation to standards and the regulatory framework of telecommunications networks and services in the World Trade Organization.

(93)  Standardisation should remain primarily a market-driven process. However there may still be situations where it is appropriate to require compliance with specified standards at Union level in order to improve interoperability, freedom of choice for users and encourage interconnectivity in the internal market. At national level, Member States are subject to Directive (EU) 2015/1535. Standardisation procedures under this Directive are without prejudice to Directives 2014/30/EU(32) and 2014/35/EU(33) of the European Parliament and of the Council, and Directive 2014/53/EU.

(94)  Providers of public electronic communications networks or publicly available electronic communications services, or of both, should be required to take measures to safeguard the security of their networks and services, respectively, and to prevent or minimise the impact of security incidents. Having regard to the state of the art, those measures should ensure a level of security of networks and services appropriate to the risks posed. Security measures should take into account, as a minimum, all the relevant aspects of the following elements: as regards security of networks and facilities: physical and environmental security, security of supply, access control to networks and integrity of networks; as regards handling of security incidents: handling procedures, security incident detection capability, security incident reporting and communication; as regards business continuity management: service continuity strategy and contingency plans, disaster recovery capabilities; as regards monitoring, auditing and testing: monitoring and logging policies, exercise contingency plans, network and service testing, security assessments and compliance monitoring; and compliance with international standards.

(95)  Given the growing importance of number-independent interpersonal communications services, it is necessary to ensure that they are also subject to appropriate security requirements in accordance with their specific nature and economic importance. Providers of such services should thus also ensure a level of security appropriate to the risk posed ▌. Given that providers of number-independent interpersonal communications services normally do not exercise actual control over the transmission of signals over networks, the degree of risk for such services can be considered in some respects to be lower than for traditional electronic communications services. Therefore, where justified on the basis of the actual assessment of the security risks involved, the measures taken by providers of number‑independent interpersonal communications services should be lighter. ▌The same approach should apply mutatis mutandis to interpersonal communications services which make use of numbers and which do not exercise actual control over signal transmission.

(96)  Providers of public electronic communications networks or of publicly available electronic communications services should inform users of particular and significant security threats and of measures they can take to protect the security of their communications, for instance by using specific types of software or encryption technologies. The requirement to inform users of such threats should not discharge a service provider from the obligation to take, at its own expense, appropriate and immediate measures to remedy any security threats and restore the normal security level of the service. The provision of such information about security threats to the user should be free of charge.

(97)  In order to safeguard security of networks and services, and without prejudice to the Member States' powers to ensure the protection of their essential security interests and public security, and to permit the investigation, detection and prosecution of criminal offences, the use of encryption for example, end-to-end where appropriate, should be promoted and, where necessary, encryption should be mandatory in accordance with the principles of security and privacy by default and by design.

(98)  Competent authorities should ensure that the integrity and availability of public electronic communications networks are maintained. The European Union Agency for Network and Information Security ('ENISA') should contribute to an enhanced level of security of electronic communications by, inter alia, providing expertise and advice, and promoting the exchange of best practices. The competent authorities should have the necessary means to perform their duties, including powers to request the information necessary to assess the level of security of networks or services. They should also have the power to request comprehensive and reliable data about actual security incidents that have had a significant impact on the operation of networks or services. They should, where necessary, be assisted by Computer Security Incident Response Teams ('CSIRTs') established by Directive (EU) 2016/1148 of the European Parliament and of the Council(34). In particular, CSIRTs may be required to provide competent authorities with information about risks and security incidents affecting public electronic communications networks and publicly available electronic communications services, and recommend ways to address them.

(99)  Where the provision of electronic communications relies on public resources the use of which is subject to specific authorisation, Member States should be able to 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 ▌. 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 consistent 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 providers of electronic communications networks and services.

(100)  To ensure optimal use of resources, fees should reflect the economic and technical situation of the market concerned as well as any other significant factor determining their value. At the same time, fees should be set in a manner that ensures efficient assignment and use of radio spectrum. This Directive is without prejudice to the purpose for which fees for rights of use and rights to install facilities are employed. It should be possible, for example, to use such fees to finance activities of national regulatory and other competent authorities that cannot be covered by administrative charges. Where, in the case of competitive or comparative selection procedures, fees for rights of use for radio spectrum consist entirely or partly of a one-off amount, payment arrangements should ensure that such fees do not in practice lead to selection on the basis of criteria unrelated to the objective of ensuring optimal use of radio spectrum. The Commission should be able to publish, on a regular basis, benchmark studies and, as appropriate, other guidance with regard to best practices for the assignment of radio spectrum, the assignment of numbering resources or the granting of rights of way.

(101)  Fees imposed on undertakings for rights of use for radio spectrum can influence decisions about whether to seek such rights and put into use radio spectrum resources. With a view to ensuring optimal use of radio spectrum, Member States should therefore set reserve prices in a way that leads to the efficient assignment of those rights, irrespective of the type of selection procedure used. Member States could also take into account possible costs associated with the fulfilment of authorisation conditions imposed to further policy objectives ▌. In doing so, regard should also be had to the competitive situation of the market concerned including the possible alternative uses of the resources.

(102)  Optimal use of radio spectrum resources depends on the availability of appropriate networks and associated facilities. In that regard, Member States should aim to ensure that, where national regulatory or other competent authorities apply fees for rights of use for radio spectrum and for rights to install facilities, they take into consideration the need to facilitate continuous infrastructure development with a view to achieving the most efficient use of the resources. Member States should seek to ensure the application, to the best extent possible, of arrangements for the payment of the fees for rights of use for radio spectrum linked with the actual availability of the resource in a manner that supports the investments necessary to promote such infrastructure development and the provision of related services. The payment arrangements should be specified in an objective, transparent, proportionate and non-discriminatory manner before opening procedures for the granting of rights of use for radio spectrum.

(103)  It should be ensured that procedures exist for the granting of rights to install facilities that are timely, non-discriminatory and transparent, in order to guarantee the conditions for fair and effective competition. This Directive is without prejudice to national provisions governing the expropriation or use of property, the normal exercise of property rights, the normal use of the public domain, or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership.

(104)  Permits issued to providers of electronic communications networks and services allowing them to gain access to public or private property are essential factors for the establishment of electronic communications networks or new network elements. Unnecessary complexity and delay in the procedures for granting rights of way may therefore represent important obstacles to the development of competition. Consequently, the acquisition of rights of way by authorised undertakings should be simplified. Competent authorities should coordinate the acquisition of rights of way, making relevant information accessible on their websites.

(105)  It is necessary to strengthen the powers of the Member States as regards holders of rights of way to ensure the entry or roll-out of a new network in a fair, efficient and environmentally responsible way and independently of any obligation on an undertaking designated as having significant market power to grant access to its electronic communications network. Improving facility sharing can lower the environmental cost of deploying electronic communications infrastructure and serve public health, public security and meet town and country planning objectives. Competent authorities should be empowered to require that the undertakings which have benefitted from rights to install facilities on, over or under public or private property share such facilities or property, including physical co-location, after an appropriate period of public consultation, during which all interested parties should be given the opportunity to state their views, in the specific areas where such general interest reasons impose such sharing. That can be the case for instance where the subsoil is highly congested or where a natural barrier needs to be crossed. Competent authorities should in particular be able to impose the sharing of network elements and associated facilities, such as ducts, conduits, masts, manholes, cabinets, antennae, towers and other supporting constructions, buildings or entries into buildings, and a better coordination of civil works on environmental or other public policy grounds. On the contrary, it should be for national regulatory authorities to define rules for apportioning the costs of the facility or property sharing, to ensure that there is an appropriate reward of risk for the undertakings concerned. In light of the obligations imposed by Directive 2014/61/EU, the competent authorities, in particular, local authorities, should also establish appropriate coordination procedures, in cooperation with national regulatory authorities, with respect to public works and other appropriate public facilities or property which should be able to include procedures that ensure that interested parties have information concerning appropriate public facilities or property and ongoing and planned public works, that they are notified in a timely manner of such works, and that sharing is facilitated to the maximum extent possible.

(106)  Where mobile operators are required to share towers or masts for environmental reasons, such mandated sharing could lead to a reduction in the maximum transmitted power levels allowed for each operator for reasons of public health, and this in turn could require operators to install more transmission sites to ensure national coverage. Competent authorities should seek to reconcile the environmental and public health considerations in question, taking due account of the precautionary approach set out in Council Recommendation 1999/519/EC(35).

(107)  Radio spectrum is a scarce public resource with an important public and market value. It is an essential input for radio-based electronic communications networks and services and, insofar as it relates to such networks and services, should therefore be efficiently allocated and assigned by national regulatory or other competent authorities in accordance with harmonised objectives and principles governing their action as well as to objective, transparent and non-discriminatory criteria, taking into account the democratic, social, linguistic and cultural interests related to the use of radio spectrum ▌. Decision No 676/2002/EC establishes a framework for harmonisation of radio spectrum.

(108)  Radio spectrum policy activities in the Union should be without prejudice to measures taken, at Union or national level, in accordance with Union law, to pursue general interest objectives, in particular with regard to public governmental and defence networks, content regulation and audiovisual and media policies, and the right of Member States to organise and use their radio spectrum for public order, public security and defence. ▌

(109)  Ensuring widespread connectivity in each Member State is essential for economic and social development, participation in public life and social and territorial cohesion. As connectivity and the use of electronic communications become an integral element to European society and welfare, Member States should strive to ensure Union-wide wireless broadband coverage. Such coverage should be achieved by relying on the imposition by Member States of appropriate coverage requirements, which should be adapted to each area served and limited to proportionate burdens in order not to hinder deployment by service providers. Given the major role systems such as radio local area networks (RLANs) play in providing high-speed wireless broadband indoors, measures should aim to ensure the release of sufficient radio spectrum in bands which are particularly valuable assets for the cost-efficient deployment of wireless networks with universal coverage, in particular indoors. Moreover, consistent and coordinated measures for high-quality terrestrial wireless coverage across the Union, building on best national practices for operators' licence obligations, should aim to meet the radio spectrum policy programme objective that all citizens of the Union should have access both indoors and outdoors, to the fastest broadband speeds of not less than 30 Mbps by 2020, and should aim to achieve an ambitious vision for a gigabit society in the Union. Such measures will promote innovative digital services and ensure long-term socioeconomic benefits. Seamless coverage of the territory as well as connectivity across Member States should be maximised and reliable, with a view to promoting in-border and cross-border services and applications such as connected cars and e-health. ▌

(110)  The need to ensure that citizens are not exposed to electromagnetic fields at a level harmful to public health is imperative. Member States should pursue consistency across the Union to address this issue, having particular regard to the precautionary approach taken in Recommendation 1999/519/EC, in order to work towards ensuring more consistent deployment conditions. Member States should apply the procedure set out in Directive (EU) 2015/1535, where relevant, with a view also to providing transparency to stakeholders and to allow other Member States and the Commission to react.

(111)  Radio spectrum harmonisation and coordination, and equipment regulation supported by standardisation, are complementary and need to be coordinated closely to meet their joint objectives effectively, with the support of the RSPG. Coordination between the content and timing of mandates to CEPT under Decision No 676/2002/EC and standardisation requests to standardisation bodies, such as the European Telecommunications Standards Institute, including with regard to radio receivers parameters, should facilitate the introduction of future systems, support radio spectrum sharing opportunities and ensure efficient radio spectrum management.

(112)  The demand for harmonised radio spectrum is not uniform in all parts of the Union. Where there is lack of demand for all or part of a harmonised band at regional or national level, Member States could, by way of exception, allow an alternative use of the band, for example to cover lack of market supply for certain uses, for as long as such lack of demand persists and provided that the alternative use does not prejudice the harmonised use of the band by other Member States and that it ceases when demand for the harmonised use materialises.

(113)  Flexibility in radio spectrum management and access to radio spectrum has been established through technology and service-neutral authorisations to allow radio spectrum users to choose the best technologies and services to apply in radio spectrum bands declared available for electronic communications services in the relevant National Frequency Allocation Plans in accordance with Union law (‘the principle of technology neutrality and the principle of service neutrality’). The administrative determination of technologies and services should apply only when general interest objectives are at stake and should be clearly justified and subject to regular review.

(114)  Restrictions to the principle of technology neutrality should be appropriate and justified by the need to avoid harmful interference, for example by imposing emission masks and power levels, to ensure the protection of public health by limiting public exposure to electromagnetic fields, to ensure the proper functioning of services through an adequate level of technical quality of service, while not necessarily precluding the possibility of using more than one service in the same radio spectrum band, to ensure proper sharing of radio spectrum, in particular where its use is subject only to general authorisations, to safeguard efficient use of radio spectrum, or to fulfil a general interest objective in accordance with Union law.

(115)  Radio spectrum users should also be able to choose freely the services they wish to offer over the radio spectrum. On the other hand, measures should be allowed which require the provision of a specific service to meet clearly defined general interest objectives such as safety of life, the need to promote social, regional and territorial cohesion, or the avoidance of the inefficient use of radio spectrum to be permitted where necessary and proportionate. Those objectives should include the promotion of cultural and linguistic diversity and media pluralism, as defined by Member States in accordance with Union law. Except where necessary to protect safety of life or, by way of exception, to fulfil other general interest objectives as defined by Member States in accordance with Union law, exceptions should not result in certain services having exclusive use, but should rather grant them priority so that, insofar as possible, other services or technologies could coexist in the same radio spectrum band. It lies within the competence of the Member States to define the scope and nature of any exception regarding the promotion of cultural and linguistic diversity and media pluralism.

(116)  As the allocation of radio spectrum to specific technologies or services is an exception to the principles of technology and service neutrality and reduces the freedom to choose the service provided or technology used, any proposal for such allocation should be transparent and subject to public consultation.

(117)  Where Member States decide, by way of exception, to limit the freedom to provide electronic communications networks and services based on grounds of public policy, public security or public health, Member States should explain the reasons for such a limitation.

(118)  Radio spectrum should be managed in a manner that ensures the avoidance of harmful interference. The basic concept of harmful interference should therefore be properly defined to ensure that regulatory intervention is limited to the extent necessary to prevent such interference, having regard also to the need to take into consideration advanced methods for protection against harmful interference, with the aim of applying those technologies and radio spectrum management methods in order to avoid, to the extent possible, the application of the non-interference and non-protection principle. Transport has a strong cross-border element and its digitalisation brings challenges. Vehicles (such as metro, bus, cars, trucks, trains,) are becoming increasingly autonomous and connected. In the internal market, vehicles travel beyond national borders more easily. Reliable communications, and avoiding harmful interference, are critical for the safe and good operation of vehicles and their on‑board communications systems.

(119)  With growing radio spectrum demand and new varying applications and technologies which necessitate more flexible access and use of radio spectrum, Member States should promote the shared use of radio spectrum by determining the most appropriate authorisation regimes for each scenario and by establishing appropriate and transparent rules and conditions therefor. Shared use of radio spectrum increasingly ensures its effective and efficient use by allowing several independent users or devices to access the same radio spectrum band under various types of legal regimes in order to make additional radio spectrum resources available, raise usage efficiency and facilitate radio spectrum access for new users. Shared use can be based on general authorisations or licence-exempt use allowing, under specific sharing conditions, several users to access and use the same radio spectrum in different geographic areas or at different moments in time. It can also be based on individual rights of use under arrangements such as licensed shared access where all users (with an existing user and new users) agree on the terms and conditions for shared access, under the supervision of the competent authorities, in such a way as to ensure a minimum guaranteed radio transmission quality. When allowing shared use under different authorisation regimes, Member States should not set widely diverging durations for such use under different authorisation regimes.

(120)  General authorisations for the use of radio spectrum may facilitate the most effective use of radio spectrum and foster innovation in some cases and are pro-competitive, whereas individual rights of use for radio spectrum in other cases may be the most appropriate authorisation regime in the presence of certain specific circumstances. Individual rights of use should be considered, for example, when favourable propagation characteristics of the radio spectrum or the envisaged power level of the transmission imply that general authorisations cannot address the interference concerns in light of the required quality of service. Technical measures such as solutions to improve receiver resilience might enable the use of general authorisations or radio spectrum sharing, and possibly avoid systematic recourse to the non-interference and non-protection principle.

(121)  In order to ensure predictability and preserve legal certainty and investment stability, Member States should establish, in advance, appropriate criteria to determine compliance with the objective of efficient use of radio spectrum by the holders of the rights when implementing the conditions attached to individual rights of use and general authorisations. Interested parties should be involved in the definition of such conditions and informed, in a transparent manner, about how the fulfilment of their obligations will be assessed.

(122)  In order to avoid the creation of barriers to market entry, namely through anti‑competitive hoarding, enforcement of conditions attached to radio spectrum rights by Member States should be effective and all competent authorities should participate where necessary. Enforcement conditions should include the application of a "use it or lose it" clause. In order to ensure legal certainty in respect of the possible exposure to any penalty for failure to use radio spectrum, thresholds of use, including in terms of time, quantity or identity of radio spectrum, should be established in advance. Trading and leasing of radio spectrum should ensure the effective use by the original holder of the right.

(123)  Where harmonised conditions for a radio spectrum band are established under Decision No 676/2002/EC, competent authorities are to decide on the most appropriate authorisation regime to be applied in that band or parts thereof. Where all Member States are likely to face similar problems for which diverging solutions could fragment the internal market in equipment, and thereby delay the rollout of 5G systems, it may be necessary for the Commission, taking utmost account of the opinion of the RSPG, to recommend common solutions, acknowledging technical harmonisation measures in force. This could provide a common toolbox for Member States which they could take into account when identifying appropriate consistent authorisation regimes to be applied to a band, or part of a band, depending on factors such as population density, propagation characteristics of the bands, divergence between urban and rural uses, the possible need to protect existing services and the resulting implications for economies of scale in manufacturing.

(124)  Network infrastructure sharing, and in some instances radio spectrum sharing, can allow for a more effective and efficient use of radio spectrum and ensure the rapid deployment of networks, especially in less densely populated areas. When establishing the conditions to be attached to rights of use for radio spectrum, competent authorities should also consider authorising forms of sharing or coordination between undertakings with a view to ensuring effective and efficient use of radio spectrum or compliance with coverage obligations, in accordance with competition law principles.

(125)  The requirement to respect the principles of technology and service neutrality in granting rights of use, together with the possibility to transfer rights between undertakings, underpin the freedom and means to deliver electronic communications services to the public, thereby also facilitating the achievement of general interest objectives. This Directive is without prejudice whether radio spectrum is assigned directly to providers of electronic communications networks or services or to entities that use those networks or services. Such entities may be radio or television broadcast content providers. The responsibility for compliance with the conditions attached to the right of use for radio spectrum and the relevant conditions attached to the general authorisation should in any case lie with the undertaking to which the right of use for radio spectrum has been granted. Certain obligations imposed on broadcasters for the delivery of audiovisual media services may require the use of specific criteria and procedures for the granting of radio spectrum usage rights to meet a specific general interest objective set out by Member States in accordance with Union law. However, the procedure for the granting of such right should in any event be objective, transparent, non-discriminatory and proportionate.

(126)  The case-law of the Court of Justice requires that any national restrictions to the rights guaranteed by Article 56 TFEU should be objectively justified and proportionate and should not exceed those necessary to achieve their objectives. Moreover, radio spectrum granted without following an open procedure should not be used for purposes other than the general interest objective for which they were granted. In such a case, the interested parties should be given the opportunity to comment within a reasonable period. As part of the application procedure for granting rights, Member States should verify whether the applicant is able to comply with the conditions to be attached to such rights. Those conditions should be reflected in eligibility criteria set out in objective, transparent, proportionate and non‑discriminatory terms prior to the launch of any competitive selection procedure. For the purpose of applying such criteria, the applicant may be requested to submit the necessary information to prove his ability to comply with those conditions. Where such information is not provided, the application for the right of use for radio spectrum may be rejected.

(127)  Member States should, prior to the granting of the right, impose only the verification of elements that can reasonably be demonstrated by an applicant exercising ordinary care, taking due account of the important public and market value of radio spectrum as a scarce public resource. This is without prejudice to the possibility for subsequent verification of the fulfilment of eligibility criteria, for example through milestones, where criteria could not reasonably be met initially. To preserve effective and efficient use of radio spectrum, Member States should not grant rights where their review indicates applicants' inability to comply with the conditions, without prejudice to the possibility of facilitating time-limited experimental use. Sufficiently long duration of authorisations for the use of radio spectrum should increase investment predictability to contribute to faster network roll-out and better services, as well as stability to support radio spectrum trading and leasing. Unless use of radio spectrum is authorised for an unlimited period, such a duration should both take account of the objectives pursued and be sufficient to facilitate recoupment of the investments made. While a longer duration can ensure investment predictability, measures to ensure effective and efficient use of radio spectrum, such as the power of the competent authority to amend or withdraw the right in the case of non-compliance with the conditions attached to the rights of use, or the facilitation of radio spectrum tradability and leasing, will serve to prevent inappropriate accumulation of radio spectrum and support greater flexibility in distributing radio spectrum resources. Greater recourse to annualised fees is also a means to ensure a continuous assessment of the use of the radio spectrum by the holder of the right.

(128)  Considering the importance of technical innovation, Member States should be able to provide for rights to use radio spectrum for experimental purposes, subject to specific restrictions and conditions strictly justified by the experimental nature of such rights.

(129)  In deciding whether to renew already granted rights of use for harmonised radio spectrum, competent authorities should take into account the extent to which renewal would further the objectives of the regulatory framework and other objectives under Union and national law. Any such decision should be subject to an open, non-discriminatory and transparent procedure and based on a review of how the conditions attached to the rights concerned have been fulfilled. When assessing the need to renew rights of use, Member States should weigh the competitive impact of renewing assigned rights against the promotion of more efficient exploitation or of innovative new uses that might result if the band were opened to new users. Competent authorities should be able to make their determination in this regard by allowing for only a limited duration for renewal in order to prevent severe disruption of established use. While decisions on whether to renew rights assigned prior to the applicability of this Directive should respect any rules already applicable, Member States should also ensure that they do not prejudice the objectives of this Directive.

(130)  When renewing existing rights of use for harmonised radio spectrum, Member States should, together with the assessment of the need to renew the right, review the fees attached thereto with a view to ensuring that those fees continue to promote optimal use, taking account, inter alia, of market developments and technological evolution. For reasons of legal certainty, it is appropriate for any adjustments to the existing fees to be based on the same principles as those applicable to the award of new rights of use.

(131)  Effective management of radio spectrum can be ensured by facilitating the continued efficient use of radio spectrum that has already been assigned. In order to ensure legal certainty to holders of the rights, the possibility of renewal of rights of use should be considered within an appropriate time-span prior to the expiry of the rights concerned, for example, where rights have been assigned for 15 years or more, at least two years before expiry of those rights, unless the possibility of renewal was explicitly excluded at the time of assignment of the rights. In the interest of continuous resource management, competent authorities should be able to undertake such consideration at their own initiative as well as in response to a request from the assignee. The renewal of the right to use should not be granted contrary to the will of the assignee.

(132)  Transfer of rights of use for radio spectrum can be an effective means of increasing the efficient use of spectrum. For the sake of flexibility and efficiency, and to allow valuation of radio spectrum by the market, Member States should by default allow radio spectrum users to transfer or lease their rights of use for radio spectrum to third parties following a simple procedure and subject to the conditions attached to such rights and to competition rules, under the supervision of the national regulatory authorities responsible. In order to facilitate such transfers or leases, provided that technical implementing measures adopted under Decision No 676/2002/EC are respected, Member States should also consider requests to have radio spectrum rights partitioned or disaggregated and conditions for use reviewed.

(133)  Measures taken specifically to promote competition when granting or renewing rights of use for radio spectrum should be decided by national regulatory and other competent authorities, which have the necessary economic, technical and market knowledge. Radio spectrum assignment conditions can influence the competitive situation in electronic communications markets and conditions for entry. Limited access to radio spectrum, in particular when radio spectrum is scarce, can create a barrier to entry or hamper investment, network roll-out, the provision of new services or applications, innovation and competition. New rights of use, including those acquired through transfer or leasing, and the introduction of new flexible criteria for radio spectrum use can also influence existing competition. Where unduly applied, certain conditions used to promote competition, can have other effects; for example, radio spectrum caps and reservations can create artificial scarcity, wholesale access obligations can unduly constrain business models in the absence of market power, and limits on transfers can impede the development of secondary markets. Therefore, a consistent and objective competition test for the imposition of such conditions is necessary and should be applied consistently. The use of such measures should therefore be based on a thorough and objective assessment, by national regulatory and other competent authorities, of the market and the competitive conditions thereof. National competent authorities should, however, always ensure the effective and efficient use of radio spectrum and avoid distortion of competition through anti-competitive hoarding.

(134)  Building on opinions from the RSPG, the adoption of a common deadline for allowing the use of a radio spectrum band which has been harmonised under Decision No 676/2002/EC can be necessary to avoid cross-border interference and beneficial to ensure release of the full benefits of the related technical harmonisation measures for equipment markets and for the deployment of very high capacity networks and services. Allowing the use of a radio spectrum band entails assigning radio spectrum under a general authorisation regime or individual rights of use in order to permit the use of radio spectrum as soon as the assignment process is completed. In order to assign radio spectrum bands, it might be necessary to release a band occupied by other users and to compensate them. Implementation of a common deadline for allowing the use of harmonised bands for electronic communications services, including for 5G, might however be affected in a particular Member State by problems relating to unresolved cross-border coordination issues between Member States or with third countries, to the complexity of ensuring the technical migration of existing users of a band; a restriction to the use of the band based on a general interest objective, to the safeguarding of national security and defence or to force majeure. In any case, Member States should take all measures to reduce any delay to the minimum in terms of geographical coverage, timing and radio spectrum range. Moreover, Member States should be able, where appropriate in light of their assessment of the relevant circumstances, to request the Union to provide legal, political and technical support to resolve radio spectrum coordination issues with countries neighbouring the Union, including candidate and acceding countries, in such a way that the Member States concerned can observe their obligations under Union law.

(135)  In order to ensure increased coordinated availabilities of radio spectrum by 2020 to achieve very high speed fixed and wireless networks in the context of 5G, the 3.4‑3.8 GHz and the 24.25‑27.5 GHz bands have been identified by the RSPG as priority bands suitable to fulfil the objectives of the 5G Action Plan by 2020. The 40.5‑43.5 GHz and 66‑71 GHz bands have also been identified for further study. It is therefore necessary to ensure that, by 31 December 2020, the 3.4‑3.8 GHz and the 24.25‑27.5 GHz bands or parts thereof are available for terrestrial systems capable of providing wireless broadband services under harmonised conditions established by technical implementing measures adopted in accordance with Article 4 of Decision No 676/2002/EC, complementing Decision (EU) 2017/899 of the European Parliament and of the Council(36), as those bands have specific qualities, in terms of coverage and data capacity, which allow them to be combined appropriately to meet 5G requirements. Member States could, however, be affected by interference likely to arise from third countries which, in accordance with the ITU Radio Regulations, have identified those bands for services other than international mobile telecommunications. This might have an effect on the obligation to meet a common implementation date. Future use of the 26 GHz band for 5G terrestrial wireless services is likely, inter alia, to target urban areas and sub-urban hotspot areas, while some deployment can be foreseen along major roads and railway tracks in rural areas. This provides the opportunity to use the 26 GHz band for services other than 5G wireless outside those geographic areas, for example, for business specific communications or indoor use, and therefore allows Member States to designate and make that band available on a non-exclusive basis.

(136)  Where demand for a radio spectrum band exceeds the availability and, as a result, a Member State concludes that the rights of use for radio spectrum is to be limited, appropriate and transparent procedures should apply for the granting of such rights to avoid any discrimination and optimise the use of the scarce resource. Such limitation should be justified, proportionate and based on a thorough assessment of market conditions, giving due weight to the overall benefits for users and to national and internal market objectives. The objectives governing any limitation procedure should be clearly established in advance. When considering the most appropriate selection procedure, and in accordance with coordination measures taken at Union level, Member States should, in a timely and transparent manner, consult all interested parties on the justification, objectives and conditions of the procedure. Member States should be able to use, inter alia, competitive or comparative selection procedures for the assignment of radio spectrum or of numbering resources with exceptional economic value. In administering such schemes, competent authorities should take into account the objectives of this Directive. If a Member State finds that further rights can be made available in a band, it should start the process therefor.

(137)  Massive growth in radio spectrum demand, and in end-user demand for wireless broadband capacity, calls for solutions allowing alternative, complementary, spectrally efficient access solutions, including low-power wireless access systems with a small-area operating range, such as RLANs and networks of low-power small-size cellular access points. Such complementary wireless access systems, in particular publicly accessible RLAN access points, increase access to the internet for end-users and mobile traffic off-loading for mobile operators. RLANs use harmonised radio spectrum without requiring an individual authorisation or a right of use for radio spectrum. To date, most RLAN access points are used by private users as local wireless extension of their fixed broadband connection. End-users, within the limits of their own internet subscription, should not be prevented from sharing access to their RLAN with others, in order to increase the number of available access points, in particular, in densely populated areas, maximise wireless data capacity through radio spectrum re-use and create a cost-effective complementary wireless broadband infrastructure accessible to other end-users. Therefore, unnecessary restrictions to the deployment and interlinkage of RLAN access points should also be removed.

(138)  Public authorities or public service providers that use RLANs in their premises for their personnel, visitors or clients, for example to facilitate access to e-Government services or for information on public transport or road traffic management, could also provide access to such access points for general use by citizens as an ancillary service to services they offer to the public on such premises, to the extent allowed by competition and public procurement rules. Moreover, the provider of such local access to electronic communications networks within or around a private property or a limited public area on a non-commercial basis or as an ancillary service to another activity that is not dependent on such access, such as RLAN hotspots made available to customers of other commercial activities or to the general public in that area, can be subject to compliance with general authorisations for rights of use for radio spectrum but should not be subject to any conditions or requirements attached to general authorisations applicable to providers of public electronic communications networks or services or to obligations regarding end-users or interconnection. However, such a provider should remain subject to the liability rules set out in Directive 2000/31/EC of the European Parliament and of the Council(37). Further technologies, such as LiFi, are emerging and will complement current radio spectrum capabilities of RLANs and wireless access point to include optical visible light-based access points and lead to hybrid local area networks allowing optical wireless communication.

(139)  Since low power small-area wireless access points, such as femtocells, picocells, metrocells or microcells, can be very small and make use of unobtrusive equipment similar to that of domestic RLAN routers, which do not require any permits beyond those necessary for the use of radio spectrum, and considering the positive impact of such access points on the use of radio spectrum and on the development of wireless communications, any restriction to their deployment should be limited to the greatest extent possible. As a result, in order to facilitate the deployment of small-area wireless access points, and without prejudice to any applicable requirement related to radio spectrum management, Member States should not subject to any individual permits the deployment of such devices on buildings which are not officially protected as part of a designated environment or because of their special architectural or historical merit, except for reasons of public safety. To that end, their characteristics, such as maximum size, weight and emission characteristics, should be specified at Union level in a proportionate way for local deployment and to ensure a high level of protection of public health, as laid down in Recommendation 1999/519/EC. For the operation of small-area wireless access points, Article 7 of Directive 2014/53/EU should apply. This is without prejudice to private property rights set out in Union or national law. The procedure for considering permit applications should be streamlined and without prejudice to any commercial agreements and any administrative charge involved should be limited to the administrative costs relating to the processing of the application. The process of assessing a request for a permit should take as little time as possible, and in principle no longer than four months.

(140)  Public buildings and other public infrastructure are visited and used daily by a significant number of end-users who need connectivity to consume eGovernment, eTransport and other services. Other public infrastructure, such as street lamps, traffic lights, offer very valuable sites for deploying small cells, for instance, due to their density. Without prejudice to the possibility for competent authorities to subject the deployment of small-area wireless access points to individual prior permits, operators should have the right to access to those public sites for the purpose of adequately serving demand. Member States should therefore ensure that such public buildings and other public infrastructure are made available on reasonable conditions for the deployment of small‑cells with a view to complementing Directive 2014/61/EU and without prejudice to the principles set out in this Directive. Directive 2014/61/EU follows a functional approach and imposes obligations of access to physical infrastructure only when it is part of a network and only if it is owned or used by a network operator, thereby leaving many buildings owned or used by public authorities outside its scope. On the contrary, a specific obligation is not necessary for physical infrastructure, such as ducts or poles, used for intelligent transport systems, which are owned by network operators (providers of transport services or providers of public electronic communications networks), and host parts of a network, thus falling within the scope of Directive 2014/61/EU.

(141)  The provisions of this Directive as regards access and interconnection apply to public electronic communications networks. Providers of electronic communications networks other than to the public do not have access or interconnection obligations under this Directive except where, in benefiting from access to public networks, they may be subject to conditions laid down by Member States.

(142)  The term ‘access’ has a wide range of meanings, and it is therefore necessary to define precisely how that term is used in this Directive, without prejudice to how it is used in other Union measures. An operator may own the underlying network or facilities or may rent some or all of them.

(143)  In an open and competitive market, there should be no restrictions that prevent undertakings from negotiating access and interconnection arrangements between themselves, in particular on cross-border agreements, subject to the competition rules laid down in the TFEU. In the context of achieving a more efficient, truly pan-European market, with effective competition, more choice and competitive services to end-users, undertakings which receive requests for access or interconnection from other undertakings that are subject to general authorisation in order to provide electronic communications networks or services to the public should in principle conclude such agreements on a commercial basis, and negotiate in good faith.

(144)  In markets where there continue to be large differences in negotiating power between undertakings, and where some undertakings rely on infrastructure provided by others for delivery of their services, it is appropriate to establish a regulatory framework to ensure that the market functions effectively. National regulatory authorities should have the power to secure, where commercial negotiation fails, adequate access and interconnection and interoperability of services in the interest of end-users. In particular, they can ensure end-to-end connectivity by imposing proportionate obligations on undertakings that are subject to the general authorisation and that control access to end-users. Control of means of access may entail ownership or control of the physical link to the end-user (either fixed or mobile), or the ability to change or withdraw the national number or numbers needed to access an end-user's network termination point. This would be the case for example if network operators were to restrict unreasonably end-user choice for access to internet portals and services.

(145)  In light of the principle of non-discrimination, national regulatory authorities should ensure that all undertakings, irrespective of their size and business model, whether vertically integrated or separated, can interconnect on reasonable terms and conditions, with a view to providing end-to-end connectivity and access to the internet.

(146)  National legal or administrative measures that link the terms and conditions for access or interconnection to the activities of the party seeking interconnection, and specifically to the degree of its investment in network infrastructure, and not to the interconnection or access services provided, may cause market distortion and may therefore not be compatible with competition rules.

(147)  Network operators who control access to their own customers do so on the basis of unique numbers or addresses from a published numbering or addressing range. Other network operators need to be able to deliver traffic to those customers, and so need to be able to interconnect directly or indirectly to each other. It is therefore appropriate to lay down rights and obligations to negotiate interconnection.

(148)  Interoperability is of benefit to end-users and is an important aim of that regulatory framework. Encouraging interoperability is one of the objectives for national regulatory and other competent authorities as set out in that framework. That framework also provides for the Commission to publish a list of standards or specifications covering the provision of services, technical interfaces or network functions, as the basis for encouraging harmonisation in electronic communications. Member States should encourage the use of published standards or specifications to the extent strictly necessary to ensure interoperability of services and to improve freedom of choice for users.

(149)  Currently both end-to-end connectivity and access to emergency services depend on end‑users using number-based interpersonal communications services. Future technological developments or an increased use of number-independent interpersonal communications services could entail a lack of sufficient interoperability between communications services. As a consequence, significant barriers to market entry and obstacles to further onward innovation could emerge and appreciably threaten ▌ effective end-to-end connectivity between end-users ▌.

(150)  Where such interoperability issues arise, the Commission should be able to request a BEREC report which should provide a factual assessment of the market situation at Union and Member State level. Taking utmost account of the BEREC report and other available evidence and taking into account the effects on the internal market, the Commission should decide whether there is a need for regulatory intervention by national regulatory or other competent authorities. If the Commission considers that such regulatory intervention should be considered by national regulatory or other competent authorities, it should be able to adopt implementing measures specifying the nature and scope of possible regulatory interventions by national regulatory or other competent authorities, including in particular obligations to publish and allow the use, modification and redistribution of relevant information by the authorities and other providers and measures to impose the mandatory use of standards or specifications on all or specific providers.

(151)  National regulatory or other competent authorities should assess, in light of the specific national circumstances, whether any intervention is necessary and justified to ensure end‑to‑end‑connectivity ▌, and if so, impose proportionate obligations, in accordance with the Commission’s implementing measures, on those providers of number-independent interpersonal communications services with a significant level of coverage and user‑uptake. The term significant should be interpreted in the sense that the geographic coverage and the number of end-users of the provider concerned represent a critical mass with a view to achieving the goal of ensuring end-to-end connectivity between end-users. Providers with a limited number of end-users or limited geographic coverage which would contribute only marginally to achieving that goal, should normally not be subject to such interoperability obligations.

(152)  In situations where undertakings are deprived of access to viable alternatives to non-replicable wiring, cables and associated facilities inside buildings or up to the first concentration or distribution point and in order to promote competitive outcomes in the interest of end-users, national regulatory authorities should be empowered to impose access obligations on all undertakings, irrespective of a designation as having significant ▌ market power. In that regard, national regulatory authorities should take into consideration all technical and economic barriers to future replication of networks. However, as such obligations can in certain cases be intrusive, can undermine incentives for investments, and can have the effect of strengthening the position of dominant players, they should be imposed only where justified and proportionate to achieving sustainable competition in the relevant markets. The mere fact that more than one such infrastructure already exists should not necessarily be interpreted as showing that its assets are replicable. If necessary in combination with such access obligations, undertakings should also be able to rely on the obligations to provide access to physical infrastructure on the basis of Directive 2014/61/EU. Any obligations imposed by the national regulatory authority under this Directive and decisions taken by other competent authorities under Directive 2014/61/EU to ensure access to in-building physical infrastructure or to physical infrastructure up to the access point should be consistent.

(153)  National regulatory authorities should be able, to the extent necessary, to impose obligations on undertakings to provide access to the facilities referred to in an annex to this Directive, namely application programming interfaces (APIs) and electronic programme guides (EPGs), to ensure not only accessibility for end‑users to digital radio and television broadcast services but also to related complementary services. Such complementary services should be able to include programme related services which are specifically designed to improve accessibility for end-users with disabilities, and programme related connected television services.

(154)  It is important that when national regulatory authorities assess the concentration or distribution point up to which they intend to impose access, they choose a point in accordance with BEREC guidelines. Selecting a point nearer to end-users will be more beneficial to infrastructure competition and the roll-out of very high capacity networks. In this way the national regulatory authority should first consider choosing a point in a building or just outside a building. It could be justified to extend access obligations to wiring and cables beyond the first concentration or distribution point ▌while confining such obligations to points as close as possible to end-users capable of hosting a sufficient number of end-users, where it is demonstrated that replication faces high and non-transitory physical or economic barriers, leading to important competition problems or market failures at the retail level to the detriment of end‑users. The assessment of the replicability of network elements requires a market review which is different from an analysis assessing significant market power, and so the national regulatory authority does not need to establish significant market power in order to impose these obligations. On the other hand, such review requires a sufficient economic assessment of market conditions, to establish whether the criteria necessary to impose obligations beyond the first concentration or distribution point are met. Such extended access obligations are more likely to be necessary in geographical areas where the business case for alternative infrastructure rollout is more risky, for example because of low population density or because of the limited number of multi-dwelling buildings. Conversely, a high concentration of households might indicate that the imposition of such obligations is unnecessary. National regulatory authorities should also consider whether such obligations have the potential to strengthen the position of undertakings designated as having significant market power. National regulatory authorities should be able to impose access to active or virtual network elements used for service provision on such infrastructure if access to passive elements would be economically inefficient or physically impracticable, and if the national regulatory authority considers that, absent such an intervention, the purpose of the access obligation would be circumvented. In order to enhance consistent regulatory practice across the Union, the Commission should be able to require the national regulatory authority to withdraw its draft measures extending access obligations beyond the first concentration or distribution point, where BEREC shares the Commission's serious doubts as to the compatibility of the draft measure with Union law and in particular the regulatory objectives of this Directive.

(155)  In such cases, in order to comply with the principle of proportionality, it can be appropriate for national regulatory authorities to exempt certain categories of owners or undertakings, or both, from obligations going beyond the first concentration or distribution point, which should be determined by national regulatory authorities, on the grounds that an access obligation not based on an undertaking's designation as having significant market power would risk compromising their business case for recently deployed network elements, in particular by small local projects. Wholesale-only undertakings should not be subject to such access obligations if they offer an effective alternative access on a commercial basis to a very high capacity network, on fair, non-discriminatory and reasonable terms and conditions, including as regards price. It should be possible to extend that exemption to other providers on the same terms. The exemption may not be appropriate for providers that are in receipt of public funding.

(156)  Sharing of passive ▌ infrastructure used in the provision of wireless electronic communications services ▌ 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 or other competent authorities should, by way of exception, be able to impose such sharing ▌ or localised roaming access, in accordance with Union law, if that possibility has been clearly established in the original conditions for the granting of the right of use and they demonstrate the benefits of such sharing in terms of overcoming insurmountable economic or physical obstacles and access to networks or services is therefore severely deficient or absent, and taking into account several factors, including in particular the need for coverage along major transport paths, choice and a higher quality of service for end-users as well as the need to maintain infrastructure roll-out incentives. In circumstances where there is no access by end-users, and sharing of passive infrastructure alone does not suffice to address the situation, the national regulatory authorities should be able to impose obligations on the sharing of active infrastructure. In so doing, national regulatory or other competent authorities retain the flexibility to choose the most appropriate sharing or access obligation which should be proportionate and justified based on the nature of the problem identified.

(157)  While it is appropriate in some circumstances for a national regulatory or other competent authority to impose obligations on undertakings irrespective of a designation of significant market power in order to achieve goals such as end-to-end connectivity or interoperability of services, it is necessary to ensure that such obligations are imposed in accordance with the regulatory framework and, in particular, its notification procedures. Such obligations should be imposed only where justified in order to secure the objectives of this Directive, and where they are objectively justified, transparent, proportionate and non-discriminatory for the purpose of promoting efficiency, sustainable competition, efficient investment and innovation, and giving the maximum benefit to end-users, and imposed in accordance with the relevant notification procedures.

(158)  In order to overcome insurmountable economic or physical obstacles for providing end‑users with services or networks which rely on the use of radio spectrum and where mobile coverage gaps persist, their closing may require the access and sharing of passive infrastructure, or, where this is not sufficient, the sharing of active infrastructure, or localised roaming access agreements. Without prejudice to sharing obligations attached to the rights of use on the basis of other provisions of this Directive, and in particular measures to promote competition, where national regulatory or other competent authorities intend to take measures to impose the sharing of passive infrastructure, or when passive access and sharing are not sufficient, active infrastructure sharing or localised roaming access agreements, they may, however, also be called to consider the possible risk for market participants in underserved areas.

(159)  Competition rules alone may not always be sufficient to ensure cultural diversity and media pluralism in the area of digital television. Technological and market developments make it necessary to review obligations to provide conditional access on fair, reasonable and non‑discriminatory terms on a regular basis, ▌by a Member State for its national market ▌, in particular to determine whether it is justified to extend obligations to EPGs and APIs, to the extent necessary to ensure accessibility for end-users to specified digital broadcasting services. Member States should be able to specify the digital broadcasting services to which access by end-users is to be ensured by any legislative, regulatory or administrative means that they consider to be necessary.

(160)  Member States should also be able to permit their national regulatory authority to review obligations in relation to conditional access to digital broadcasting services in order to assess through a market analysis whether to withdraw or amend conditions for undertakings that do not have significant market power on the relevant market. Such a withdrawal or amendment should not adversely affect access for end-users to such services or the prospects for effective competition.

(161)  There is a need for ex ante obligations in certain circumstances in order to ensure the development of a competitive market, the conditions of which favour the deployment and take-up of very high capacity networks and services, and the maximisation of end-user benefits. The definition of significant market power used in this Directive is equivalent to the concept of dominance as defined in the case-law of the Court of Justice.

(162)  Two or more undertakings can be found to enjoy a joint dominant position not only where there exist structural or other links between them but also where the structure of the relevant market is conducive to coordinated effects, that is, it encourages parallel or aligned anti-competitive behaviour on the market.

(163)  It is essential that ex ante regulatory obligations should be imposed on a wholesale market only where there are one or more undertakings with significant market power, with a view to ensuring sustainable competition ▌ and where Union and national competition law remedies are not sufficient to address the problem. The Commission has drawn up guidelines at Union level in accordance with the principles of competition law for national regulatory authorities to follow in assessing whether competition is effective in a given market and in assessing significant market power. National regulatory authorities should analyse whether a given product or service market is effectively competitive in a given geographical area, which could be the whole or a part of the territory of the Member State concerned or neighbouring parts of territories of Member States considered together. An analysis of effective competition should include an analysis as to whether the market is prospectively competitive, and thus whether any lack of effective competition is durable. Those guidelines should also address the issue of newly emerging markets, where de facto the market leader is likely to have a substantial market share but should not be subjected to inappropriate obligations. The Commission should review the guidelines regularly, in particular on the occasion of a review of the existing law, taking into account the case-law of the Court of Justice, economic thinking and actual market experience and with a view to ensuring that they remain appropriate in a rapidly developing market. National regulatory authorities will need to cooperate with each other where the relevant market is found to be transnational.

(164)  In determining whether an undertaking has significant market power in a specific market, national regulatory authorities should act in accordance with Union law and take utmost account of the Commission guidelines on market analysis and the assessment of significant market power.

(165)  National regulatory authorities should define relevant geographic markets within their territory taking into utmost account the Commission Recommendation on relevant product and service markets (the 'Recommendation') adopted pursuant to this Directive and taking into account national and local circumstances. Therefore, national regulatory authorities should at least analyse the markets that are contained in the Recommendation, including those markets that are listed but no longer regulated in the specific national or local context. National regulatory authorities should also analyse markets that are not contained in that Recommendation, but that are regulated within the territory of their jurisdiction on the basis of previous market analyses, or other markets, if they have sufficient grounds to consider that the three criteria provided in this Directive are met.

(166)  Transnational markets can be defined when it is justified by the geographic market definition, taking into account all supply-side and demand-side factors in accordance with competition law principles. BEREC is the most appropriate body to undertake such analysis, benefiting from the extensive collective experience of national regulatory authorities when defining markets on a national level. National circumstances should be taken into account when an analysis of potential transnational markets is undertaken. If transnational markets are defined and warrant regulatory intervention, concerned national regulatory authorities should cooperate to identify the appropriate regulatory response, including in the process of notification to the Commission. They can also cooperate in the same manner where transnational markets are not identified but on their territories market conditions are sufficiently homogeneous to benefit from a coordinated regulatory approach, such as for example in terms of similar costs, market structures or operators, or in the case of transnational or comparable end-user demand.

(167)  In some circumstances geographic markets are defined as national or sub-national, for example due to the national or local nature of network roll-out which determines the boundaries of undertakings' potential market power in respect of wholesale supply, but there is still a significant transnational demand from one or more categories of end-users. That can in particular be the case for demand from business end-users with multisite facility operations in different Member States. If that transnational demand is not sufficiently met by suppliers, for example if they are fragmented along national borders or locally, a potential internal market barrier arises. Therefore, BEREC should be empowered to provide guidelines to national regulatory authorities on common regulatory approaches to ensure that transnational demand can be met in a satisfactory way, providing a basis for the interoperability of wholesale access products across the Union and permitting efficiencies and economies of scale despite the fragmented supply side. BEREC's guidelines should shape the choices of national regulatory authorities in pursuing the internal market objective when imposing regulatory obligations on undertakings designated as having significant market power at national level while providing guidance for the harmonisation of technical specifications of wholesale access products capable of meeting such identified transnational demand, in the interest of the internal market.

(168)  The objective of any ex ante regulatory intervention is ultimately to produce benefits for end-users in terms of price, quality and choice by making retail markets effectively competitive on a sustainable basis. It is likely that national regulatory authorities will gradually be able to find many retail markets to be competitive even in the absence of wholesale regulation, especially taking into account expected improvements in innovation and competition.

(169)  For national regulatory authorities, the starting point for the identification of wholesale markets susceptible to ex ante regulation is the analysis of corresponding retail markets. The analysis of effective competition at the retail and at the wholesale level is conducted from a forward-looking perspective over a given time horizon, and is guided by competition law, including, as appropriate, the relevant case law of the Court of Justice. If it is concluded that a retail market would be effectively competitive in the absence of ex ante wholesale regulation on the corresponding relevant markets, this should lead the national regulatory authority to conclude that regulation is no longer needed at the relevant wholesale level.

(170)  During the gradual transition to deregulated markets, commercial agreements, including for co-investment and access between operators will gradually become more common, and if they are sustainable and improve competitive dynamics, they can contribute to the conclusion that a particular wholesale market does not warrant ex ante regulation. A similar logic would apply in reverse, to the unforeseeable termination of commercial agreements on a deregulated market. The analysis of such agreements should take into account that the prospect of regulation can be a motive for network owners to enter into commercial negotiations. With a view to ensuring adequate consideration of the impact of regulation imposed on related markets when determining whether a given market warrants ex ante regulation, national regulatory authorities should ensure markets are analysed in a consistent manner and where possible, at the same time or as close as possible to each other in time.

(171)  When assessing wholesale regulation to solve problems at the retail level, national regulatory authorities should take into account the fact that several wholesale markets can provide wholesale upstream inputs for a particular retail market, and, conversely, that a single wholesale market can provide wholesale upstream inputs for a variety of retail markets. Furthermore, competitive dynamics in a particular market can be influenced by markets that are contiguous but not in a vertical relationship, such as can be the case between certain fixed and mobile markets. National regulatory authorities should conduct that assessment for each individual wholesale market considered for regulation, starting with remedies for access to civil infrastructure, as such remedies are usually conducive to more sustainable competition including infrastructure competition, and thereafter analysing any wholesale markets considered susceptible to ex ante regulation in order of their likely suitability to address identified competition problems at retail level. When deciding on the specific remedy to be imposed, national regulatory authorities should assess its technical feasibility and carry out a cost-benefit analysis, having regard to its degree of suitability to address the identified competition problems at retail level, and enabling competition based on differentiation and technology neutrality. National regulatory authorities should consider the consequences of imposing any specific remedy which, if feasible only on certain network topologies, could constitute a disincentive for the deployment of very high capacity networks in the interest of end-users.

(172)  Without prejudice to the principle of technology neutrality, the national regulatory authorities should provide incentives through the remedies imposed, and, where possible, before the roll-out of infrastructure, for the development of flexible and open network architecture, which would reduce eventually the burden and complexity of remedies imposed at a later stage. At each stage of the assessment, before the national regulatory authority determines whether any additional, more burdensome, remedy should be imposed on the undertaking designated as having significant market power, it should seek to determine whether the retail market concerned would be effectively competitive, also taking into account any relevant commercial arrangements or other wholesale market circumstances, including other types of regulation already in force, such as for example general access obligations to non-replicable assets or obligations imposed pursuant to Directive 2014/61/EU, and of any regulation already considered to be appropriate by the national regulatory authority for an undertaking designated as having significant market power. Such an assessment, aiming to ensure that only the most appropriate remedies necessary to effectively address any problems identified in the market analysis are imposed, does not preclude a national regulatory authority from finding that a mix of such remedies together, even if of differing intensity, in line with the proportionality principle, offers the least intrusive way of addressing the problem. Even if such differences do not result in the definition of distinct geographic markets, they should be able to justify differentiation in the appropriate remedies imposed in light of the differing intensity of competitive constraints.

(173)  Ex ante regulation imposed at the wholesale level, which is in principle less intrusive than retail regulation, is considered to be sufficient to tackle potential competition problems on the related downstream retail market or markets. The advances in the functioning of competition since the regulatory framework for electronic communications has been in place are demonstrated by the progressive deregulation of retail markets across the Union. Furthermore, the rules relating to the imposition of ex ante remedies on undertakings designated as having significant market power should, where possible, be simplified and be made more predictable. Therefore, the ▌ imposition of ex ante regulatory controls based on an undertaking's designation as having significant market power in wholesale markets should prevail.

(174)  When a national regulatory authority withdraws wholesale regulation, it should define an appropriate notice period to ensure a sustainable transition to a de-regulated market. In defining such a notice period, the national regulatory authority should take into account the existing agreements between access providers and access seekers that have been entered into on the basis of the imposed regulatory obligations. In particular, such agreements can provide a contractual legal protection to access seekers for a determined period. The national regulatory authority should also take into account the effective possibility for market participants to take up any commercial wholesale access or co‑investment offers which can be present in the market and the need to avoid an extended period of possible regulatory arbitrage. Transition arrangements established by the national regulatory authority should consider the extent and timing of regulatory oversight of pre‑existing agreements, once the notice period starts.

(175)  In order to provide market players with certainty as to regulatory conditions, a time limit for market reviews is necessary. It is important to conduct a market analysis on a regular basis and within a reasonable and appropriate time-frame. There is a risk that failure by a national regulatory authority to analyse a market within the time-limit jeopardises the internal market, and normal infringement proceedings do not produce their desired effect on time. Alternatively, the national regulatory authority concerned should be able to request the assistance of BEREC to complete the market analysis. Such assistance could, for example, take the form of a specific task force composed of representatives of other national regulatory authorities.

(176)  Due to the high level of technological innovation and highly dynamic markets in the electronic communications sector, there is a need to adapt regulation rapidly in a coordinated and harmonised way at Union level, as experience has shown that divergence among the national regulatory authorities in the implementation of the regulatory framework may create a barrier to the internal market.

(177)  However, in the interest of greater stability and predictability of regulatory measures, the maximum period allowed between market analyses should be extended from three to five years, provided market changes in the intervening period do not require a new analysis. In determining whether a national regulatory authority has complied with its obligation to analyse markets and notified the corresponding draft measure at a minimum every five years, only a notification including a new assessment of the market definition and of significant market power will be considered to be starting a new five-year market cycle. A mere notification of new or amended regulatory remedies, imposed on the basis of a previous and unrevised market analysis will not be considered to have satisfied that obligation. Non-compliance by a national regulatory authority with the obligation to conduct market analysis at regular intervals laid down in this Directive should not be considered, in itself, to be a ground for the invalidity or inapplicability of existing obligations imposed by that national regulatory authority in the market in question.

(178)  The imposition of a specific obligation on an undertaking designated as having significant market power does not require an additional market analysis but rather a justification that the obligation in question is appropriate and proportionate in relation to the nature of the problem identified on the market in question, and on the related retail market.

(179)  When assessing the proportionality of the obligations and conditions to be imposed, national regulatory authorities should take into account the different competitive conditions existing in the different areas within their Member States having regard in particular to the results of the geographical survey conducted in accordance with this Directive.

(180)  When considering whether to impose remedies to control prices, and if so in what form, national regulatory authorities should seek to allow a fair return for the investor on a particular new investment project. In particular, there are risks associated with investment projects specific to new access networks which support products for which demand is uncertain at the time the investment is made.

(181)  Reviews of obligations imposed on undertakings designated as having significant market power during the timeframe of a market analysis should allow national regulatory authorities to take into account the impact on competitive conditions of new developments, for instance of newly concluded voluntary agreements between undertakings, such as access and co-investment agreements, thus providing the flexibility which is particularly necessary in the context of longer regulatory cycles. A similar logic should apply in the case of an unforeseeable breach or termination of a commercial agreement, or if such an agreement has effects diverging from the market analysis. If the termination of an existing agreement occurs in a deregulated market, it is possible that a new market analysis is required. In the absence of a single important change in the market but in the case of dynamic markets, it may be necessary to conduct a market analysis more often than every five years, for example not earlier than every three years as was the case until the date of application of this Directive. Markets should be considered to be dynamic if the technological evolution and end-user demand patterns are likely to evolve in such a way that the conclusions of the analysis would be superseded within the medium term for a significant group of geographic areas or of end‑users within the geographic and product market defined by the national regulatory authority.

(182)  Transparency of terms and conditions for access and interconnection, including prices, serve to speed up negotiation, avoid disputes and give confidence to market players that a service is not being provided on discriminatory terms. Openness and transparency of technical interfaces can be particularly important in ensuring interoperability. Where a national regulatory authority imposes obligations to make information public, it should also be able to specify the manner in which the information is to be made available, and whether it is free of charge, taking into account the nature and purpose of the information concerned.

(183)  In light of the variety of network topologies, access products and market circumstance that have arisen since 2002, the objectives of Annex II to Directive 2002/19/EC, concerning local loop unbundling, and access products for providers of digital television and radio services, can be better achieved and in a more flexible manner, by providing guidelines on the minimum criteria for a reference offer to be developed by and periodically updated by BEREC. That Annex should therefore be deleted.

(184)  The principle of non-discrimination ensures that undertakings with significant market power do not distort competition, in particular where they are vertically integrated undertakings that supply services to undertakings with whom they compete on downstream markets.

(185)  In order to address and prevent non-price related discriminatory behaviour, equivalence of inputs (EoI) is in principle the surest way of achieving effective protection from discrimination. On the other hand, providing regulated wholesale inputs on an EoI basis is likely to trigger higher compliance costs than other forms of non-discrimination obligations. Those higher compliance costs should be measured against the benefits of more vigorous competition downstream, and of the relevance of non-discrimination guarantees in circumstances where the undertaking designated as having significant market power is not subject to direct price controls. In particular, national regulatory authorities might consider that the provision of wholesale inputs over new systems on an EoI basis is more likely to create sufficient net benefits, and thus be proportionate, given the comparatively lower incremental compliance costs to ensure that newly built systems are EoI-compliant. On the other hand, national regulatory authorities should also consider whether obligations are proportionate for affected undertakings, for example, by taking into account implementation costs and weigh up possible disincentives to the deployment of new systems, relative to more incremental upgrades, in the event that the former would be subject to more restrictive regulatory obligations. In Member States with a high number of small-scale undertakings designated as having significant market power, the imposition of EoI on each of those undertakings can be disproportionate.

(186)  Accounting separation allows internal price transfers to be rendered visible, and allows national regulatory authorities to check compliance with obligations for non-discrimination where applicable. In this regard the Commission published Recommendation 2005/698/EC(38).

(187)  Civil engineering assets that can host an electronic communications network are crucial for the successful roll-out of new ▌ networks because of the high cost of duplicating them, and the significant savings that can be made when they can be reused. Therefore, in addition to the rules on physical infrastructure laid down in Directive 2014/61/EU, a specific remedy is necessary in those circumstances where civil engineering assets are owned by an undertaking designated as having significant market power. Where civil engineering assets exist and are reusable, the positive effect of achieving effective access to them on the roll-out of competing infrastructure is very high, and it is therefore necessary to ensure that access to such assets can be used as a self-standing remedy for the improvement of competitive and deployment dynamics in any downstream market, to be considered before assessing the need to impose any other potential remedies, and not just as an ancillary remedy to other wholesale products or services or as a remedy limited to undertakings availing themselves of such other wholesale products or services. National regulatory authorities should value reusable legacy civil engineering assets on the basis of the regulatory accounting value net of the accumulated depreciation at the time of calculation, indexed by an appropriate price index, such as the retail price index, and excluding those assets which are fully depreciated, over a period of not less than 40 years, but still in use.

(188)  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 considered to be 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.

(189)  Mandating access to network infrastructure can be justified as a means of increasing competition, but national regulatory authorities need to balance the rights of an infrastructure owner to exploit its infrastructure for its own benefit, and the rights of other service providers to access facilities that are essential for the provision of competing services.

(190)  In markets where an increased number of access networks can be expected on a forward-looking basis, end-users are more likely to benefit from improvements in network quality, by virtue of infrastructure-based competition, compared to markets where only one network persists. The adequacy of competition on other parameters, such as price and choice, is likely to depend on the national and local competitive circumstances. In assessing the adequacy of competition on such parameters and the need for regulatory intervention, national regulatory authorities should also take into account whether wholesale access is available to any interested undertaking on reasonable commercial terms permitting sustainable competitive outcomes for end-users on the retail market. The application of general competition rules in ▌ markets characterised by sustainable and effective infrastructure-based competition should be sufficient.

(191)  Where obligations are imposed on undertakings that require them to meet reasonable requests for access to and use of networks elements and associated facilities, such requests should be refused only on the basis of objective criteria such as technical feasibility or the need to maintain network integrity. Where access is refused, the aggrieved party should be able to submit the case to the dispute resolutions procedures under this Directive. An undertaking with mandated access obligations cannot be required to provide types of access which it is not within its power to provide. The imposition by national regulatory authorities of mandated access that increases competition in the short term should not reduce incentives for competitors to invest in alternative facilities that will secure more sustainable competition or higher performance and end-user benefits in the long term. When choosing the least intrusive regulatory intervention, and in line with the principle of proportionality, national regulatory authorities could, for example, decide to review the obligations imposed on undertakings designated as having significant market power and amend any previous decision, including by withdrawing obligations, imposing or not imposing new access obligations if this is in the interests of users and sustainable service competition. National regulatory authorities should be able to impose technical and operational conditions on the provider or beneficiaries of mandated access in accordance with Union law. In particular the imposition of technical standards should comply with Directive (EU) 2015/1535.

(192)  Price control may be necessary when market analysis in a particular market reveals inefficient competition. In particular, undertakings designated as having significant market power should avoid a price squeeze whereby the difference between their retail prices and the interconnection or access prices charged to competitors who provide similar retail services is not adequate to ensure sustainable competition. When a national regulatory authority calculates costs incurred in establishing a service mandated under this Directive, it is appropriate to allow a reasonable return on the capital employed including appropriate labour and building costs, with the value of capital adjusted where necessary to reflect the current valuation of assets and efficiency of operations. The method of cost recovery should be appropriate to the circumstances taking account of the need to promote efficiency, sustainable competition and deployment of very high capacity networks and thereby maximise end-user benefits, and should take in account the need to have predictable and stable wholesale prices for the benefit of all operators seeking to deploy new and enhanced networks, in accordance with Commission Recommendation 2013/466/EU(39).

(193)  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. National regulatory authorities should be able to decide to maintain or not to impose regulated wholesale access prices on next-generation networks if sufficient competition safeguards are present. More specifically, to prevent excessive prices in markets where there are undertakings designated as having significant market power, pricing flexibility should be accompanied by additional safeguards to protect competition and end-user interests, such as strict 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. 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 undertaking designated as having significant market power to charge prices appreciably above the competitive level or where lower population density reduces the incentives for the development of very high capacity networks and the national regulatory authority establishes that effective and non-discriminatory access is ensured through obligations imposed in accordance with this Directive.

(194)  Where a national regulatory authority imposes obligations to implement a cost-accounting system in order to support price controls, it should be able to undertake an annual audit to ensure compliance with that cost-accounting system, provided that it has the necessary qualified staff, or to require such an audit to be carried out by another qualified body, independent of the undertaking concerned.

(195)  The charging system in the Union for wholesale voice call termination is based on Calling Party Network Pays. An analysis of demand and supply substitutability shows that currently or in the foreseeable future, there are no substitutes at wholesale level which might constrain the setting of charges for termination in a given network. Taking into account the two-way access nature of termination markets, further potential competition problems include cross-subsidisation between operators. Those potential competition problems are common to both fixed and mobile voice call termination markets. Therefore, in light of the ability and incentives of terminating operators to raise prices substantially above cost, cost orientation is considered to be the most appropriate intervention to address this concern over the medium term. Future market developments may alter the dynamics of those markets to the extent that regulation would no longer be necessary.

(196)  In order to reduce the regulatory burden in addressing the competition problems relating to wholesale voice call termination consistently across the Union, the Commission should establish, by means of a delegated act, a single maximum voice termination rate for mobile services and a single maximum voice termination rate for fixed services that apply Union‑wide.

(197)  This Directive should lay down the detailed criteria and parameters on the basis of which the values of voice call termination rates are set. Termination rates across the Union have decreased consistently and are expected to continue to do so. When the Commission determines the maximum termination rates in the first delegated act that it adopts pursuant to this Directive, it should disregard any unjustified exceptional national deviation from that trend.

(198)  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 offer significant benefits in terms of pooling of costs and risks, enabling smaller-scale undertakings to invest on economically rational terms and thus promoting sustainable, long-term competition, including in areas where infrastructure‑based competition might not be efficient. Such co-investments can take different forms, including co-ownership of network assets or long-term risk sharing through co-financing or through purchase agreements. In that context, purchase agreements which constitute co-investments entail the acquisition of specific rights to capacity of a structural character, involving a degree of co-determination and enabling co-investors to compete effectively and sustainably in the long term in downstream markets in which the undertaking designated as having significant market power is active. By contrast, commercial access agreements that are limited to the rental of capacity do not give rise to such rights and therefore should not be considered to be co-investments.

(199)  Where an undertaking designated as having significant market power makes an offer for co-investment on fair, reasonable and non-discriminatory terms in ▌very high capacity networks that consist of optical fibre elements up to the end-user premises or the base station, providing an opportunity to undertakings of different sizes and financial capacity to become infrastructure co-investors, the national regulatory authority should be able to refrain from imposing obligations pursuant to this Directive on the new very high capacity network if at least one potential co-investor has entered into a co-investment agreement with that undertaking. Where a national regulatory authority decides to make binding a co-investment offer that has not resulted in an agreement, and decides, not to impose additional regulatory obligations, it can do so, subject to the condition that such an agreement is to be concluded before the deregulatory measure takes effect. Where it is technically impracticable to deploy optical fibre elements up to the end-user's premises, very high capacity networks consisting of optical fibre elements up to the immediate proximity of, meaning just outside, such premises should also be able to benefit from the same regulatory treatment.

(200)  When making a determination to refrain from imposing obligations, the national regulatory authority should take such steps after ensuring that the co-investment offers comply with the necessary criteria and are made in good faith. The differential regulatory treatment of new very high capacity networks should be subject to review in subsequent market analyses which, in particular after some time has elapsed, may require adjustments to the regulatory treatment. In duly justified circumstances, national regulatory authorities should be able to impose obligations on such new network elements when they establish that certain markets would, in the absence of regulatory intervention, face significant competition problems. In particular, when there are multiple downstream markets that have not reached the same degree of competition, national regulatory authorities could require specific asymmetric remedies to promote effective competition, for instance, but not limited to, niche retail markets, such as electronic communications products for business end-users. To maintain the competitiveness of the markets, national regulatory authorities should also safeguard the rights of access seekers who do not participate in a given co-investment. This should be achieved through the maintenance of existing access products or, where legacy network elements are dismantled in due course, through the imposition of access products with at least comparable functionality and quality to those previously available on the legacy infrastructure, in both cases subject to an appropriate adaptable mechanism validated by the national regulatory authority that does not undermine the incentives for co-investors.

(201)  In order to enhance the consistent regulatory practice across the Union, where national regulatory authorities conclude that the conditions of the co-investment offer are met, the Commission should be able to require the national regulatory authority to withdraw its draft measures either refraining from imposing obligations or intervening with regulatory obligations in order to address significant competition problems, where BEREC shares the Commission's serious doubts as to the compatibility of the draft measure with Union law and in particular the regulatory objectives of this Directive. In the interest of efficiency, a national regulatory authority should be able to submit a single notification to the Commission of a draft measure that relates to a co-investment scheme that meets the relevant conditions. Where the Commission does not exercise its powers to require the withdrawal of the draft measure, it would be disproportionate for subsequent simplified notifications of individual draft decisions of the national regulatory authority on the basis of the same scheme, including in addition evidence of actual conclusion of an agreement with at least one co-investor, to be subject to a decision requiring withdrawal in the absence of a change in circumstances. Furthermore, obligations imposed on undertakings, irrespective of whether they are designated as having significant market power, pursuant to this Directive or to Directive 2014/61/EU continue to apply. Obligations in relation to co-investment agreements are without prejudice to the application of Union law.

(202)  The purpose of functional separation, whereby the vertically integrated undertaking is required to establish operationally separate business entities, is to ensure the provision of fully equivalent access products to all downstream operators, including the operator’s own vertically integrated downstream divisions. Functional separation has the capacity to improve competition in several relevant markets by significantly reducing the incentive for discrimination and by making it easier to verify and enforce compliance with non-discrimination obligations. In exceptional cases, it should be possible for functional separation to be justified as a remedy where there has been persistent failure to achieve effective non-discrimination in several of the markets concerned, and where there is little or no prospect of infrastructure competition within a reasonable time-frame after recourse to one or more remedies previously considered to be appropriate. However, it is very important to ensure that its imposition preserves the incentives of the undertaking concerned to invest in its network and that it does not entail any potential negative effects on consumer welfare. Its imposition requires a coordinated analysis of different relevant markets related to the access network, in accordance with the market analysis procedure. When undertaking the market analysis and designing the details of that remedy, national regulatory authorities should pay particular attention to the products to be managed by the separate business entities, taking into account the extent of network roll-out and the degree of technological progress, which may affect the substitutability of fixed and wireless services. In order to avoid distortions of competition in the internal market, proposals for functional separation should be approved in advance by the Commission.

(203)  The implementation of functional separation should not prevent appropriate coordination mechanisms between the different separate business entities in order to ensure that the economic and management supervision rights of the parent company are protected.

(204)  Where a vertically integrated undertaking chooses to transfer a substantial part or all of its local access network assets to a separate legal entity under different ownership or by establishing a separate business entity for dealing with access products, the national regulatory authority should assess the effect of the intended transaction, including any access commitments offered by this undertaking, on all existing regulatory obligations imposed on the vertically integrated undertaking in order to ensure the compatibility of any new arrangements with this Directive. The national regulatory authority concerned should undertake a new analysis of the markets in which the segregated entity operates, and impose, maintain, amend or withdraw obligations accordingly. To that end, the national regulatory authority should be able to request information from the undertaking.

(205)  It is already possible today in some markets that as part of the market analysis the undertakings designated as having significant market power are able to offer commitments which aim to address competition problems identified by the national regulatory authority and which the national regulatory authority then takes into account in deciding on the appropriate regulatory obligations. Any new market developments should be taken into account in deciding on the most appropriate remedies. However, and without prejudice to the provisions on regulatory treatment of co-investments, the nature of the commitments offered as such does not limit the discretion accorded to the national regulatory authority to impose remedies on undertakings designated as having significant market power. In order to enhance transparency and to provide legal certainty across the Union, the procedure for undertakings to offer commitments and for the national regulatory authorities to assess them, taking into account the views of market participants by means of a market test, and if appropriate to make them binding on the committing undertaking and enforceable by the national regulatory authority, should be laid down in this Directive. Unless the national regulatory authority has made commitments on co-investments binding and decided not to impose obligations, that procedure is without prejudice to the application of the market analysis procedure and the obligation to impose appropriate and proportionate remedies to address the identified market failure.

(206)  National regulatory authorities should be able to make the commitments binding, wholly or in part, for a specific period which should not exceed the period for which they are offered, after having conducted a market test by means of a public consultation of interested parties. Where the commitments have been made binding, the national regulatory authority should consider the consequences of this decision in its market analysis and take them into account when choosing the most appropriate regulatory measures. National regulatory authorities should consider the commitments made from a forward-looking perspective of sustainability, in particular when choosing the period for which they are made binding, and should have regard to the value placed by stakeholders in the public consultation on stable and predictable market conditions. Binding commitments related to voluntary separation by a vertically integrated undertaking which has been designated as having significant market power in one or more relevant markets can add predictability and transparency to the process, by setting out the process of implementation of the planned separation, for example by providing a roadmap for implementation with clear milestones and predictable consequences if certain milestones are not met.

(207)  The commitments can include the appointment of a monitoring trustee, whose identity and mandate should be approved by the national regulatory authority, and the obligation on the undertaking offering them to provide periodic implementation reports.

(208)  Network owners ▌whose business model is ▌ limited to the provision of wholesale services to others, can be beneficial to the creation of a thriving wholesale market, with positive effects on retail competition downstream. Furthermore, their business model can be attractive to potential financial investors in less volatile infrastructure assets and with longer term perspectives on deployment of very high capacity networks. Nevertheless, the presence of a wholesale-only undertaking does not necessarily lead to effectively competitive retail markets, and wholesale-only undertakings can be designated as having significant market power in particular product and geographic markets. Certain competition risks arising from the behaviour of undertakings following wholesale-only business models might be lower than for vertically integrated undertakings, provided the wholesale-only model is genuine and no incentives to discriminate between downstream providers exist. The regulatory response should therefore be commensurately less intrusive, but should preserve in particular the possibility to introduce obligations in relation to fair and reasonable pricing. On the other hand, national regulatory authorities should be able to intervene if competition problems have arisen to the detriment of end-users. An undertaking active on a wholesale market that supplies retail services solely to business users larger than small and medium-sized enterprises should be regarded as a wholesale-only undertaking.

(209)  To facilitate the migration from legacy copper networks to next-generation networks, which is in the interests of end-users, national regulatory authorities should be able to monitor network operators' own initiatives in this respect and to establish, where necessary, the conditions for an appropriate migration process, for example by means of prior notice, transparency and availability of alternative access products of at least comparable quality, once the network owner has demonstrated the intent and readiness ▌to switch to upgraded networks. In order to avoid unjustified delays to the migration, national regulatory authorities should be empowered to withdraw access obligations relating to the copper network once an adequate migration process has been established and compliance with conditions and process for migration from legacy infrastructure is ensured. However, network owners should be able to decommission legacy networks. Access seekers migrating from an access product based on legacy infrastructure to an access product based on a more advanced technology or medium should be able to upgrade their access to any regulated product with higher capacity, but should not be required to do so. In the case of an upgrade, access seekers should adhere to the regulatory conditions for access to the higher capacity access product, as determined by the national regulatory authority in its market analysis.

(210)  The liberalisation of the telecommunications sector and increasing competition and choice for communications services go hand in hand with parallel action to create a harmonised regulatory framework which secures the delivery of universal service. The concept of universal service should evolve to reflect advances in technology, market developments and changes in user demand.

(211)  Under Article 169 TFEU, the Union is to contribute to the protection of consumers.

(212)  Universal service is a safety net to ensure that a set of at least the minimum services is available to all end-users and at an affordable price to consumers, where a risk of social exclusion arising from the lack of such access prevents citizens from full social and economic participation in society.

(213)  Basic broadband internet access is virtually universally available across the Union and very widely used for a broad range of activities. However, the overall take-up rate is lower than availability as there are still those who are disconnected due to reasons related to awareness, cost, skills and due to choice. Affordable adequate broadband internet access has become of crucial importance to society and the wider economy. It provides the basis for participation in the digital economy and society through essential online internet services.

(214)  A fundamental requirement of universal service is to ensure that all consumers have access at an affordable price to an available adequate broadband internet access and voice communications services, ▌ at a fixed location. Member States should also have the possibility to ensure affordability of adequate broadband internet access and voice communications services other than at a fixed location ▌ to citizens on the move, where they consider that this is necessary to ensure consumers' full social and economic participation in society. Particular attention should be paid in that context to ensuring that end-users with disabilities have equivalent access. There should be no limitations on the technical means by which the connection is provided, allowing for wired or wireless technologies, nor any limitations on the category of providers which provide part or all of universal service obligations.

(215)  The speed of internet access experienced by a given user depends on a number of factors, including the providers of internet connectivity as well as the given application for which a connection is being used. It is for the Member States, taking into account BEREC's report on best practices, to define adequate broadband internet access in light of national conditions and the minimum bandwidth enjoyed by the majority of consumers within a Member State’s territory in order to allow an adequate level of social inclusion and participation in the digital economy and society in their territory. The affordable adequate broadband internet access service should have sufficient bandwidth to support access to and use of at least a minimum set of basic services that reflect the services used by the majority of end-users. To that end, the Commission should monitor the development in the use of the internet to identify those online services used by a majority of end-users across the Union and necessary for social and economic participation in society and update the list accordingly. The requirements of Union law on open internet access, in particular of Regulation (EU) 2015/2120, should apply to any adequate broadband internet access service.

(216)  Consumers should not be obliged to access services they do not want and it should therefore be possible for eligible consumers to restrict, on request, the affordable universal service to voice communications services.

(217)  Member States should be able to extend measures related to affordability and control of expenditure measures to microenterprises and small and medium-sized enterprises and not‑for‑profit organisations, provided they fulfil the relevant conditions.

(218)  National regulatory authorities in coordination with other competent authorities should be able to monitor the evolution and level of retail tariffs for services that fall within the scope of universal service obligations. Such monitoring should be carried out in such a way that it would not represent an excessive administrative burden for either national regulatory and other competent authorities or providers of such services.

(219)  An affordable price means a price defined by Member States at national level in light of specific national conditions. Where Member States establish that retail prices for adequate broadband internet access and voice communications services are not affordable to consumers with low-income or special social needs, including older people, end-users with disabilities and consumers living in rural or geographically isolated areas, they should take appropriate measures. To that end, Member States could provide those consumers with direct support for communication purposes, which could be part of social allowances or vouchers for, or direct payments to, those consumers. This can be an appropriate alternative having regard to the need to minimise market distortions. Alternatively, or in addition, Member States could require providers of such services to offer basic tariff options or packages to those consumers.

(220)  Ensuring affordability may involve special tariff options or packages to deal with the needs of low-income users or users with special social needs ▌. Such offers should be provided with basic features, in order to avoid distortion of the functioning of the market. Affordability for individual consumers should be founded upon their right to contract with a provider, availability of a number, continued connection of service and their ability to monitor and control their expenditure.

(221)  Where a Member State requires providers to offer to consumers with a low-income or special social needs tariff options or packages different from those provided under normal commercial conditions, those tariff options or packages should be provided by all providers of internet access and voice communication services. In accordance with the principle of proportionality, requiring all providers of internet access and voice communication services to offer tariff options or packages should not result in excessive administrative or financial burden for those providers or Member States. Where a Member State demonstrates such an excessive administrative or financial burden, on the basis of an objective assessment, it might exceptionally decide to impose the obligation to offer specific tariff options or packages only on designated providers. The objective assessment should also consider the benefits arising for consumers with a low-income or special social needs from a choice of providers and the benefits for all providers being able to benefit from being a universal service provider. Where a Member State exceptionally decides to impose the obligation to offer specific tariff options or packages only on designated providers, they should ensure that consumers with low income or special needs have a choice of providers offering social tariffs. However, in certain situations Member States might not be able to guarantee a choice of providers, for example where only one undertaking provides services in the area of residence of the beneficiary, or if providing a choice would put an excessive additional organisational and financial burden on the Member State.

(222)  Affordability should no longer be a barrier to consumers' access to the minimum set of connectivity services. A right to contract with a provider should mean that consumers who might face refusal, in particular those with a low-income or special social needs, should have the possibility to enter into a contract for the provision of affordable adequate broadband internet access and voice communications services at least at a fixed location with any provider of such services in that location or a designated provider, where a Member State has exceptionally decided to designate one or more providers to offer those tariff options or packages. In order to minimise the financial risks such as non-payment of bills, providers should be free to provide the contract under pre-payment terms, on the basis of affordable individual pre-paid units.

(223)  In order to ensure that citizens are reachable by voice communications services, Member States should ensure the availability of a number for a reasonable period also during periods of non-use of voice communications services. Providers should be able to put in place mechanisms to check the continued interest of the consumer in keeping the availability of the number.

(224)  Compensating providers of such services in such circumstances need not result in the distortion of competition, provided that such providers are compensated for the specific net cost involved and provided that the net cost burden is recovered in a competitively neutral way.

(225)  In order to assess the need for affordability measures, national regulatory authorities in coordination with other competent authorities should be able to monitor the evolution and details of offers of tariff options or packages for consumers with a low-income or special social needs.

(226)  Member States should introduce measures to promote the creation of a market for affordable products and services incorporating facilities for consumers with disabilities, including equipment with assistive technologies. This can be achieved, inter alia, by referring to European standards, or by supporting the implementation of requirements under Union law harmonising accessibility requirements for products and services. Member States should introduce appropriate measures in accordance with national circumstances, which gives flexibility for Member States to take specific measures for instance if the market is not delivering affordable products and services incorporating facilities for consumers with disabilities under normal economic conditions. Those measures could include direct financial support to end‑users. The cost to consumers with disabilities of relay services should be equivalent to the average cost of voice communications services.

(227)  Relay services refer to services which enable two-way communication between remote end-users of different modes of communication (for example text, sign, speech) by providing conversion between those modes of communication, normally by a human operator. Real time text is defined in accordance with Union law harmonising accessibility requirements for products and services and refers to form of text conversation in point to point situations or in multipoint conferencing where the text being entered is sent in such a way that the communication is perceived by the user as being continuous on a character-by-character basis.

(228)  For data communications at data rates that are sufficient to permit an adequate broadband internet access, fixed-line connections are nearly universally available and used by a majority of citizens of the Union. The standard fixed broadband coverage and availability in the Union stood at 97 % of homes in 2015, with an average take-up rate of 72 %, and services based on wireless technologies have even greater reach. However, there are differences between Member States as regards availability and affordability of fixed broadband across urban and rural areas.

(229)  The market has a leading role to play in ensuring availability of broadband internet access with constantly growing capacity. In areas where the market would not deliver, other public policy tools to support availability of adequate broadband internet access connections appear, in principle, more cost-effective and less market-distortive than universal service obligations, for example recourse to financial instruments such as those available under the European Fund for Strategic Investments and Connecting Europe Facility, the use of public funding from the European structural and investment funds, attaching coverage obligations to rights of use for radio spectrum to support the deployment of broadband networks in less densely populated areas and public investment in accordance with Union State aid rules.

(230)  If, after carrying out a due assessment, taking into account the results of the geographical survey of networks deployment conducted by the competent authority, or the latest information available to the Member States before the results of the first geographical survey are available, it is shown that neither the market nor public intervention mechanisms are likely to provide end-users in certain areas with a connection capable of delivering adequate broadband internet access service as defined by Member States and voice communications services at a fixed location, the Member State should be able to exceptionally designate different providers or sets of providers of those services in the different relevant parts of the national territory. In addition to the geographical survey, Member States should be able to use, where necessary, any additional evidence to establish to what extent adequate broadband internet access and voice communications services are available at a fixed location. That additional evidence could include data available to the national regulatory authorities through the market analysis procedure and data collected from users. Member States should be able to restrict universal service obligations in support of availability of adequate broadband internet access services to the end-user’s primary location or residence. There should be no constraints on the technical means by which the adequate broadband internet access and voice communications services at a fixed location are provided, allowing for wired or wireless technologies, nor any constraints on which undertakings provide part or all of universal service obligations.

(231)  In accordance with the principle of subsidiarity, it is for the Member States to decide on the basis of objective criteria which undertakings are designated as universal service providers, where appropriate taking into account the ability and the willingness of undertakings to accept all or part of the universal service obligations. This does not preclude Member States from including, in the designation process, specific conditions justified on grounds of efficiency, including grouping geographical areas or components or setting minimum periods for the designation.

(232)  The costs of ensuring the availability of a connection capable of delivering an adequate broadband internet access service as identified in accordance with this Directive and voice communications services at a fixed location at an affordable price within the universal service obligations should be estimated, in particular by assessing the expected financial burden for providers and users in the electronic communications sector.

(233)  A priori, requirements to ensure nation-wide territorial coverage imposed in the designation procedure are likely to exclude or dissuade certain undertakings from applying for being designated as universal service providers. Designating providers with universal service obligations for an excessive or indefinite period might also lead to an a priori exclusion of certain providers. Where a Member State decides to designate one or more providers for affordability purposes, it should be possible for those providers to be different from those designated for the availability element of universal service.

(234)  When a provider that is, on an exceptional basis, designated to provide tariff options or packages different from those provided under normal commercial conditions, as identified in accordance with this Directive or to ensure the availability at a fixed location of an adequate broadband internet access service or voice communications services, as identified in accordance with this Directive, chooses to dispose of a substantial part, viewed in light of its universal service obligations, or all, of its local access network assets in the national territory to a separate legal entity under different ultimate ownership, the competent authority should assess the effects of the transaction in order to ensure the continuity of universal service obligations in all or parts of the national territory. To that end, the competent authority which imposed the universal service obligations should be informed by the provider in advance of the disposal. The assessment of the competent authority should not prejudice the completion of the transaction.

(235)  In order to provide stability and support a gradual transition, Member States should be able to continue to ensure the provision of universal service in their territory, other than adequate broadband internet access and voice communications services at a fixed location, that are included in the scope of their universal service obligations on the basis of Directive 2002/22/EC on the date of entry into force of this Directive, provided the services or comparable services are not available under normal commercial circumstances. Allowing the continuation of the provision of public payphones to the general public by use of coins, credit or debit cards, or pre-payment cards, including cards for use with dialling codes, directories and directory enquiry services under the universal service regime, for as long as the need is demonstrated, would give Member States the flexibility necessary to duly take into account the varying national circumstances. This can include providing public pay telephones in the main entry points of the country, such as airports or train and bus stations, as well as places used by people in the case of an emergency, such as hospitals, police stations and highway emergency areas, to meet the reasonable needs of end-users, including in particular end-users with disabilities.

(236)  Member States should monitor the situation of consumers with respect to their use of adequate broadband internet access and voice communications services and in particular with respect to affordability. The affordability of adequate broadband internet access and voice communications services is related to the information which users receive regarding usage expenses as well as the relative cost of usage compared to other services, and is also related to their ability to control expenditure. Affordability therefore means giving power to consumers through obligations imposed on providers. Those obligations include a specified level of itemised billing, the possibility for consumers selectively to block certain calls, such as high-priced calls to premium services, to control expenditure via pre-payment means, and to offset up‑front connection fees. Such measures may need to be reviewed and changed in light of market developments. Itemised bills on the usage of internet access should indicate only the time, duration and amount of consumption during a usage session but not indicate the websites or internet end-points connected to during such a usage session.

(237)  Except in cases of persistent late payment or non-payment of bills, consumers entitled to affordable tariffs should, pending resolution of the dispute, be protected from immediate disconnection from the network on the grounds of an unpaid bill and, in particular, in the case of disputes over high bills for premium-rate services, continue to have access to essential voice communications services and a minimum service level of internet access as defined by Member States. It should be possible for Member States to decide that such access is to continue to be provided only if the subscriber continues to pay line rental or basic internet access charges.

(238)  Where the provision of adequate broadband internet access and voice communications services or the provision of other ▌services in accordance with this Directive result in an unfair burden on a provider, taking due account of the costs and revenues as well as the intangible benefits resulting from the provision of the services concerned, that unfair burden can be included in any net cost calculation of universal service obligations.

(239)  Member States should, where necessary, establish mechanisms for financing the net cost of universal service obligations in cases where it is demonstrated that the obligations can only be provided at a loss or at a net cost which falls outside normal commercial standards. It is important to ensure that the net cost of universal service obligations is properly calculated and that any financing is undertaken with minimum distortion to the market and to undertakings, and is compatible with Articles 107 and 108 TFEU.

(240)  Any calculation of the net cost of universal service obligations should take due account of costs and revenues, as well as the intangible benefits resulting from providing universal service, but should not hinder the general aim of ensuring that pricing structures reflect costs. Any net costs of universal service obligations should be calculated on the basis of transparent procedures.

(241)  Taking into account intangible benefits means that an estimate in monetary terms, of the indirect benefits that an undertaking derives by virtue of its position as universal service provider, should be deducted from the direct net cost of universal service obligations in order to determine the overall cost burden.

(242)  When a universal service obligation represents an unfair burden on a provider, it is appropriate to allow Member States to establish mechanisms for efficiently recovering net costs. Recovery via public funds constitutes one method of recovering the net costs of universal service obligations. Sharing the net costs of universal service obligations between providers of electronic communications networks and services is another method. Member States should be able to finance the net costs of different elements of universal service through different mechanisms, or to finance the net costs of some or all elements from either of the mechanisms or a combination of both. Adequate broadband internet access brings benefits not only to the electronic communications sector but also to the wider online economy and to society as a whole. Providing a connection which supports broadband speeds to an increased number of end-users enables them to use online services and so actively to participate in the digital society. Ensuring such connections on the basis of universal service obligations serves both the public interest and the interests of electronic communications providers. Those facts should be taken into account by Member States when choosing and designing mechanisms for recovering net costs.

(243)  In the case of cost recovery by means of sharing the net cost of universal service obligations between providers of electronic communications networks and services, Member States should ensure that the method of allocation amongst providers is based on objective and non‑discriminatory criteria and is in accordance with the principle of proportionality. This principle does not prevent Member States from exempting new entrants which have not achieved any significant market presence. Any funding mechanism should ensure that market participants only contribute to the financing of universal service obligations and not to other activities which are not directly linked to the provision of the universal service obligations. Recovery mechanisms should respect the principles of Union law, and in particular in the case of sharing mechanisms those of non‑discrimination and proportionality. Any funding mechanism should ensure that users in one Member State do not contribute to the costs of providing universal service in another Member State. It should be possible to share the net cost of universal service obligations between all or certain specified classes of providers. Member States should ensure that the sharing mechanism respects the principles of transparency, least market distortion, non-discrimination and proportionality. Least market distortion means that contributions should be recovered in a way that as far as possible minimises the impact of the financial burden falling on end‑users, for example by spreading contributions as widely as possible.

(244)  Providers benefiting from universal service funding should provide national regulatory authorities with a sufficient level of detail of the specific elements requiring such funding in order to justify their request. Member States' schemes for the costing and financing of universal service obligations should be communicated to the Commission for verification of compatibility with the TFEU. Member States should ensure effective transparency and control of amounts charged to finance universal service obligations. Calculation of the net costs of providing universal service should be based on an objective and transparent methodology to ensure the most cost-effective provision of universal service and promote a level playing field for market participants. Making the methodology intended to be used to calculate the net costs of individual universal service elements known in advance before implementing the calculation could help to achieve increased transparency.

(245)  Member States are not permitted to impose on market participants financial contributions which relate to measures which are not part of the universal service obligations. Individual Member States remain free to impose special measures (outside the scope of universal service obligations) and finance them in accordance with Union law but not by means of contributions from market participants.

(246)  In order to effectively support the free movement of goods, services and persons within the Union, it should be possible to use certain national numbering resources, in particular certain non-geographic numbers, in an extraterritorial manner, that is to say outside the territory of the assigning Member State. In light of the considerable risk of fraud with respect to interpersonal communications, such extraterritorial use should be allowed only for the provision of electronic communications services other than interpersonal communications services. Enforcement of relevant national laws, in particular consumer protection rules and other rules related to the use of numbering resources should be ensured by Member States independently of ▌ where the rights of use ▌have been granted and where the numbering resources are used within the Union. Member States remain competent to apply their national law to numbering resources used in their territory, including where rights have been granted in another Member State.

(247)  The national regulatory or other competent authorities of the Member States where numbering resources from another Member State are used, do not have control over those numbering resources. It is therefore essential that the national regulatory or other competent authority of the Member State which grants the rights of extraterritorial use should also ensure the effective protection of the end-users in the Member States where those numbers are used. In order to achieve effective protection, national regulatory or other competent authority granting rights of extraterritorial use should attach conditions in accordance with this Directive regarding the respect by the provider of consumer protection rules and other rules related to the use of numbering resources in those Member States where those resources will be used.

(248)  The national regulatory or other competent authorities of those Member States where numbering resources are used should be able to request the support of the national regulatory or other competent authorities that granted the rights of use for the numbering resources to assist in enforcing its rules. Enforcement measures by the national regulatory or other competent authorities that granted the rights of use should include dissuasive penalties, in particular in the case of a serious breach the withdrawal of the right of extraterritorial use for the numbering resources assigned to the undertaking concerned. The requirements on extraterritorial use should be without prejudice to Member States' powers to block, on a case-by-case basis, access to numbers or services where that is justified by reasons of fraud or misuse. The extraterritorial use of numbering resources should be without prejudice to Union rules related to the provision of roaming services, including those relative to preventing anomalous or abusive use of roaming services which are subject to retail price regulation and which benefit from regulated wholesale roaming rates. Member States should continue to be able to enter into specific agreements on extraterritorial use of numbering resources with third countries.

(249)  Member States should promote over-the-air provisioning of numbering resources to facilitate switching of electronic communications providers. Over-the-air provisioning of numbering resources enables the reprogramming of communications equipment identifiers without physical access to the devices concerned. This feature is particularly relevant for machine-to-machine services, that is to say services involving an automated transfer of data and information between devices or software-based applications with limited or no human interaction. Providers of such machine-to-machine services might not have recourse to physical access to their devices due to their use in remote conditions, or to the large number of devices deployed or to their usage patterns. In light of the emerging machine-to-machine market and new technologies, Member States should strive to ensure technology neutrality in promoting over-the-air provisioning.

(250)  Access to numbering resources on the basis of transparent, objective and non-discriminatory criteria is essential for undertakings to compete in the electronic communications sector. Member States should be able to grant rights of use for numbering resources to undertakings other than providers of electronic communications networks or services in light of the increasing relevance of numbers for various Internet of Things services. All elements of national numbering plans should be managed by national regulatory or other competent authorities, including point codes used in network addressing. Where there is a need for harmonisation of numbering resources in the Union to support the development of pan-European services or cross-border services, in particular new machine-to-machine-based services such as connected cars, and where the demand could not be met on the basis of the existing numbering resources in place, the Commission can take implementing measures with the assistance of BEREC.

(251)  It should be possible to fulfil the requirement to publish decisions on the granting of rights of use for numbering resources by making those decisions publicly accessible via a website.

(252)  Considering the particular aspects related to the reporting of missing children, Member States should maintain their commitment to ensure that a well-functioning service for reporting missing children is actually available in their territories under the number ‘116000’. Member States should take appropriate measures to ensure that a sufficient level of service quality in operating the ‘116000’ number is achieved.

(253)  In parallel with the missing children hotline number ‘116000’, many Member States also ensure that children have access to a child-friendly service operating a helpline that helps children in need of care and protection through the use of the ‘116111’ number. Such Member States and the Commission should ensure that awareness is raised among citizens, and in particular among children and among national child protection systems, about the existence of the ‘116111’ helpline.

(254)  An internal market implies that end-users are able to access all numbers included in the national numbering plans of other Member States and to access services using non‑geographic numbers, including freephone and premium-rate numbers, within the Union, except where the called end-user has chosen, for commercial reasons, to limit access from certain geographical areas. End-users should also be able to access numbers from the Universal International Freephone Numbers (UIFN). Cross-border access to numbering resources and associated services should not be prevented, except in objectively justified cases, for example to combat fraud or abuse (for example, in connection with certain premium-rate services), when the number is defined as having a national scope only (for example, a national short code) or when it is ▌ economically unfeasible. Tariffs charged to parties calling from outside the Member State concerned need not be the same as for those parties calling from inside that Member State. Users should be fully informed in advance and in a clear manner of any charges applicable to freephone numbers, such as international call charges for numbers accessible through standard international dialling codes. Where interconnection or other service revenues are withheld by providers of electronic communications services for reasons of fraud or misuse, Member States should ensure that retained service revenues are refunded to the end-users affected by the relevant fraud or misuse where possible.

(255)  In accordance with the principle of proportionality, a number of provisions on end-user rights in this Directive should not apply to microenterprises which provide only number-independent interpersonal communications services. According to the case law of the Court of Justice, the definition of small and medium-sized enterprises, which includes microenterprises, is to be interpreted strictly. In order to include only enterprises that are genuinely independent microenterprises, it is necessary to examine the structure of microenterprises which form an economic group, the power of which exceeds the power of a microenterprise, and to ensure that the definition of microenterprise is not circumvented by purely formal means.

(256)  The completion of the single market for electronic communications requires the removal of barriers for end-users to have cross-border access to electronic communications services across the Union. Providers of electronic communications to the public should not deny or restrict access or discriminate against end-users on the basis of their nationality ▌, or Member State of residence or of establishment. Differentiation should, however, be possible on the basis of objectively justifiable differences in costs and risks, not limited to the measures provided for in Regulation (EU) No 531/2012 in respect of abusive or anomalous use of regulated retail roaming services.

(257)  Divergent implementation of the rules on end-user protection has created significant internal market barriers affecting both providers of electronic communications services and end-users. Those barriers should be reduced by the applicability of the same rules ensuring a high common level of protection across the Union. A calibrated full harmonisation of the end-user rights covered by this Directive should considerably increase legal certainty for both end-users and providers of electronic communications services, and should significantly lower entry barriers and unnecessary compliance burden stemming from the fragmentation of the rules. Full harmonisation helps to overcome barriers to the functioning of the internal market resulting from such national provisions concerning end-user rights which at the same time protect national providers against competition from other Member States. In order to achieve a high common level of protection, several provisions concerning end-user rights should be reasonably enhanced in this Directive in light of best practices in Member States. Full harmonisation of their rights increases the trust of end-users in the internal market as they benefit from an equally high level of protection when using electronic communications services, not only in their Member State but also while living, working or travelling in other Member States. Full harmonisation should extend only to the subject matters covered by the provisions on end-user rights in this Directive. Therefore, it should not affect national law with respect to those aspects of end-user protection, including some aspects of transparency measures which are not covered by those provisions. For example, measures relating to transparency obligations which are not covered by this Directive should be considered to be compatible with the principle of full harmonisation whereas additional requirements regarding transparency issues covered by this Directive, such as publication of information, should be considered to be incompatible. Moreover, Member States should be able to maintain or introduce national provisions on issues not specifically addressed in this Directive, in particular in order to address newly emerging issues.

(258)  Contracts are an important tool for end- users to ensure transparency of information and legal certainty. Most service providers in a competitive environment will conclude contracts with their customers for reasons of commercial desirability. In addition to this Directive, the requirements of existing Union consumer protection law relating to contracts, in particular Council Directive 93/13/EEC(40) and Directive 2011/83/EU of the European Parliament and of the Council(41), apply to consumer transactions relating to electronic communications networks and services. The inclusion of information requirements in this Directive, which might also be required pursuant to Directive 2011/83/EU, should not lead to duplication of the information within pre-contractual and contractual documents. Relevant information provided in respect of this Directive, including any more prescriptive and more detailed informational requirements, should be considered to fulfil the corresponding requirements pursuant to Directive 2011/83/EU.

(259)  Some of those end-user protection provisions which a priori apply only to consumers, namely those on contract information, maximum contract duration and bundles, should benefit not only consumers, but also microenterprises and small enterprises, and not-for-profit organisations as defined in national law. The bargaining position of those categories of enterprises and organisations is comparable to that of consumers and they should therefore benefit from the same level of protection unless they explicitly waive those rights.Obligations on contract information in this Directive, including those of Directive 2011/83/EU that are referred to in this Directive, should apply irrespective of whether any payment is made and of the amount of the payment to be made by the customer. The obligations on contract information, including those contained in Directive 2011/83/EU, should apply automatically to microenterprises, small enterprises and not-for-profit organisations unless they prefer negotiating individualised contract terms with providers of electronic communications services. As opposed to microenterprises, small enterprises and not-for-profit organisations, larger enterprises usually have stronger bargaining power and do, therefore, not depend on the same contractual information requirements as consumers. Other provisions, such as number portability, which are important also for larger enterprises should continue to apply to all end-users. Not‑for‑profit organisations are legal entities that do not earn a profit for their owners or members. Typically, not-for-profit organisations are charities or other types of public interest organisations. Hence, in light of the comparable situation, it is legitimate to treat such organisations in the same way as microenterprises or small enterprises under this Directive, insofar as end-user rights are concerned.

(260)  The specificities of the electronic communications sector require, beyond horizontal contract rules, a limited number of additional end-user protection provisions. End-users should be informed, inter alia, of any quality of service levels offered, conditions for promotions and termination of contracts, applicable tariff plans and tariffs for services subject to particular pricing conditions. That information is relevant for providers of publicly available electronic communications services other than transmission services used for the provision of machine-to-machine services. Without prejudice to the applicable rules on the protection of personal data, a provider of publicly available electronic communications services should not be subject to the obligations on information requirements for contracts where that provider, and affiliated companies or persons, do not receive any remuneration directly or indirectly linked to the provision of electronic communications services, such as where a university gives visitors free access to its Wi-Fi network on campus without receiving any remuneration, whether through payment from the users or through advertising revenues.

(261)  In order to enable the end-user to make a well-informed choice, it is essential that the required relevant information is provided prior to the conclusion of the contract and in clear and understandable language and on a durable medium or, where not feasible and without prejudice to the definition of durable medium set out in Directive 2011/83/EU, in a document, made available by the provider and notified to the user, that is easy to download, open and consult on devices commonly used by consumers. In order to facilitate choice, providers should also present a summary of the essential contract terms. In order to facilitate comparability and reduce compliance cost, the Commission should, after consulting BEREC, adopt a template for such contract summaries. The pre‑contractually provided information as well as the summary template should constitute an integral part of the final contract. The contract summary should be concise and easily readable, ideally no longer than the equivalent of one single-sided A4 page or, where a number of different services are bundled into a single contract, the equivalent of up to three single-sided A4 pages.

(262)  Following the adoption of Regulation (EU) 2015/2120, the provisions in this Directive regarding information on conditions limiting access to, or the use of, services and applications as well as information on traffic shaping became obsolete and should be repealed.

(263)  With respect to terminal equipment, the customer contract should specify any conditions imposed by the provider on the use of the equipment, such as by way of ‘SIM‑locking’ mobile devices, if such conditions are not prohibited under national law, and any charges due on termination of the contract, whether before or on the agreed expiry date, including any cost imposed in order to retain the equipment. Where the end-user chooses to retain terminal equipment bundled at the moment of the contract conclusion, any compensation due should not exceed its pro rata temporis value calculated on the basis of the value at the moment of the contract conclusion, or on the remaining part of the service fee until the end of the contract, whichever amount is smaller. Member States should be able to choose other methods of calculating the compensation rate, where such a rate is equal to or less than that compensation calculated. Any restriction to the usage of terminal equipment on other networks should be lifted, free of charge, by the provider at the latest upon payment of such compensation.

(264)  Without prejudice to the substantive obligation on the provider related to security by virtue of this Directive, the contract should specify the type of action the provider might take in the case of security incidents, threats or vulnerabilities. In addition, the contract should also specify any compensation and refund arrangements available if a provider responds inadequately to a security incident, including if a security incident, notified to the provider, takes place due to known software or hardware vulnerabilities, for which patches have been issued by the manufacturer or developer and the service provider has not applied those patches or taken any other appropriate counter-measure.

(265)  The availability of transparent, up-to-date and comparable information on offers and services is a key element for consumers in competitive markets where several providers offer services. End-users should be able to compare the prices of various services offered on the market easily on the basis of information published in an easily accessible form. In order to allow them to make price and service comparisons easily, competent authorities in coordination, where relevant, with national regulatory authorities should be able to require from providers of internet access services or publicly available interpersonal communication services greater transparency as regards information, including tariffs, quality of service, conditions on terminal equipment supplied, and other relevant statistics. Any such requirements should take due account of the characteristics of those networks or services. They should also ensure that third parties have the right to use, without charge, publicly available information published by such undertakings, with a view to providing comparison tools.

(266)  End-users are often not aware of the cost of their consumption behaviour or have difficulties in estimating their time or data consumption when using electronic communications services. In order to increase transparency and to allow for better control of their communications budget, it is important to provide end-users with facilities that enable them to track their consumption in a timely manner. In addition, Member States should be able to maintain or introduce provisions on consumption limits protecting end-users against “bill-shocks”, including in relation to premium rate services and other services subject to particular pricing conditions. This allows competent authorities to require information about such prices to be provided prior to providing the service and does not prejudice the possibility of Member States to maintain or introduce general obligations for premium rate services to ensure the effective protection of end-users.

(267)  Independent comparison tools, such as websites, are an effective means for end-users to assess the merits of different providers of internet access services and interpersonal communications services, where provided against recurring or consumption-based direct monetary payments, and to obtain impartial information, in particular by comparing prices, tariffs, and quality parameters in one place. Such tools should be operationally independent from service providers and no service provider should be given favourable treatment in search results. Such tools should aim to provide information that is both clear and concise, and complete and comprehensive. They should also aim to include the broadest possible range of offers, in order to give a representative overview and cover a significant part of the market. The information given on such tools should be trustworthy, impartial and transparent. End-users should be informed of the availability of such tools. Member States should ensure that end-users have free access to at least one such tool in their respective territories. Where there is only one tool in a Member State and that tool ceases to operate or ceases to comply with the quality criteria, the Member State should ensure that end‑users have access within a reasonable time to another comparison tool at national level.

(268)  Independent comparison tools ▌ can be operated by private undertakings, or by or on behalf of competent authorities, however they should be operated in accordance with specified quality criteria including the requirement to provide details of their owners, provide accurate and up-to-date information, state the time of the last update, set out clear, objective criteria on which the comparison will be based, and include a broad range of offers ▌ covering a significant part of the market. Member States should be able to determine how often comparison tools are required to review and update the information they provide to end-users, taking into account the frequency with which providers of internet access services and of publicly available ▌interpersonal communications services, generally update their tariff and quality information. ▌

(269)  In order to address public interest issues with respect to the use of internet access services and publicly available number-based interpersonal communications services and to encourage protection of the rights and freedoms of others, Member States should be able to produce and disseminate or have disseminated, with the aid of providers of such services, public-interest information related to the use of such services. It should be possible for such information to include public-interest information regarding the most common infringements and their legal consequences, for instance regarding copyright infringement, other unlawful uses and the dissemination of harmful content, and advice and means of protection against risks to personal security, for example those arising from disclosure of personal information in certain circumstances, as well as risks to privacy and personal data, and the availability of easy‑to‑use and configurable software or software options allowing protection for children or vulnerable persons. The information could be coordinated by way of the cooperation procedure established in this Directive. Such public-interest information should be updated where necessary and should be presented in easily comprehensible formats, as determined by each Member State, and on national public authority websites. Member States should be able to oblige providers of internet access services and publicly available number-based interpersonal communications services to disseminate this standardised information to all of their customers in a manner considered to be appropriate by the ▌ national public authorities. Dissemination of such information should, however, not impose an excessive burden on providers. If it does so, Member States should require such dissemination by the means used by providers in communications with end-users made in the ordinary course of business.

(270)  In the absence of relevant rules of Union law, content, applications and services are considered to be lawful or harmful in accordance with national substantive and procedural law. It is a task for the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful. This Directive ▌ and Directive 2002/58/EC are without prejudice to Directive 2000/31/EC, which, inter alia, contains a ‘mere conduit’ rule for intermediary service providers, as defined therein.

(271)  National regulatory authorities in coordination with other competent authorities, or where relevant, other competent authorities in co-ordination with national regulatory authorities should be empowered to monitor the quality of services and to collect systematically information on the quality of services offered by providers of internet access services and of publicly available interpersonal communications services, to the extent that the latter are able to offer minimum levels of service quality either through control of at least some elements of the network or by virtue of a service level agreement to that end, including the quality related to the provision of services to ▌end-users with disabilities. That information should be collected on the basis of criteria which allow comparability between service providers and between Member States. Providers of such electronic communications services, operating in a competitive environment, are likely to make adequate and up-to-date information on their services publicly available for reasons of commercial advantage. National regulatory authorities in coordination with other competent authorities, or where relevant, other competent authorities in co-ordination with national regulatory authorities should nonetheless be able to require publication of such information where it is demonstrated that such information is not effectively available to the public. Where the quality of services of publicly available interpersonal communication services depends on any external factors, such as control of signal transmission or network connectivity, national regulatory authorities in coordination with other competent authorities should be able to require providers of such services to inform their consumers accordingly.

(272)  National regulatory authorities in coordination with other competent authorities should also set out the measurement methods to be applied by the service providers in order to improve the comparability of the data provided. In order to facilitate comparability across the Union and to reduce compliance cost, BEREC should adopt guidelines on relevant quality of service parameters which national regulatory authorities in coordination with other competent authorities should take into utmost account.

(273)  In order to take full advantage of the competitive environment, consumers should be able to make informed choices and to change providers when it is in their best interest to do so. It is essential to ensure that they are able to do so without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures and charges. That does not preclude providers from setting reasonable minimum contractual periods of up to 24 months in consumer contracts. However, Member States should have the possibility to maintain or introduce provisions for a shorter maximum duration and to permit consumers to change tariff plans or terminate the contract within the contract period without incurring additional costs in light of national conditions, such as levels of competition and stability of network investments. Independently from the electronic communications service contract, consumers might prefer and benefit from a longer reimbursement period for physical connections. Such consumer commitments can be an important factor in facilitating deployment of very high capacity networks up to or very close to end-user premises, including through demand aggregation schemes which enable network investors to reduce initial take-up risks. However, the rights of consumers to switch between providers of electronic communications services, as established in this Directive, should not be restricted by such reimbursement periods in contracts on physical connections and such contracts should not cover terminal or internet access equipment, such as handsets, routers or modems. Member States should ensure the equal treatment of entities, including operators, financing the deployment of a very high capacity physical connection to the premises of an end-user, including where such financing is by way of an instalment contract.

(274)  Automatic prolongation of contracts for electronic communications services is also possible. In those cases, end-users should be able to terminate their contract without incurring any costs ▌after the expiry of the ▌ contract term ▌.

(275)  Any changes to the contractual conditions proposed by providers of publicly available electronic communications services other than number-independent interpersonal communications services, which are not to the benefit of the end-user ▌, for example in relation to charges, tariffs, data volume limitations, data speeds, coverage, or the processing of personal data, should give rise to the right of the end‑user to terminate the contract without incurring any costs, even if they are combined with some beneficial changes. Any change to the contractual conditions by the provider should therefore entitle the end-user to terminate the contract unless each change is in itself beneficial to the end-user, or the changes are of a purely administrative nature, such as a change in the provider’s address, and have no negative effect on the end-user, or the changes are strictly imposed by legislative or regulatory changes, such as new contract information requirements imposed by Union or national law. Whether a change is exclusively to the benefit of the end-user should be assessed on the basis of objective criteria. The end-user's right to terminate the contract should be excluded only if the provider is able to demonstrate that all contract changes are exclusively to the benefit of the end-user or are of a purely administrative nature without any negative effect on the end-user.

(276)  End-users should be notified of any changes to the contractual conditions by means of a durable medium. End-users other than consumers, microenterprises or small enterprises, or not‑for-profit organisations should not benefit from the termination rights in the case of contract modification, insofar as transmission services used for machine-to-machine services are concerned. Member States should be able to provide for specific end-user protections regarding contract termination where the end-users change their place of residence. The provisions on contract termination should be without prejudice to other provisions of Union or national law concerning the grounds on which contracts can be terminated or on which contractual terms and conditions can be changed by the service provider or by the end-user.

(277)  The possibility of switching between providers is key for effective competition in a competitive environment. The availability of transparent, accurate and timely information on switching should increase the end-users' confidence in switching and make them more willing to engage actively in the competitive process. Service providers should ensure continuity of service so that end-users are able to switch providers without being hindered by the risk of a loss of service and, where technically possible, allow for switching on the date requested by end-users.

(278)  Number portability is a key facilitator of consumer choice and effective competition in competitive electronic communications markets. End-users who so request should be able to retain their numbers independently of the provider of service and for a limited time between the switching of providers of service. The provision of this facility between connections to the public telephone network at fixed and non-fixed locations is not covered by this Directive. However, Member States should be able to apply provisions for porting numbers between networks providing services at a fixed location and mobile networks.

(279)  The impact of number portability is considerably strengthened when there is transparent tariff information, both for end-users who port their numbers and for end‑users who call those who have ported their numbers. National regulatory authorities should, where feasible, facilitate appropriate tariff transparency as part of the implementation of number portability.

(280)  When ensuring that pricing for interconnection related to the provision of number portability is cost-oriented, national regulatory authorities should also be able to take account of prices available in comparable markets.

(281)  Number portability is a key facilitator of consumer choice and effective competition in competitive markets for electronic communications and should be implemented with the minimum delay, so that the number is functionally activated within one working day and the end-user does not experience a loss of service lasting longer than one working day from the agreed date. The right to port the number should be attributed to the end-user who has the relevant (pre- or post-paid) contract with the provider. In order to facilitate a one-stop-shop enabling a seamless switching experience for end- users, the switching process should be led by the receiving provider of electronic communications to the public. National regulatory or, where relevant, other competent authorities should be able to prescribe the global process of the switching and of the porting of numbers, taking into account national provisions on contracts and technological developments. This should include, where available, a requirement for the porting to be completed though over-the-air provisioning, unless an end-user requests otherwise. Experience in certain Member States has shown that there is a risk of end-users being switched to another provider without having given their consent. While that is a matter that should primarily be addressed by law enforcement authorities, Member States should be able to impose such minimum proportionate measures regarding the switching process, including appropriate penalties, as are necessary to minimise such risks, and to ensure that end-users are protected throughout the switching process without making the process less attractive for them. The right to port numbers should not be restricted by contractual conditions.

(282)  In order to ensure that switching and porting take place within the time-limits provided for in this Directive, Member States should provide for the compensation of end-users by providers in an easy and timely manner where an agreement between a provider and an end-user is not respected. Such measures should be proportionate to the length of the delay in complying with the agreement. End-users should at least be compensated for delays exceeding one working day in activation of service, porting of a number, or loss of service, and where providers miss agreed service or installation appointments. Additional compensation could also be in the form of an automatic reduction of the remuneration in cases where the transferring provider is to continue providing its services until the services of the receiving provider are activated.

(283)  Bundles comprising at least either an internet access service or a publicly available number‑based interpersonal communications service, as well as other services, such as publicly available number-independent interpersonal communications services, ▌linear broadcasting and machine-to-machine services, or terminal equipment, have become increasingly widespread and are an important element of competition. For the purposes of this Directive, a bundle should be considered to exist in situations where the elements of the bundle are provided or sold by the same provider under the same or a closely related or linked contract. While bundles often bring about benefits for consumers, they can make switching more difficult or costly and raise risks of contractual "lock-in". Where different services and terminal equipment within a bundle are subject to divergent rules on contract termination and switching or on contractual commitments regarding the acquisition of terminal equipment, consumers are effectively hampered in their rights under this Directive to switch to competitive offers for the entire bundle or parts of it. Certain essential provisions of this Directive regarding contract summary information,

transparency, contract duration and termination and switching should, therefore, apply to all elements of a bundle, including terminal equipment, other services such as digital content or digital services, and electronic communications services which are not directly covered by the scope of those provisions. All end-user obligations applicable under this Directive to a given electronic communications service when provided or sold as a stand-alone service should also be applicable when it is part of a bundle with at least an internet access service or a publicly available number-based interpersonal communications service. Other contractual issues, such as the remedies applicable in the event of non-conformity with the contract, should be governed by the rules applicable to the respective element of the bundle, for instance by the rules of contracts for the sales of goods or for the supply of digital content. However, a right to terminate any element of a bundle comprising at least an internet access service or a publicly available number‑based interpersonal communications service before the end of the agreed contract term because of a lack of conformity or a failure to supply should give a consumer the right to terminate all elements of the bundle. Also, in order to maintain their capacity to switch easily providers, consumers should not be locked in with a provider by means of a contractual de facto extension of the initial contract period.

(284)  Providers of number-based interpersonal communications services have an obligation to provide access to emergency services through emergency communications. In exceptional circumstances, namely due to a lack of technical feasibility, they might not be able to provide access to emergency services or caller location, or to both. In such cases, they should inform their customers adequately in the contract. Such providers should provide their customers with clear and transparent information in the initial contract and update it in the event of any change in the provision of access to emergency services, for example in invoices. That information should include any limitations on territorial coverage, on the basis of the planned technical operating parameters of the communications service and the available infrastructure. Where the service is not provided over a connection which is managed to give a specified quality of service, the information should also include the level of reliability of the access and of caller location information compared to a service that is provided over such a connection, taking into account current technology and quality standards, as well as any quality of service parameters specified under this Directive.

(285)  End-users should be able to access emergency services through emergency communications free of charge and without having to use any means of payment, from any device which enables number-based interpersonal communications services, including when using roaming services in a Member State. Emergency communications are a means of communication that includes not only voice communications services, but also SMS, messaging, video or other types of communications, for example real time text, total conversation and relay services. Member States, taking into account the capabilities and technical equipment of the PSAPs, should be able to determine which number-based interpersonal communications services are appropriate for emergency services, including the possibility to limit those options to voice communications services and their equivalent for end‑users with disabilities, or to add additional options as agreed with national PSAPs. Emergency communication can be triggered on behalf of a person by an in-vehicle emergency call or an eCall as defined in Regulation (EU) 2015/758.

(286)  Member States should ensure that providers of number-based interpersonal communications services provide reliable and accurate access to emergency services, taking into account national specifications and criteria and the capabilities of national PSAPs. Member States should consider the PSAP's ability to handle emergency communications in more than one language. Where the number-based interpersonal communications service is not provided over a connection which is managed to give a specified quality of service, the service provider might not be able to ensure that emergency calls made through their service are routed to the most appropriate PSAP with the same reliability. For such network-independent providers, namely providers which are not integrated with a provider of public electronic communications networks, providing caller location information may not always be technically feasible. Member States should ensure that standards ensuring accurate and reliable routing and connection to the emergency services are implemented as soon as possible in order to allow network-independent providers of number-based interpersonal communications services to fulfil the obligations related to access to emergency services and caller location information provision at a level comparable to that required of other providers of such communications services. Where such standards and the related PSAP systems have not been implemented, network‑independent number-based interpersonal communications services should not be required to provide access to emergency services except in a manner that is technically feasible or economically viable. This may, for example, include the designation by a Member State of a single, central PSAP for receiving emergency communications. Nonetheless, such providers should inform end-users when access to the single European emergency number "112" or to caller location information is not supported.

(287)  In order to improve the reporting and performance measurement by Member States with respect to the answering and handling of emergency calls, the Commission should, every two years, report to the European Parliament and to the Council on the effectiveness of the implementation of the single European emergency number "112".

(288)  Member States should take specific measures to ensure that emergency services, including the single European emergency number ‘112’, are equally accessible to ▌ end-users with disabilities, in particular deaf, hearing-impaired, speech-impaired and deaf-blind end-users and in accordance with Union law harmonising accessibility requirements for products and services. This could involve the provision of special terminal devices for end‑users with disabilities when other ways of communication are not suitable for them.

(289)  It is important to increase awareness of the single European emergency number ‘112’ in order to improve the level of protection and security of citizens travelling in the Union. To that end, citizens should be made fully aware, when travelling in any Member State, in particular through information provided in international bus terminals, train stations, ports or airports and in telephone directories, end-user and billing material, that the single European emergency number ‘112’ can be used as a single emergency number throughout the Union. This is primarily the responsibility of the Member States, but the Commission should continue both to support and to supplement initiatives of the Member States to heighten awareness of the single European emergency number ‘112’ and periodically to evaluate the public’s awareness of it.

(290)  Caller location information, which applies to all emergency communications, improves the level of protection and the security of end-users and assists the emergency services in the discharge of their duties, provided that the transfer of emergency communication and associated data to the emergency services concerned is guaranteed by the national system of PSAPs. The reception and use of caller location information, which includes both network-based location information and where available, enhanced handset caller location information, should comply with relevant Union law on the processing of personal data and security measures. Undertakings that provide network‑based location should make caller location information available to emergency services as soon as the call reaches that service, independently of the technology used. However, handset-based location technologies have proven to be significantly more accurate and cost effective due to the availability of data provided by the European Geostationary Navigation Overlay Service and Galileo Satellite system and other Global Navigation Satellite Systems and Wi-Fi data. Therefore, handset‑derived caller location information should complement network-based location information even if the handset-derived location becomes available only after the emergency communication is set up. Member States should ensure that, where available, the handset-derived caller location information is made available to the most appropriate PSAP. This might not be always possible, for example when the location is not available on the handset or through the interpersonal communications service used, or when it is not technically feasible to obtain that information. Furthermore, Member States should ensure that the PSAPs are able to retrieve and manage the caller location information available, where feasible. The establishment and transmission of caller location information should be free of charge for both the end-user and the authority handling the emergency communication irrespective of the means of establishment, for example through the handset or the network, or the means of transmission, for example through voice channel, SMS or IP-based.

(291)  In order to respond to technological developments concerning accurate caller location information, equivalent access for ▌end-users with disabilities and call routing to the most appropriate PSAP, the Commission should be empowered to adopt by means of a delegated act measures necessary to ensure the compatibility, interoperability, quality, reliability and continuity of emergency communications in the Union, such as functional provisions determining the role of various parties within the communications chain, for example number-based interpersonal communications service providers, network operators and PSAPs, as well as technical provisions determining the technical means to fulfil the functional provisions. Such measures should be without prejudice to the organisation of emergency services of Member States.

(292)  A citizen in one Member State who needs to contact the emergency services in another Member State cannot do so because the emergency services may not have any contact information for emergency services in other Member States. A Union-wide, secure database of numbers for a lead emergency service in each country should therefore be introduced. To that end, BEREC should maintain a secure database of E.164 numbers of Member State emergency service numbers, if such a database is not maintained by another organisation, in order to ensure that the emergency services in one Member State can be contacted by the emergency services in another.

(293)  Diverging national law has developed in relation to the transmission by electronic communications services of public warnings regarding imminent or developing major emergencies and disasters. In order to approximate law in that area, this Directive should therefore provide that, when public warning systems are in place, public warnings should be transmitted by providers of mobile number-based interpersonal communication services to all end-users concerned. The end-users concerned should be considered to be those who are located in the geographic areas potentially being affected by imminent or developing major emergencies and disasters during the warning period, as determined by the competent authorities.

(294)  Where the effective reach of all end-users concerned, independently of their place or Member State of residence, is ensured and fulfils the highest level of data security, Member States should be able to provide for the transmission of public warnings by publicly available electronic communications services other than mobile number-based interpersonal communications services and other than transmission services used for broadcasting or by mobile application transmitted via internet access services. In order to inform end‑users entering a Member State of the existence of such a public warning system, that Member State should ensure that those end-users receive, automatically by means of SMS, without undue delay and free of charge, easily understandable information on how to receive public warnings, including by means of mobile terminal equipment not enabled for internet access services. Public warnings other than those relying on mobile number-based interpersonal communications services should be transmitted to end-users in an easily receivable manner. Where a public warning system relies on an application, it should not require end-users to log in or register with the authorities or the application provider. End-users' location data should be used in accordance with Directive 2002/58/EC. The transmission of public warnings should be free of charge for end-users. In its review of the implementation of this Directive, the Commission could also assess whether it is possible in accordance with Union law, and feasible to set up a single Union‑wide public warning system in order to alert the public in the event of an imminent or developing disaster or major state of emergency across different Member States.

(295)  Member States should be able to determine if proposals for alternative systems, other than through mobile number-based interpersonal communication services, are truly equivalent to such services, taking utmost account of the corresponding BEREC guidelines. Such guidelines should be developed after consulting national authorities in charge of PSAPs in order to ensure that emergency experts have a role in their development and that there is a common understanding between different Member State authorities as to what is needed to ensure full implementation of such public warning systems within the Member States while ensuring that the citizens of the Union are effectively protected while travelling in another Member State.

(296)  In line with the objectives of the Charter and the obligations enshrined in the United Nations Convention on the Rights of Persons with Disabilities, the regulatory framework should ensure that all end-users, including ▌ end-users with disabilities, older people, and users with special social needs, have easy and equivalent access to affordable high quality services regardless of their place of residence within the Union. Declaration 22 annexed to the final Act of Amsterdam provides that the institutions of the Union are to take account of the needs of persons with disabilities in drawing up measures under Article 114 TFEU.

(297)  In order to ensure that ▌end-users with disabilities benefit from competition and the choice of service providers enjoyed by the majority of end-users, competent authorities should specify, where appropriate and in light of national conditions, and after consulting end-users with disabilities, consumer protection requirements for end-users with disabilities to be met by providers of publicly available electronic communications services. Such requirements can include, in particular, that providers ensure that ▌end-users with disabilities take advantage of their services on equivalent terms and conditions, including prices, tariffs and quality, as those offered to their other end-users, irrespective of any additional costs incurred by those providers. Other requirements can relate to wholesale arrangements between providers. In order to avoid creating an excessive burden on service providers competent authorities should verify, whether the objectives of equivalent access and choice can be achieved without such measures.

(298)  In addition to Union law harmonising accessibility requirements for products and services, this Directive sets out new enhanced affordability and availability requirements on related terminal equipment and specific equipment and specific services for end-users with disabilities. Therefore, the corresponding obligation in Directive 2002/22/EC that required Member States to encourage the availability of terminal equipment for ▌end-users with disabilities has become obsolete and should be repealed.

(299)  Effective competition has developed in the provision of directory enquiry services and directories pursuant, inter alia, to Article 5 of Commission Directive 2002/77/EC(42). In order to maintain that effective competition, all ▌ providers of number-based interpersonal communications services which attribute numbers from a numbering plan to their end-users should continue to be obliged to make relevant information available in a fair, cost‑oriented and non-discriminatory manner.

(300)  End-users should be informed about their right to determine whether they want to be included in a directory. Providers of number-based interpersonal communications services should respect the end-users' decision when making data available to directory service providers. Article 12 of Directive 2002/58/EC ensures the end-users' right to privacy with regard to the inclusion of their personal information in a public directory.

(301)  Measures at wholesale level ensuring the inclusion of end-user data in databases should comply with the safeguards for the protection of personal data under ▌ Regulation (EU) 2016/679 and Article 12 of Directive 2002/58/EC. The cost-oriented supply of that data to service providers, with the possibility for Member States to establish a centralised mechanism for providing comprehensive aggregated information to directory providers, and the provision of network access under reasonable and transparent conditions, should be put in place in order to ensure that end-users benefit fully from competition, which has largely allowed the enabling of the removal of retail regulation from these services and the provision of offers of directory services under reasonable and transparent conditions.

(302)  Following the abolition of the universal service obligation for directory services and given the existence of a functioning market for such services, the right to access directory enquiry services is no longer necessary. However, the national regulatory authorities should still be able to impose obligations and conditions on undertakings that control access to end-users in order to maintain access and competition in that market ▌.

(303)  End-users should be able to enjoy a guarantee of interoperability in respect of all equipment sold in the Union for the reception of radio in new vehicles of category M and of digital television. Member States should be able to require minimum harmonised standards in respect of such equipment. Such standards could be adapted from time to time in light of technological and market developments.

(304)  Where Member States decide to adopt measures in accordance with Directive (EU) 2015/1535 for the interoperability of consumer radio receivers, they should be capable of receiving and reproducing radio services provided via digital terrestrial radio broadcasting or via IP networks, in order to ensure that interoperability is maintained. This may also improve public safety, by enabling users to rely on a wider set of technologies for accessing and receiving emergency information in the Member States.

(305)  It is desirable to enable consumers to achieve the fullest connectivity possible to digital television sets. Interoperability is an evolving concept in dynamic markets. Standardisation bodies should do their utmost to ensure that appropriate standards evolve along with the technologies concerned. It is likewise important to ensure that connectors are available on digital television sets that are capable of passing all the necessary elements of a digital signal, including the audio and video streams, conditional access information, service information, API information and copy protection information. This Directive should therefore ensure that the functionality associated to or implemented in connectors is not limited by network operators, service providers or equipment manufacturers and continues to evolve in line with technological developments. For display and presentation of connected television services, the realisation of a common standard through a market-driven mechanism is recognised as a consumer benefit. Member States and the Commission should be able to take policy initiatives, consistent with the Treaties, to encourage this development.

(306)  The provisions on interoperability of consumer radio and television equipment do not prevent car radio receivers in new vehicles of category M from being capable of receiving and reproducing radio services provided via analogue terrestrial radio broadcasting and those provisions do not prevent Member States from imposing obligations to ensure that digital radio receivers are capable of receiving and reproducing analogue terrestrial radio broadcasts.

(307)  Without prejudice to Union law, this Directive does not prevent Member States from adopting technical regulations related to digital terrestrial television equipment, to prepare the migration of consumers to new terrestrial broadcasting standards, and avoid the supply of equipment that would not be compliant with the standards to be rolled out.

(308)  Member States should be able to lay down proportionate 'must carry' obligations on undertakings under their jurisdiction, in the interest of legitimate public policy considerations, but such obligations should only be imposed where they are necessary to meet general interest objectives clearly defined by Member States in accordance with Union law and should be proportionate and transparent. It should be possible to apply ‘must carry’ obligations to specified radio and television broadcast channels and complementary services supplied by a specified media service provider. Obligations imposed by Member States should be reasonable, that is they should be proportionate and transparent in light of clearly defined general interest objectives. Member States should provide an objective justification for the ‘must carry’ obligations that they impose in their national law in order to ensure that such obligations are transparent, proportionate and clearly defined. The obligations should be designed in a way which provides sufficient incentives for efficient investment in infrastructure.

(309)  ‘Must carry’ obligations should be subject to periodic review at least every five years in order to keep them up-to-date with technological and market evolution and in order to ensure that they continue to be proportionate to the objectives to be achieved. Such obligations could, where appropriate, entail a provision for proportionate remuneration which should be set out in national law. Where that is the case, national law should also determine the applicable methodology for calculating appropriate remuneration. That methodology should avoid inconsistency with access remedies that may be imposed by national regulatory authorities on providers of transmission services used for broadcasting which have been designated as having significant market power. However, where a fixed-term contract signed before … [the date of entry into force of this Directive] provides for a different methodology, it should be possible to continue to apply that methodology for the duration of the contract. In the absence of a national provision on remuneration, providers of radio or television broadcast channels and providers of electronic communications networks used for the transmission of those radio or television broadcast channels should be able to agree contractually on a proportionate remuneration.

(310)  Electronic communications networks and services used for the distribution of radio or television broadcasts to the public include cable, IPTV, satellite and terrestrial broadcasting networks. They might also include other networks to the extent that a significant number of end-users use such networks as their principal means to receive radio and television broadcasts. 'Must carry' obligations related to analogue television broadcast transmissions should be considered only where the lack of such an obligation would cause significant disruption for a significant number of end-users or where there are no other means of transmission for specified television broadcast channels. ‘Must carry’ obligations can include the transmission of services specifically designed to enable equivalent access by end-users with disabilities. Accordingly complementary services include services designed to improve accessibility for end-users with disabilities, such as videotext, subtitling for end-users who are the deaf or hard of hearing, audio description, spoken subtitles and sign language interpretation, and could include access to the related raw-data where necessary. In light of the growing provision and reception of connected television services and the continued importance of EPGs for end-user choice the transmission of programme-related data necessary to support connected television and EPG functionalities can be included in ‘must carry’ obligations. It should be possible for such programme-related data to include information about the programme content and how to access it, but not the programme content itself.

(311)  Calling line identification facilities are normally available on modern telephone exchanges and can therefore increasingly be provided at little or no expense. Member States are not required to impose obligations to provide these facilities when they are already available. Directive 2002/58/EC safeguards the privacy of users with regard to itemised billing, by giving them the means to protect their right to privacy when calling line identification is implemented. The development of those services on a pan-European basis would benefit consumers and is encouraged by this Directive. A common practice by providers of internet access services is to provide customers with an e-mail address using their commercial name or trade mark. In order to ensure end-users do not suffer lock-in effects related to the risk of losing access to e-mails when changing internet access services, Member States should be able to impose obligations on providers of such services, on request, either to provide access to their e-mails, or to transfer e-mails sent to the relevant e-mail account(s). The facility should be provided free of charge and for a duration that is considered to be appropriate by the national regulatory authority.

(312)  The publication of information by Member States will ensure that market players and potential market entrants understand their rights and obligations, and know where to find the relevant detailed information. Publication in the national gazette helps interested parties in other Member States to find the relevant information.

(313)  In order to ensure that the pan-European electronic communications market is effective and efficient, the Commission should monitor and publish information on charges which contribute to determining prices to end-users.

(314)  In order to determine the correct application of Union law, the Commission needs to know which undertakings have been designated as having significant market power and which obligations have been placed upon market players by national regulatory authorities. In addition to publication of that information at national level, it is therefore necessary for Member States to submit that information to the Commission. Where Member States are required to send information to the Commission, they should be able to do so by electronic means, subject to agreement on appropriate authentication procedures.

(315)  In order to take account of market, social and technological developments, including evolution of technical standards, to manage the risks posed to security of networks and services and to ensure effective access to emergency services through emergency communications, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of ▌ setting a single maximum Union-wide voice termination rate in fixed and mobile markets; ▌ adopting measures related to emergency communications in the Union; and adapting the annexes ▌ to this Directive. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making(43). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(316)  In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission to adopt decisions to resolve cross-border harmful interference between Member States; to identify a harmonised or coordinated approach for the purpose of addressing inconsistent implementation of general regulatory approaches by national regulatory authorities on the regulation of electronic communications markets, as well as numbering, including number ranges, portability of numbers and identifiers, number and address translation systems, and access to emergency services through the single European emergency number '112'; to make the implementation of standards or specifications compulsory, or remove standards or specifications from the compulsory part of the list of standards; to adopt the technical and organisational measures to appropriately manage the risks posed to security of networks and services, as well as the circumstances, format and procedures applicable to notification of security incidents; to specify relevant details relating to tradable individual rights publicly available in a standardised electronic format when the rights of use for radio spectrum are created to specify the physical and technical characteristics of small-area wireless access points; to authorise or prevent a national regulatory authority from imposing on undertakings designated as having significant market power certain obligations for access or interconnection; to ▌ harmonise specific numbers or numbering ranges ▌ to address unmet cross-border or pan-European demand for numbering resources; and to specify the contract summary template to be provided to consumers. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council(44).

(317)  Finally, the Commission should be able to adopt, as necessary, having taken utmost account of the opinion of BEREC, recommendations in relation to the identification of the relevant product and service markets, the notifications under the procedure for consolidating the internal market and the harmonised application of the provisions of the regulatory framework.

(318)  The Commission should review the functioning of this Directive periodically, in particular with a view to determining the need for amendments in light of changing technological or market conditions.

(319)  In carrying out its review of the functioning of this Directive, the Commission should assess whether, in light of developments in the market and with regard to both competition and consumer protection, there is a continued need for the provisions on sector-specific ex ante regulation or whether those provisions should be amended or repealed. As this Directive introduces novel approaches to the regulation of electronic communications sectors, such as the possibility to extend the application of symmetric obligations beyond the first concentration or distribution point and the regulatory treatment of co‑investments, a particular regard should be given in assessing their functioning.

(320)  Future technological and market developments, in particular changes in the use of different electronic communications services and their ability to ensure effective access to emergency services, might jeopardise the achievement of the objectives of this Directive on end-users' rights. BEREC should therefore monitor those developments in Member States and regularly publish an opinion including an assessment of the impact of such developments on the application in practice of the provisions of this Directive relating to end-users. The Commission, taking outmost account of BEREC’s opinion, should publish a report and submit a legislative proposal where it considers it to be necessary to ensure that the objectives of this Directive are achieved.

(321)  Directives 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC and article 5 of Decision 243/2012/EU should be repealed.

(322)  The Commission should monitor the transition from the existing framework to the new framework.

(323)  Since the objective of this Directive, namely achieving a harmonised and simplified framework for the regulation of electronic communications networks, electronic communications services, associated facilities and associated services, of the conditions for the authorisation of networks and services, of radio spectrum use and of numbering resources, of access to and interconnection of electronic communications networks and associated facilities and of end-user protection cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(324)  In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents(45), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(325)  The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to the repealed Directives. The obligation to transpose the provisions which are unchanged arises under the repealed Directives.

(326)  This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law and the dates of application of the Directives set out in Annex XII, Part B,

HAVE ADOPTED THIS DIRECTIVE:

PART I

FRAMEWORK (GENERAL RULES FOR THE ORGANISATION OF THE SECTOR)

TITLE I

SCOPE, AIM AND OBJECTIVES, DEFINITIONS

CHAPTER I

SUBJECT MATTER, AIM AND DEFINITIONS

Article 1

Subject-matter, scope and aims

1.  This Directive establishes a harmonised framework for the regulation of electronic communications networks, electronic communications services, associated facilities and associated services, and certain aspects of terminal equipment. It lays down tasks of national regulatory authorities and, where applicable, of other competent authorities, and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Union.

2.  The aims of this Directive are to:

(a)  implement an internal market in electronic communications networks and services that results in the deployment and take-up of very high capacity networks, sustainable competition, interoperability of electronic communications services, accessibility, security of networks and services and end-user benefits; and

(b)  ensure the provision throughout the Union of good quality, affordable, publicly available services through effective competition and choice, to deal with circumstances in which the needs of end-users, including ▌ those with disabilities in order to access the services on an equal basis with others, are not satisfactorily met by the market and to lay down the necessary end-user rights.

3.  This Directive is without prejudice to:

(a)  obligations imposed by national law in accordance with Union law or by Union law in respect of services provided using electronic communications networks and services;

(b)  measures taken at Union or national level, in accordance with Union law, to pursue general interest objectives, in particular relating to the protection of personal data and privacy, content regulation and audiovisual policy;

(c)  actions taken by Member States for public order and public security purposes and for defence;

(d)  Regulations (EU) No 531/2012 and (EU) 2015/2120, and Directive 2014/53/EU.

4.  The Commission, the Body of European Regulators for Electronic Communications ('BEREC') and the authorities concerned shall ensure compliance of their processing of personal data with Union data protection rules.

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

(1)  ‘electronic communications network’ means transmission systems, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including internet) and mobile networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;

(2)  'very high capacity network' means either an electronic communications network which ▌ consists wholly of optical fibre elements at least up to the distribution point at the serving location, or an electronic communications network which is capable of delivering, under usual peak-time conditions, similar network performance in terms of available downlink 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;

(3)  ‘transnational markets’ means markets identified in accordance with Article 65, which cover the Union or a substantial part thereof located in more than one Member State;

(4)  ‘electronic communications service’ means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services:

(a)  'internet access service' as defined in point (2) of the second paragraph of Article 2 of Regulation (EU) 2015/2120;

(b)  interpersonal communications service; and

(c)  services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting;

(5)  'interpersonal communications service’ means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient(s) and does not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service;

(6)  ‘number-based interpersonal communications service’ means an interpersonal communications service which connects with publicly assigned numbering resources, namely, a number or numbers in national or international ▌ numbering plans, or which enables communication with a number or numbers in national or international ▌ numbering plans;

(7)  'number-independent interpersonal communications service' means an interpersonal communications service which does not connect with publicly assigned numbering resources, namely, a number or numbers in national or international ▌ numbering plans, or which does not enable communication with a number or numbers in national or international ▌ numbering plans;

(8)  ‘public electronic communications network’ means an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services which support the transfer of information between network termination points;

(9)  ‘network termination point’ means the physical point at which an end-user is provided with access to a public electronic communications network, and which, in the case of networks involving switching or routing, is identified by means of a specific network address, which may be linked to an end-user's number or name;

(10)  ‘associated facilities’ means associated services, physical infrastructures and other facilities or elements associated with an electronic communications network or an electronic communications service which enable or support the provision of services via that network or service, or have the potential to do so, and include buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes, and cabinets;

(11)  ‘associated service’ means a service associated with an electronic communications network or an electronic communications service which enables or supports the provision, self-provision or automated-provision of services via that network or service, or has the potential to do so, and includes number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides (EPGs), ▌ as well as other services such as identity, location and presence service;

(12)  ‘conditional access system’ means any technical measure, authentication system and/or arrangement whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or another form of prior individual authorisation;

(13)  ‘user’ means a natural or legal person using or requesting a publicly available electronic communications service;

(14)  ‘end-user’ means a user not providing public electronic communications networks or publicly available electronic communications services;

(15)  ‘consumer’ means any natural person who uses or requests a publicly available electronic communications service for purposes which are outside his or her trade, business, craft or profession;

(16)  ‘provision of an electronic communications network’ means the establishment, operation, control or making available of such a network;

(17)  ‘enhanced digital television equipment’ means set-top boxes intended for connection to television sets or integrated digital television sets, able to receive digital interactive television services;

(18)  ‘application programming interface’ or ‘API’ means the software interface between applications, made available by broadcasters or service providers, and the resources in the enhanced digital television equipment for digital television and radio services;

(19)  ‘radio spectrum allocation’ means the designation of a given radio spectrum band for use by one or more types of radio communications services, where appropriate, under specified conditions;

(20)  ‘harmful interference’ means interference which endangers the functioning of a radio navigation service or of other safety services or which otherwise seriously degrades, obstructs or repeatedly interrupts a radio communications service operating in accordance with the applicable international, Union or national regulations;

(21)  ‘security of networks and services’ means the ability of electronic communications networks and services to resist, at a given level of confidence, any action that compromises the availability, authenticity, integrity or confidentiality of those networks and services, of stored or transmitted or processed data, or of the related services offered by, or accessible via, those electronic communications networks or services;

(22)  ‘general authorisation’ means a legal framework established by a Member State ensuring rights for the provision of electronic communications networks or services and laying down sector-specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with this Directive;

(23)  'small-area wireless access point' means low-power wireless network access equipment of a small size operating within a small range, using licenced radio spectrum or licence-exempt radio spectrum or a combination thereof, which may be used as part of a public electronic communications network, which may be equipped with one or more low visual impact antennae, and which allows wireless access by users to electronic communications networks regardless of the underlying network topology, be it mobile or fixed;

(24)  'radio local area network' or 'RLAN' means low-power wireless access system, operating within a small range, with a low risk of interference with other such systems deployed in close proximity by other users, using, on a non-exclusive basis, harmonised radio spectrum;

(25)  'harmonised radio spectrum' means radio spectrum for which harmonised conditions relating to its availability and efficient use have been established by way of technical implementing measures in accordance with Article 4 of Decision No 676/2002/EC;

(26)  'shared use of radio spectrum' means access by two or more users to use the same radio spectrum bands under a defined sharing arrangement, authorised ▌ on the basis of a general authorisation, individual rights of use for radio spectrum or a combination thereof, including regulatory approaches such as licensed shared access aiming to facilitate the shared use of a radio spectrum band, subject to a binding agreement of all parties involved, in accordance with sharing rules as included in their rights of use for radio spectrum in order to guarantee to all users predictable and reliable sharing arrangements, and without prejudice to the application of competition law;

(27)  ‘access’ means the making available of facilities or services to another undertaking, under defined conditions, either on an exclusive or a non-exclusive basis, for the purpose of providing electronic communications services, including when they are used for the delivery of information society services or broadcast content services; it covers, inter alia: access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop); access to physical infrastructure including buildings, ducts and masts; access to relevant software systems including operational support systems; access to information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; access to number translation or systems offering equivalent functionality; access to fixed and mobile networks, ▌ in particular for roaming; access to conditional access systems for digital television services and access to virtual network services;

(28)  ‘interconnection’ means a specific type of access implemented between public network operators by means of the physical and logical linking of public electronic communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking where such services are provided by the parties involved or other parties who have access to the network;

(29)  ‘operator’ means an undertaking providing or authorised to provide a public electronic communications network or an associated facility;

(30)  ‘local loop’ means the physical path used by electronic communications signals connecting the network termination point to a distribution frame or equivalent facility in the fixed public electronic communications network;

(31)  ‘call’ means a connection established by means of a publicly available interpersonal communications service allowing two-way voice communication;

(32)  ‘voice communications service’ means a publicly available electronic communications service for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international ▌ numbering plan;

(33)  ‘geographic number’ means a number from the national ▌ numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point;

(34)  ‘non-geographic number’ means a number from the national ▌ numbering plan that is not a geographic number, such as mobile, freephone and premium-rate numbers;

(35)  ‘total conversation service’ means a multimedia real time conversation service that provides bidirectional symmetric real time transfer of motion video, real time text and voice between users in two or more locations;

(36)  ‘public safety answering point’ or 'PSAP' means a physical location where an emergency communication is first received under the responsibility of a public authority or a private organisation recognised by the Member State;

(37)  ‘most appropriate PSAP’ means a PSAP established by responsible authorities to cover emergency communications from a certain area or for emergency communications of a certain type;

(38)  ‘emergency communication’ means communication by means of interpersonal communications services between an end-user and the PSAP with the goal to request and receive emergency relief from emergency services;

(39)  ‘emergency service’ means a service, recognised as such by the Member State, that provides immediate and rapid assistance in situations where there is, in particular, a direct risk to life or limb, to individual or public health or safety, to private or public property, or to the environment, in accordance with national law;

(40)  ‘caller location information’ means, in a public mobile network, the data processed, derived from network infrastructure or handsets, indicating the geographic position of an end-user's mobile terminal equipment, and, in a public fixed network, the data about the physical address of the network termination point;

(41)  'terminal equipment' means terminal equipment as defined in point (1) of Article 1 of Commission Directive 2008/63/EC(46);

(42)  'security incident' means an event having an actual adverse effect on the security of electronic communications networks or services.

CHAPTER II

OBJECTIVES

Article 3

General objectives

1.  Member States shall ensure that in carrying out the regulatory tasks specified in this Directive, the national regulatory and other competent authorities take all reasonable measures which are necessary and proportionate for achieving the objectives set out in paragraph 2. Member States, the Commission, the Radio Spectrum Policy Group ('RSPG'), and BEREC shall also contribute to the achievement of those objectives.

National regulatory and other competent authorities shall contribute within their competence to ensuring the implementation of policies aimed at the promotion of freedom of expression and information, cultural and linguistic diversity, as well as media pluralism.

2.  In the context of this Directive, the national regulatory and other competent authorities as well as BEREC, the Commission and the Member States shall pursue each of the following general objectives, which are not listed in order of priority:

(a)  promote connectivity and access to, and take-up of, very high capacity networks, including fixed ▌, mobile and wireless networks, by all citizens and businesses of the Union;

(b)  promote competition in the provision of electronic communications networks and associated facilities, including efficient infrastructure-based competition, and in the provision of electronic communications services and associated services;

(c)  contribute to the development of the internal market by removing remaining obstacles to, and facilitating convergent conditions for, investment in, and the provision of, electronic communications networks, electronic communications services, associated facilities and associated services, throughout the Union, by developing common rules and predictable regulatory approaches, by favouring the effective, efficient and coordinated use of radio spectrum, open innovation, the establishment and development of trans-European networks, the provision, availability and interoperability of pan-European services, and end-to-end connectivity;

(d)  promote the interests of the citizens of the Union, ▌by ensuring connectivity and the widespread availability and take-up of very high capacity networks, including fixed ▌, mobile and wireless networks, and of electronic communications services, by enabling maximum benefits in terms of choice, price and quality on the basis of effective competition, by maintaining the security of networks and services, by ensuring a high and common level of protection for end-users through the necessary sector-specific rules and by addressing the needs, such as ▌ affordable prices, of specific social groups, in particular ▌ end-users with disabilities, elderly end-users and end-users with special social needs, and choice and equivalent access for end-users with disabilities.

3.  Where the Commission establishes benchmarks and reports on the effectiveness of Member States’ measures towards achieving the objectives referred to in paragraph 2, the Commission shall, where necessary, be assisted by Member States, national regulatory authorities, BEREC and the RSPG.

4.  The national regulatory and other competent authorities shall, in pursuit of the policy objectives referred to in paragraph 2 and specified in this paragraph,inter alia:

(a)  promote regulatory predictability by ensuring a consistent regulatory approach over appropriate review periods and through cooperation with each other, ▌with BEREC, with the RSPG and ▌with the Commission;

(b)  ensure that, in similar circumstances, there is no discrimination in the treatment of providers of electronic communications networks and services;

(c)  apply Union law in a technologically neutral fashion, to the extent that this is consistent with the achievement of the objectives set out in paragraph 2;

(d)  promote efficient investment and innovation in new and enhanced infrastructures, including by ensuring that any access obligation takes appropriate account of the risk incurred by the investing undertakings and by permitting various cooperative arrangements between investors and parties seeking access to diversify the risk of investment, while ensuring that competition in the market and the principle of non‑discrimination are preserved;

(e)  take due account of the variety of conditions relating to infrastructure, competition, the circumstances of end-users and, in particular, consumers in the various geographic areas within a Member State, including local infrastructure managed by natural persons on a not-for-profit basis;

(f)  impose ex ante regulatory obligations only to the extent necessary to secure effective and sustainable competition in the interest of end-users and relax or lift such obligations as soon as that condition is fulfilled.

Member States shall ensure that the national regulatory and other competent authorities act impartially, objectively, transparently and in a non-discriminatory and proportionate manner.

Article 4

Strategic planning and coordination of radio spectrum policy

1.  Member States shall cooperate with each other and with the Commission in the strategic planning, coordination and harmonisation of the use of radio spectrum in the Union in accordance with Union policies for the establishment and functioning of the internal market in electronic communications. To that end, they shall take into consideration, inter alia, the economic, safety, health, public interest, ▌ freedom of expression, cultural, scientific, social and technical aspects of Union policies, as well as the various interests of radio spectrum user communities, with the aim of optimising the use of radio spectrum and avoiding harmful interference.

2.  By cooperating with each other and with the Commission, Member States shall promote the coordination of radio spectrum policy approaches in the Union and, where appropriate, harmonised conditions with regard to the availability and efficient use of radio spectrum necessary for the establishment and functioning of the internal market in electronic communications.

3.  Member States shall ▌, through the RSPG, cooperate with each other and with the Commission in accordance with paragraph 1, and upon their request with the European Parliament and with the Council, in support of the strategic planning and coordination of radio spectrum policy approaches in the Union, by:

(a)  developing best practices on radio spectrum related matters, with a view to implementing this Directive;

(b)  facilitating the coordination between Member States with a view to implementing this Directive and other Union law and to contributing to the development of the internal market;

(c)  coordinating their approaches to the assignment and authorisation of use of radio spectrum and publishing reports or opinions on radio spectrum related matters.

BEREC shall participate on issues concerning its competence relating to market regulation and competition related to radio spectrum.

4.  The Commission, taking utmost account of the opinion of the RSPG, ▌ may submit legislative proposals to the European Parliament and to the Council for the purpose of establishing multiannual radio spectrum policy programmes, setting out the policy orientations and objectives for the strategic planning and harmonisation of the use of radio spectrum in accordance with this Directive, as well as for the purpose of releasing harmonised radio spectrum for shared use or for use not subject to individual rights.

TITLE II

INSTITUTIONAL SET-UP AND GOVERNANCE

CHAPTER I

NATIONAL REGULATORY AND OTHER COMPETENT AUTHORITIES

Article 5

National regulatory and other competent authorities

1.  Member States shall ensure that each of the tasks laid down in this Directive is undertaken by a competent authority.

Within the scope of this Directive, the national regulatory authorities shall be responsible at least for the following tasks:

(a)  implementing ex ante market regulation, including the imposition of access and interconnection obligations;

(b)  ensuring the resolution of disputes between undertakings ▌;

(c)   carrying out radio spectrum management and decisions or, where those tasks are assigned to other competent authorities, providing advice regarding the market‑shaping and competition ▌ elements of national processes related to the rights of use for radio spectrum for electronic communications networks and services;

(d)   contributing to the protection of end-user rights in the electronic communications sector, in coordination, where relevant, with other competent authorities;

(e)  assessing and monitoring closely market-shaping and competition issues regarding open internet access;

(f)   ▌ assessing the unfair burden and calculating the net cost of the provision of universal service;

(g)  ensuring number portability between providers;

(h)  performing any other task that this Directive reserves to national regulatory authorities.

Member States may assign other tasks provided for in this Directive and other Union law to national regulatory authorities, in particular, those related to market competition or market entry, such as general authorisation, and those related to any role conferred on BEREC. Where those tasks related to market competition or market entry are assigned to other competent authorities, they shall seek to consult the national regulatory authority before taking a decision. For the purposes of contributing to BEREC's tasks, national regulatory authorities shall be entitled to collect necessary data and other information from market participants.

Member States may also assign to national regulatory authorities other tasks on the basis of national law, including national law implementing Union law.

Member States shall, in particular, promote stability of competences of the national regulatory authorities when transposing this Directive with regard to the attribution of tasks resulting from the Union electronic communications regulatory framework as amended in 2009.

2.  National regulatory and other competent authorities of the same Member State or of different Member States shall ▌, where necessary, enter into cooperative arrangements with each other to foster regulatory cooperation.

3.  Member States shall publish the tasks to be undertaken by national regulatory and other competent authorities in an easily accessible form, in particular where those tasks are assigned to more than one body. Member States shall ensure, where appropriate, consultation and cooperation between those authorities, and between those authorities and national authorities entrusted with the implementation of competition law or consumer law, on matters of common interest. Where more than one authority has competence to address such matters, Member States shall ensure that the respective tasks of each authority are published in an easily accessible form.

4.  Member States shall notify to the Commission all national regulatory and other competent authorities that are assigned tasks under this Directive, and their respective responsibilities, as well as any change thereof.

Article 6

Independence of national regulatory and other competent authorities

1.  Member States shall guarantee the independence of national regulatory authorities and of other competent authorities by ensuring that they are legally distinct from, and functionally independent of, any natural or legal person providing electronic communications networks, equipment or services. Member States that retain ownership or control of undertakings providing electronic communications networks or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.

2.  Member States shall ensure that national regulatory and other competent authorities exercise their powers impartially, transparently and in a timely manner. Member States shall ensure that they have adequate technical, financial and human resources to carry out the tasks assigned to them.

Article 7

Appointment and dismissal of members of national regulatory authorities

1.  The head of a national regulatory authority, or, where applicable, the members of the collegiate body fulfilling that function within a national regulatory authority or their alternates, shall be appointed for a term of office of at least three years from among persons of recognised standing and professional experience, on the basis of merit, skills, knowledge and experience and following an open and transparent selection procedure. ▌ Member States shall ensure continuity of decision-making ▌.

2.  Member States shall ensure that the head of a national regulatory authority, or where applicable, members of the collegiate body fulfilling that function within a national regulatory authority or their alternates may be dismissed during their term only if they no longer fulfil the conditions required for the performance of their duties which are laid down in national law before their appointment.

3.  The decision to dismiss the head of the national regulatory authority concerned, or where applicable members of the collegiate body fulfilling that function, shall be made public at the time of dismissal. The dismissed head of the national regulatory authority or, where applicable, members of the collegiate body fulfilling that function shall receive a statement of reasons. In the event that the statement of reasons is not published, it shall be published upon that person's request. Member States shall ensure that this decision is subject to review by a court, on points of fact as well as on points of law.

Article 8

Political independence and accountability of the national regulatory authorities

1.  Without prejudice to Article 10, national regulatory authorities shall act independently and objectively, including in the development of internal procedures and the organisation of staff, shall operate in a transparent and accountable manner in accordance with Union law, and shall not seek or take instructions from any other body in relation to the exercise of the tasks assigned to them under national law implementing Union law. This shall not prevent supervision in accordance with national constitutional law. Only appeal bodies set up in accordance with Article 31 shall have the power to suspend or overturn decisions of the national regulatory authorities.

2.  National regulatory authorities shall report annually, inter alia, on the state of the electronic communications market, on the decisions they issue, on their human and financial resources and how those resources are attributed, as well as on future plans. Their reports shall be made public.

Article 9

Regulatory capacity of national regulatory authorities

1.  Member States shall ensure that national regulatory authorities have separate annual budgets and have autonomy in the implementation of the allocated budget. Those budgets shall be made public.

2.  Without prejudice to the obligation to ensure that national regulatory authorities have adequate financial and human resources to carry out the task assigned to them, financial autonomy shall not prevent supervision or control in accordance with national constitutional law. Any control on the budget of the national regulatory authorities shall be exercised in a transparent manner and made public.

3.  Member States shall also ensure that national regulatory authorities have adequate financial and human resources to enable them to actively participate in and contribute to BEREC.

Article 10

Participation of national regulatory authorities in BEREC

1.  Member States shall ensure that the goals of BEREC of promoting greater regulatory coordination and consistency are actively supported by their respective national regulatory authorities.

2.  Member States shall ensure that national regulatory authorities take utmost account of guidelines, opinions, recommendations, common positions, best practices and methodologies adopted by BEREC when adopting their own decisions for their national markets.

Article 11

Cooperation with national authorities

National regulatory authorities, other competent authorities under this Directive, and national competition authorities shall provide each other with the information necessary for the application of this Directive. In respect of the information exchanged, Union data protection rules shall apply, and the receiving authority shall ensure the same level of confidentiality as that of the originating authority.

CHAPTER II

GENERAL AUTHORISATION

SECTION 1

GENERAL PART

Article 12

General authorisation of electronic communications networks and services

1.  Member States shall ensure the freedom to provide electronic communications networks and services, subject to the conditions set out in this Directive. To this end, Member States shall not prevent an undertaking from providing electronic communications networks or services, except where this is necessary for the reasons set out in Article 52(1) TFEU. Any such limitation to the freedom to provide electronic communications networks and services shall be duly reasoned and shall be notified to the Commission.

2.  The provision of electronic communications networks or services, other than number-independent interpersonal communications services, may, without prejudice to the specific obligations referred to in Article 13(2) or rights of use referred to in Articles 46 and 94, be subject only to a general authorisation.

3.  Where a Member State considers that a notification requirement is justified for undertakings subject to a general authorisation, that Member State may require such undertakings only to submit a notification to the national regulatory or other competent authority. The Member State shall not require such undertakings to obtain an explicit decision or any other administrative act by such authority or by any other authority before exercising the rights derived from the general authorisation.

Upon notification ▌, when required, an undertaking may start the activity, where necessary subject to the provisions on the rights of use under this Directive. ▌

4.  The notification referred to in paragraph 3 shall not entail more than a declaration by a natural or legal person to the national regulatory or other competent authority of the intention to start the provision of electronic communications networks or services and the submission of the minimal information which is required to allow BEREC and that authority to keep a register or list of providers of electronic communications networks and services. That information shall be limited to:

(a)  the name of the provider;

(b)  the provider's legal status, form and registration number, where the provider is registered in a trade or other similar public register in the Union;

(c)  the geographical address of the provider's main establishment in the Union, if any, and, where applicable, any secondary branch in a Member State;

(d)  the provider's website address, where applicable, associated with the provision of electronic communications networks or services;

(e)  a contact person and contact details;

(f)  a short description of the networks or services intended to be provided;

(g)  the Member States concerned; and

(h)  an estimated date for starting the activity.

Member States shall not impose any additional or separate notification requirements.

In order to approximate notification requirements, BEREC shall publish guidelines for the notification template and maintain a Union database of the notifications transmitted to the competent authorities. To that end, the competent authorities shall, by electronic means, forward each notification received to BEREC without undue delay. Notifications made to the competent authorities before … … [two years after the date of entry into force of this Directive] shall be forwarded to BEREC by … [three years after the date of entry into force of this Directive].

Article 13

Conditions attached to the general authorisation and to the rights of use for radio spectrum and for numbering resources, and specific obligations

1.  The general authorisation for the provision of electronic communications networks or services and the rights of use for radio spectrum and rights of use for numbering resources may be subject only to the conditions listed in Annex I. Such conditions shall be non‑discriminatory, proportionate and transparent. In the case of rights of use for radio spectrum, such conditions shall ensure the effective and efficient use thereof and be in accordance with Articles 45 and 51, and, in the case of rights of use for numbering resources, shall be in accordance with Article 94.

2.  Specific obligations which may be imposed on undertakings providing electronic communications networks and services under Article 61(1) and (5) and Articles 62, 68 and 83 or on those designated to provide universal service under this Directive shall be legally separate from the rights and obligations under the general authorisation. In order to achieve transparency, the criteria and procedures for imposing such specific obligations on individual undertakings shall be referred to in the general authorisation.

3.  The general authorisation shall contain only conditions which are specific for that sector and are set out in Parts A, B and C of Annex I and shall not duplicate conditions which are applicable to undertakings by virtue of other national law.

4.  Member States shall not duplicate the conditions of the general authorisation where they grant the right of use for radio spectrum or for numbering resources.

Article 14

Declarations to facilitate the exercise of rights to install facilities and rights of interconnection

Competent authorities shall, within one week of the request of an undertaking, issue standardised declarations confirming, where applicable, that the undertaking has submitted a notification under Article 12(3). Those declarations shall detail the circumstances under which any undertaking providing electronic communications networks or services under the general authorisation has the right to apply for rights to install facilities, negotiate interconnection, and obtain access or interconnection, in order to facilitate the exercise of those rights, for instance at other levels of government or in relation to other undertakings. Where appropriate, such declarations may also be issued as an automatic reply following the notification referred to in Article 12(3).

SECTION 2

GENERAL AUTHORISATION RIGHTS AND OBLIGATIONS

Article 15

Minimum list of rights derived from the general authorisation

1.  Undertakings subject to the general authorisation pursuant to Article 12, shall have the right to:

(a)  provide electronic communications networks and services;

(b)  have their application for the necessary rights to install facilities considered in accordance with Article 43;

(c)  use, subject to Articles 13, 46 and 55, radio spectrum in relation to electronic communications networks and services;

(d)  have their application for the necessary rights of use for numbering resources considered in accordance with Article 94.

2.  Where such undertakings provide electronic communications networks or services to the public, the general authorisation shall give them the right to:

(a)  negotiate interconnection with and, where applicable, obtain access to, or interconnection from, other providers of public electronic communications networks or publicly available electronic communications services covered by a general authorisation in the Union in accordance with this Directive;

(b)  be given an opportunity to be designated to provide different elements of the universal service or to cover different parts of the national territory in accordance with Article 86 or 87.

Article 16

Administrative charges

1.  Any administrative charges imposed on undertakings providing electronic communications networks or services under the general authorisation or to which a right of use has been granted shall:

(a)  cover, in total, only the administrative costs incurred in the management, control and enforcement of the general authorisation system and of the rights of use and of specific obligations as referred to in Article 13(2), which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; and

(b)  be imposed upon the individual undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and associated charges.

Member States may choose not to apply administrative charges to undertakings the turnover of which is ▌ below a certain threshold or the activities of which do not reach a minimum market share or have a very limited territorial scope.

2.  Where national regulatory or other competent authorities impose administrative charges, they shall publish an annual overview of their administrative costs and of the total sum of the charges collected. Where there is a difference between the total sum of the charges and the administrative costs, appropriate adjustments shall be made.

Article 17

Accounting separation and financial reports

1.  Member States shall require undertakings providing public electronic communications networks or publicly available electronic communications services which have special or exclusive rights for the provision of services in other sectors in the same or another Member State to:

(a)  keep separate accounts for the activities associated with the provision of electronic communications networks or services, to the extent that would be required if those activities were carried out by legally independent entities, in order to identify all elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to such activities, including an itemised breakdown of fixed assets and structural costs; or

(b)  have structural separation for the activities associated with the provision of electronic communications networks or services.

Member States may choose not to apply the requirements referred to in the first subparagraph to undertakings which have an annual turnover of less than EUR 50 million in activities associated with electronic communications networks or services in the Union.

2.  Where undertakings providing public electronic communications networks or publicly available electronic communications services are not subject to the requirements of company law and do not satisfy the small and medium-sized enterprise criteria of Union law accounting rules, their financial reports shall be drawn up and submitted to independent audit and published. The audit shall be carried out in accordance with the relevant Union and national rules.

The first subparagraph of this paragraph shall also apply to the separate accounts required under point (a) of the first subparagraph of paragraph 1.

SECTION 3

AMENDMENT AND WITHDRAWAL

Article 18

Amendment of rights and obligations

1.  Member States shall ensure that the rights, conditions and procedures concerning general authorisations and rights of use for radio spectrum or for numbering resources or rights to install facilities may be amended only 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 or for numbering resources.

2.  Except where proposed amendments are minor and have been agreed with the holder of the rights or of the general authorisation, ▌notice shall be given in an appropriate manner of the intention to make such amendments. Interested parties, including users and consumers, shall be allowed a sufficient period of time to express their views on the proposed amendments. That period shall be no less than four weeks except in exceptional circumstances.

Amendments shall be published, together with the reasons therefor.

Article 19

Restriction or withdrawal of rights

1.  Without prejudice to Article 30(5) and (6), Member States shall not restrict or withdraw rights to install facilities or rights of use for radio spectrum or for numbering resources before the expiry of the period for which they were granted, except where justified pursuant to paragraph 2 of this Article, and, where applicable, in accordance with Annex I, and to relevant national provisions regarding compensation for the withdrawal of rights.

2.  In line with the need to ensure the effective and efficient use of radio spectrum, or the implementation of the technical implementing measures adopted under Article 4 of Decision No 676/2002/EC, Member States may allow the restriction or withdrawal of rights of use for radio spectrum, including the rights referred to in Article 49 of this Directive, based on pre-established and clearly defined procedures, in accordance with the principles of proportionality and non-discrimination. In such cases, the holders of the rights may, where appropriate and in accordance with Union law and relevant national provisions, be compensated appropriately.

3.  A modification in the use of radio spectrum as a result of the application of Article 45(4) or (5) shall not alone constitute grounds to justify the withdrawal of a right of use for radio spectrum.

4.  Any intention to restrict or withdraw rights under the general authorisation or individual rights of use for radio spectrum or for numbering resources without the consent of the holder of the rights shall be subject to ▌ consultation of the interested parties in accordance with Article 23.

CHAPTER III

Provision of information, surveys and consultation mechanism

Article 20

Information request to undertakings

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 or opinions adopted in accordance with, this Directive and Regulation (EU) 2018/… of the European Parliament and of the Council(47)(48). In particular, national regulatory authorities and, where necessary for performing their tasks, other competent 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, as well as information on electronic communications networks and associated facilities, which is disaggregated at local level and sufficiently detailed to enable the geographical survey and designation of areas in accordance with Article 22. ▌

Where the information collected in accordance with the first subparagraph is insufficient for national regulatory authorities, other competent authorities and BEREC to carry out their regulatory tasks under Union law, such information may be inquired from other relevant undertakings active in the electronic communications or closely related sectors.

Undertakings designated as having significant market power on wholesale markets may also be required to submit accounting data on the retail markets that are associated with those wholesale markets.

National regulatory and other competent authorities may request information from the single information points established pursuant to Directive 2014/61/EU.

Any request for information shall be proportionate to the performance of the task and shall be reasoned.

Undertakings shall provide the information requested promptly and in accordance with the timescales and level of detail required.

2.  Member States shall ensure that national regulatory and other competent authorities provide the Commission, after a reasoned request, with the information necessary for it to carry out its tasks under the TFEU. The information requested by the Commission shall be proportionate to the performance of those tasks. Where the information provided refers to information previously provided by undertakings at the request of the authority, such undertakings shall be informed thereof. To the extent necessary, and unless the authority that provides the information has made an explicit and reasoned request to the contrary, the Commission shall make the information provided available to another such authority in another Member State.

Subject to the requirements of paragraph 3, Member States shall ensure that the information submitted to one authority can be made available to another such authority in the same or different Member State and to BEREC, after a substantiated request, where necessary to allow either authority, or BEREC, to fulfil its responsibilities under Union law.

3.  Where information gathered pursuant to paragraph 1, including information gathered in the context of a geographical survey, is considered to be confidential by a national regulatory or other competent authority in accordance with Union and national rules on commercial confidentiality ▌, the Commission, BEREC and any other competent authorities concerned shall ensure such confidentiality. Such confidentiality shall not prevent the sharing of information between the competent authority, the Commission, BEREC and any other competent authorities concerned in a timely manner for the purposes of reviewing, monitoring and supervising the application of this Directive.

4.  Member States shall ensure that, acting in accordance with national rules on public access to information and subject to Union and national rules on commercial confidentiality and protection of personal data, national regulatory and other competent authorities publish information that contributes to an open and competitive market.

5.  National regulatory and other competent authorities shall publish the terms of public access to information as referred to in paragraph 4, including the procedures for obtaining such access.

Article 21

Information required with regard to the general authorisation, rights of use and specific obligations

1.  Without prejudice to any information requested pursuant to Article 20 and information and reporting obligations under national law other than the general authorisation, national regulatory and other competent authorities may ▌require undertakings to provide information with regard to the general authorisation, the rights of use or the specific obligations referred to in Article 13(2), which is proportionate and objectively justified in particular for the purposes of:

(a)  verifying, on a systematic or case-by-case basis, compliance with condition 1 of Part A, conditions 2 and 6 of Part D, and conditions 2 and 7 of Part E, of Annex I and of compliance with obligations as referred to in Article 13(2);

(b)  verifying, on a case-by-case basis, compliance with conditions as set out in Annex I where a complaint has been received or where the competent authority has other reasons to believe that a condition is not complied with or in the case of an investigation by the competent authority on its own initiative;

(c)  carrying out procedures for and the assessment of requests for granting rights of use;

(d)  publishing comparative overviews of quality and price of services for the benefit of consumers;

(e)  collating clearly defined statistics, reports or studies;

(f)  carrying out market analyses for the purposes of this Directive, including data on the downstream or retail markets associated with or related to the markets which are the subject of the market analysis;

(g)  safeguarding the efficient use and ensuring the effective management of radio spectrum and of numbering resources;

(h)  evaluating future network or service developments that could have an impact on wholesale services made available to competitors, on territorial coverage, on connectivity available to end-users or on the designation of ▌ areas pursuant to Article 22;

(i)  conducting geographical surveys;

(j)  responding to reasoned requests for information by BEREC.

The information referred to in points (a) and (b), and (d) to (j) of the first subparagraph shall not be required prior to, or as a condition for, market access.

BEREC may develop templates for information requests, where necessary, to facilitate consolidated presentation and analysis of the information obtained.

2.  As regards the rights of use for radio spectrum, the information referred to in paragraph 1 shall refer in particular to the effective and efficient use of radio spectrum as well as to compliance with any coverage and quality of service obligations attached to the rights of use for radio spectrum and their verification.

3.  Where national regulatory or other competent authorities require undertakings to provide information as referred to in paragraph 1, they shall inform them of the specific purpose for which this information is to be used.

4.  National regulatory or other competent authorities shall not duplicate requests of information already made by BEREC pursuant to Article 40 of Regulation (EU) 2018/…(49) where BEREC has made the information received available to those authorities.

Article 22

Geographical surveys of network deployments

1.  National regulatory and/or other competent authorities shall conduct a geographical survey of the reach of electronic communications networks capable of delivering broadband ('broadband networks') by … [five years after ▌the date of entry into force of this Directive] ▌ and shall update it at least every three years thereafter.

The geographical survey shall include a survey of the current geographic reach of broadband networks within their territory, as required for the tasks of national regulatory and/or other competent authorities under this Directive and for the surveys required for the application of State aid rules ▌.

The geographical survey may also include a forecast for a period determined by the relevant authority of the reach of broadband networks, including very high capacity networks, within their territory.

Such forecast shall include all relevant information, including information on planned deployments by any undertaking or public authority, of very high capacity networks and significant upgrades or extensions of ▌ networks to at least 100 Mbps download speeds. For this purpose, national regulatory and/or other competent authorities shall request undertakings and public authorities to provide such information to the extent that it is available and can be provided with reasonable effort.

The national regulatory authority shall decide, with respect to tasks specifically attributed to it under this Directive, the extent to which it is appropriate to rely on all or part of the information gathered in the context of such forecast.

Where a geographical survey is not conducted by the national regulatory authority, it shall be done in cooperation with that authority to the extent it may be relevant for its tasks.

The information collected in the geographical survey shall be at an appropriate level of local detail and shall include sufficient information on the quality of service and parameters thereof and shall be treated in accordance with Article 20(3).

2.  National regulatory and/or other competent authorities may designate ▌ an area with clear territorial boundaries where, on the basis of the information gathered and any forecast prepared pursuant to paragraph 1, it is determined 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 significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds ▌. National regulatory and/or other competent authorities shall publish the designated ▌ areas.

3.  Within a designated ▌ area, the relevant authorities may invite undertakings and public authorities to declare their intention to deploy very high capacity networks over the duration of the relevant forecast period. Where this invitation results in a declaration by an undertaking or public authority of its intention to do so, the relevant authority may require other undertakings and public authorities to declare any intention to deploy very high capacity networks, or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds in this area. The relevant 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 any forecast pursuant to paragraph 1. It shall also inform any undertaking or public authority expressing its interest whether the designated ▌ area is covered or likely to be covered by a next-generation access network offering download speeds below 100 Mbps on the basis of the information gathered pursuant to paragraph 1.

4.  Measures pursuant to paragraph 3 shall be taken in accordance with an efficient, objective, transparent and non-discriminatory procedure, whereby no undertaking is ▌excluded a priori. ▌

5.  Member States shall ensure that national regulatory and other competent authorities, and 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 obligations in their territory take into account the results of the geographical survey and of any designated ▌areas pursuant to paragraphs 1, 2 and 3.

Member States shall ensure that the authorities conducting the geographical survey shall supply those results subject to the receiving authority ensuring the same level of confidentiality and protection of business secrets as the originating authority and inform the parties which provided the information. Those results shall also be made available to BEREC and the Commission upon their request and under the same conditions.

6.  If the relevant information is not available on the market, competent authorities shall make data from the geographical surveys which are not subject to commercial confidentiality directly accessible in accordance with Directive 2003/98/EC to allow for its reuse. They shall also, where such tools are not available on the market, make available information tools enabling end-users ▌ to determine the availability of connectivity in different areas, with a level of detail which is useful to support their choice of operator or service provider.

7.  By … [18 months after the date of entry into force of this Directive] in order to contribute to the consistent application of geographical surveys and forecasts, BEREC shall, after consulting stakeholders and in close cooperation with the Commission and relevant national authorities, issue guidelines to assist national regulatory and/or other competent authorities on the consistent implementation of their obligations under this Article.

Article 23

Consultation and transparency mechanism

1.  Except in cases falling within Article 26 or 27 or Article 32(10), Member States shall ensure that, where national regulatory or other competent authorities intend to take measures in accordance with this Directive, or where they intend to provide for restrictions in accordance with Article 45(4) and (5), which have a significant impact on the relevant market, they give interested parties the opportunity to comment on the draft measure within a reasonable period, having regard to the complexity of the matter and, except in exceptional circumstances, in any event not shorter than 30 days.

2.  For the purposes of Article 35, the competent authorities shall inform the RSPG at the moment of publication about any draft measure which falls within the scope of the comparative or competitive selection procedure pursuant to Article 55(2) and relates to the use of radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable its use for wireless broadband electronic communications networks and services ('wireless broadband networks and services').

3.  National regulatory and other competent authorities shall publish their national consultation procedures.

Member States shall ensure the establishment of a single information point through which all current consultations can be accessed.

4.  The results of the consultation procedure shall be made publicly available, except in the case of confidential information in accordance with Union and national rules on commercial confidentiality.

Article 24

Consultation of interested parties

1.  Member States shall ensure, as appropriate, that competent authorities in coordination, where relevant, with national regulatory authorities take account of the views of end-users, in particular consumers, and end-users with disabilities, manufacturers and undertakings that provide electronic communications networks or services on issues related to all end-user and consumer rights, including equivalent access and choice for end-users with disabilities, concerning publicly available electronic communications services, in particular where they have a significant impact on the market.

Member States shall ensure that competent authorities in coordination, where relevant, with national regulatory authorities establish a consultation mechanism, accessible for end-users with disabilities, ensuring that in their decisions on issues related to end-user and consumer rights concerning publicly available electronic communications services, due consideration is given to consumer interests in electronic communications.

2.  Interested parties may develop, with the guidance of competent authorities in coordination, where relevant, with national regulatory authorities, mechanisms, involving consumers, user groups and service providers, to improve the general quality of service provision by, inter alia, developing and monitoring codes of conduct and operating standards.

3.  Without prejudice to national rules in accordance with Union law promoting cultural and media policy objectives, such as cultural and linguistic diversity and media pluralism, competent authorities in coordination, where relevant, with national regulatory authorities ▌ may promote cooperation between undertakings providing electronic communications networks or services and sectors interested in the promotion of lawful content in electronic communications networks and services. That cooperation may also include coordination of the public-interest information to be provided pursuant to Article 103(4).

Article 25

Out-of-court dispute resolution

1.  Member States shall ensure that the national regulatory authority or another competent authority responsible for, or at least one independent body with proven expertise in, the application of Articles 102 to 107 and Article 115 of this Directive is listed as an alternative dispute resolution entity in accordance with Article 20(2) of Directive 2013/11/EU with a view to resolving disputes between providers and consumers arising under this Directive and relating to the performance of contracts. Member States may extend access to alternative dispute resolution procedures provided by that authority or body to ▌ end-users other than consumers, in particular microenterprises and small enterprises.

2.  Without prejudice to Directive 2013/11/EU, where such disputes involve parties in different Member States, Member States shall coordinate their efforts with a view to bringing about a resolution of the dispute.

Article 26

Dispute resolution between undertakings

1.  In the event of a dispute arising in connection with existing obligations under this Directive between providers of electronic communications networks or services in a Member State, or between such undertakings and other undertakings in the Member State benefiting from obligations of access or interconnection or between providers of electronic communications networks or services in a Member State and providers of associated facilities, the national regulatory authority concerned shall, at the request of either party, and without prejudice to paragraph 2, issue a binding decision to resolve the dispute in the shortest possible time-frame on the basis of clear and efficient procedures, and in any case within four months except in exceptional circumstances. The Member State concerned shall require that all parties cooperate fully with the national regulatory authority.

2.  Member States may make provision for national regulatory authorities to decline to resolve a dispute where other mechanisms, including mediation, exist that would better contribute to resolution of the dispute in a timely manner in accordance with the objectives set out in Article 3. The national regulatory authority shall inform the parties thereof without delay. If, after four months, the dispute is not resolved, and if the dispute has not been brought before the courts by the party seeking redress, the national regulatory authority shall issue, at the request of either party, a binding decision to resolve the dispute in the shortest possible time-frame and in any case within four months.

3.  In resolving a dispute, the national regulatory authority shall take decisions aimed at achieving the objectives set out in Article 3. Any obligations imposed on an undertaking by the national regulatory authority in resolving a dispute shall comply with this Directive.

4.  The decision of the national regulatory authority shall be made available to the public, having regard to the requirements of commercial confidentiality. The national regulatory authority shall provide the parties concerned with a full statement of the reasons on which the decision is based.

5.  The procedure referred to in paragraphs 1, 3 and 4 shall not preclude either party from bringing an action before the courts.

Article 27

Resolution of cross-border disputes

1.  In the event of a dispute arising under this Directive between undertakings in different Member States, paragraphs 2, 3 and 4 of this Article shall apply. Those provisions shall not apply to disputes relating to radio spectrum coordination covered by Article 28.

2.  Any party may refer the dispute to the national regulatory authority or authorities concerned. Where the dispute affects trade between Member States, the competent national regulatory authority or authorities shall notify the dispute to BEREC in order to bring about a consistent resolution of the dispute ▌, in accordance with the objectives set out in Article 3.

3.  Where such a notification has been made, BEREC shall issue an opinion inviting the national regulatory authority or authorities concerned to take specific action in order to resolve the dispute or to refrain from action, in the shortest possible time-frame, and in any case within four months except in exceptional circumstances.

4.  The national regulatory authority or authorities concerned shall await BEREC's opinion before taking any action to resolve the dispute. In exceptional circumstances, where there is an urgent need to act, in order to safeguard competition or protect the interests of end‑users, any of the competent national regulatory authorities may, either at the request of the parties or on its own initiative, adopt interim measures.

5.  Any obligations imposed on an undertaking by the national regulatory authority as part of the resolution of the dispute shall comply with this Directive, take the utmost account of the opinion adopted by BEREC, and be adopted within one month of such opinion.

6.  The procedure referred to in paragraph 2 shall not preclude either party from bringing an action before the courts.

Article 28

Radio Spectrum Coordination among Member States

1.  Member States and their competent authorities shall ensure that the use of radio spectrum is organised on their territory in a way that no other Member State is prevented from allowing on its territory the use of harmonised radio spectrum in accordance with Union law, especially due to cross-border harmful interference between Member States.

Member States shall take all necessary measures to this effect without prejudice to their obligations under international law and relevant international agreements such as the ITU Radio Regulations and the ITU Radio Regional Agreements.

2.  Member States shall cooperate with each other, and, where appropriate, through the RSPG, ▌in the cross-border coordination of the use of radio spectrum in order to:

(a)  ensure compliance with paragraph 1;

(b)  resolve any problem or dispute in relation to cross-border coordination or cross-border harmful interference between Member States, as well as with third countries, which prevent Member States from using the harmonised radio spectrum in their territory.

3.  In order to ensure compliance with paragraph 1, any affected Member State ▌ may request the RSPG to use its good offices to address any problem or dispute in relation to cross-border coordination or cross-border harmful interference. Where appropriate, the RSPG may issue an opinion proposing a coordinated solution regarding such a problem or dispute.

4.  Where the actions referred to in paragraph 2 or 3 have not resolved the problem or dispute, and at the request of any affected Member State ▌, the Commission may, taking utmost account of any opinion of the RSPG recommending a coordinated solution pursuant to paragraph 3, adopt decisions addressed to the Member States concerned by the unresolved harmful interference issue by means of implementing acts to resolve cross-border harmful interference between two or more Member States which prevent them from using the harmonised radio spectrum in their territory.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4).

5.  The Union shall, upon the request of any affected Member State, provide legal, political and technical support to resolve radio spectrum coordination issues with countries neighbouring the Union, including candidate and acceding countries, in such a way that the Member States concerned can observe their obligations under Union law. In the provision of such assistance, the Union shall promote the implementation of Union policies.

TITLE III

IMPLEMENTATION

Article 29

Penalties

1.  Member States shall lay down rules on penalties, including, where necessary, fines and non-criminal predetermined or periodic penalties, applicable to infringements of national provisions adopted pursuant to this Directive or of any ▌binding decision adopted by the Commission, the national regulatory or other competent authority pursuant to this Directive, and shall take all measures necessary to ensure that they are implemented. Within the limits of national ▌ law, national regulatory and other competent authorities shall have the power to impose such penalties. The penalties provided for shall be appropriate, effective, proportionate and dissuasive. ▌

2.  Member States shall provide for penalties in the context of the procedure referred to in Article 22(3) only where an undertaking or public authority knowingly or grossly negligently provides misleading, erroneous or incomplete information.

When determining the amount of fines or periodic penalties imposed on an undertaking or public authority for knowingly or grossly negligently providing misleading, erroneous or incomplete information in the context of the procedure referred to in Article 22(3), regard shall be had, inter alia, to whether the behaviour of the undertaking or public authority has had a negative impact on competition and, in particular, whether, contrary to the information originally provided or any update thereof, the undertaking or public authority either has deployed, extended or upgraded a network, or has not deployed a network and has failed to provide an objective justification for that change of plan.

Article 30

Compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources and compliance with specific obligations

1.  Member States shall ensure that their relevant competent authorities monitor and supervise compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources, with the specific obligations referred to in Article 13(2) and with the obligation to use radio spectrum effectively and efficiently in accordance with Article 4, Article 45(1) and Article 47.

Competent authorities shall have the power to require undertakings subject to the general authorisation or benefitting from rights of use for radio spectrum or for numbering resources to provide all information necessary to verify compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources or with the specific obligations referred to in Article 13(2) or Article 47, in accordance with Article 21.

2.  Where a ▌ competent authority finds that an undertaking does not comply with one or more of the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources, or with the specific obligations referred to in Article 13(2), it shall notify the undertaking of those findings and give the undertaking the opportunity to state its views, within a reasonable time limit.

3.  The competent authority shall have the power to require the cessation of the breach referred to in paragraph 2 either immediately or within a reasonable time limit and shall take appropriate and proportionate measures aimed at ensuring compliance.

In this regard, Member States shall empower the competent authorities to impose:

(a)  where appropriate, dissuasive financial penalties which may include periodic penalties with retroactive effect; and

(b)  orders to cease or delay provision of a service or bundle of services which, if continued, would ▌result in significant harm to competition, pending compliance with access obligations imposed following a market analysis carried out in accordance with Article 67.

The competent authorities shall communicate the measures and the reasons on which they are based to the undertaking concerned without delay and shall stipulate a reasonable period for the undertaking to comply with the measures.

4.  Notwithstanding paragraphs 2 and 3 of this Article, Member States shall empower the competent authority to impose, where appropriate, financial penalties on undertakings for failure to provide information, in accordance with the obligations imposed under point (a) or (b) of the first subparagraph of Article 21(1) and Article 69, within a reasonable period set by the ▌ competent authority.

5.  In the case of a serious breach or repeated breaches of the conditions of the general authorisation or of the rights of use for radio spectrum and for numbering resources, or of the specific obligations referred to in Article 13(2) or Article 47(1) or (2), where measures aimed at ensuring compliance as referred to in paragraph 3 of this Article have failed, Member States shall empower▌ competent authorities to prevent an undertaking from continuing to provide electronic communications networks or services or suspend or withdraw those rights of use. Member States shall empower the competent authority to impose penalties which are effective, proportionate and dissuasive. Such penalties may be applied to cover the period of any breach, even if the breach has subsequently been rectified.

6.  Notwithstanding paragraphs 2, 3 and 5 of this Article, the competent authority may take urgent interim measures to remedy the situation in advance of reaching a final decision, where it has evidence of a breach of the conditions of the general authorisation, of the rights of use for radio spectrum and for numbering resources, or of the specific obligations referred to in Article 13(2) or Article 47(1) or (2) which represents an immediate and serious threat to public safety, public security or public health or risks creating serious economic or operational problems for other providers or users of electronic communications networks or services or other users of the radio spectrum. The competent authority shall give the undertaking concerned a reasonable opportunity to state its views and propose any remedies. Where appropriate, the competent authority may confirm the interim measures, which shall be valid for a maximum of three months, but which may, in circumstances where enforcement procedures have not been completed, be extended for a further period of up to three months.

7.  Undertakings shall have the right to appeal against measures taken under this Article in accordance with the procedure referred to in Article 31.

Article 31

Right of appeal

1.  Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks ▌or services or associated facilities who is affected by a decision of a competent authority has the right of appeal against that decision to an appeal body that is ▌ independent of the parties involved and of any external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. This body, which may be a court, shall have the appropriate expertise to enable it to carry out its functions effectively. Member States shall ensure that the merits of the case are duly taken into account.

Pending the outcome of the appeal, the decision of the competent authority shall stand, unless interim measures are granted in accordance with national law.

2.  Where the appeal body referred to in paragraph 1 of this Article is not judicial in character, it shall always give written reasons for its decision. Furthermore, in such a case, its decision shall be subject to review by a court or a tribunal within the meaning of Article 267 TFEU.

Member States shall ensure that the appeal mechanism is effective.

3.  Member States shall collect information on the general subject matter of appeals, the number of requests for appeal, the duration of the appeal proceedings and the number of decisions to grant interim measures. Member States shall provide such information, as well as the decisions or judgments, to the Commission and to BEREC upon their reasoned request.

TITLE IV

INTERNAL MARKET PROCEDURES

CHAPTER I

Article 32

Consolidating the internal market for electronic communications

1.  In carrying out their tasks under this Directive, national regulatory authorities shall take the utmost account of the objectives set out in Article 3.

2.  National regulatory authorities shall contribute to the development of the internal market by working with each other and with the Commission and BEREC, in a transparent manner, in order to ensure the consistent application, in all Member States, of this Directive. To this end, they shall, in particular, work with the Commission and BEREC to identify the types of instruments and remedies best suited to address particular types of situations in the market.

3.  Except where otherwise provided in recommendations or guidelines adopted pursuant to Article 34 upon completion of the public consultation, if required under Article 23, where a national regulatory authority intends to take a measure which:

(a)  falls within the scope of Article 61, 64, 67, 68 or 83; and

(b)  would affect trade between Member States,

it shall publish the draft measure and communicate it to the Commission, to BEREC, and to the national regulatory authorities in other Member States, at the same time, stating the reasons for the measure, in accordance with Article 20(3) ▌. National regulatory authorities, BEREC and the Commission may comment on that draft measure within one month. The one-month period shall not be extended.

4.  The draft measure referred to in paragraph 3 of this Article shall not be adopted for a further two months, where that measure aims to:

(a)  define a relevant market which is different from those defined in the recommendation referred to in Article 64(1); or

(b)  designate an undertaking as having, either individually or jointly with others, significant market power, under Article 67(3) or (4);

and it would affect trade between Member States, and the Commission has indicated to the national regulatory authority that it considers that the draft measure would create a barrier to the internal market or if it has serious doubts as to its compatibility with Union law and in particular the objectives referred to in Article 3. That two-month period shall not be extended. The Commission shall inform BEREC and national regulatory authorities of its reservations in such a case and simultaneously make them public.

5.  BEREC shall publish an opinion on the Commission's reservations referred to in paragraph 4, indicating whether it considers that the draft measure should be maintained, amended or withdrawn and shall, where appropriate, provide specific proposals to that end.

6.  Within the two-month period referred to in paragraph 4, the Commission may either:

(a)  take a decision requiring the national regulatory authority concerned to withdraw the draft measure; or

(b)  take a decision to lift its reservations referred to in paragraph 4.

The Commission shall take utmost account of the opinion of BEREC before taking a decision.

Decisions referred to in point (a) of the first subparagraph shall be accompanied by a detailed and objective analysis of why the Commission considers that the draft measure is not to be adopted, together with specific proposals for amending it.

7.  Where the Commission has adopted a decision in accordance with point (a) of the first subparagraph of paragraph 6 of this Article requiring the national regulatory authority to withdraw a draft measure, the national regulatory authority shall amend or withdraw the draft measure within six months of the date of the Commission's decision. Where the draft measure is amended, the national regulatory authority shall undertake a public consultation in accordance with Article 23, and shall notify the amended draft measure to the Commission in accordance with paragraph 3 of this Article.

8.  The national regulatory authority concerned shall take the utmost account of comments of other national regulatory authorities, of BEREC and of the Commission and may, except in the cases covered by paragraph 4 and point (a) of paragraph 6, adopt the resulting draft measure and shall, where it does so, communicate it to the Commission.

9.  The national regulatory authority shall communicate to the Commission and to BEREC all adopted final measures which fall under points (a) and (b) of paragraph 3.

10.  In exceptional circumstances, where a national regulatory authority considers that there is an urgent need to act, in order to safeguard competition and protect the interests of users, by way of derogation from the procedure set out in paragraphs 3 and 4, it may immediately adopt proportionate and provisional measures. It shall, without delay, communicate those measures, with full reasons, to the Commission, to the other national regulatory authorities, and to BEREC. A decision of the national regulatory authority to render such measures permanent or extend the period for which they are applicable shall be subject to paragraphs 3 and 4.

11.  A national regulatory authority may withdraw a draft measure at any time.

Article 33

Procedure for the consistent application of remedies

1.  Where an intended measure covered by Article 32(3) aims to impose, amend or withdraw an obligation on an undertaking in application of Article 61 or 67 in conjunction with ▌ Articles 69 to 76 and Article 83, the Commission may, within the one-month period referred to in Article 32(3), notify the national regulatory authority concerned and BEREC of its reasons for considering that the draft measure would create a barrier to the internal market or of its serious doubts as to its compatibility with Union law. In such a case, the draft measure shall not be adopted for a further three months following the Commission's notification.

In the absence of such notification, the national regulatory authority concerned may adopt the draft measure, taking utmost account of any comments made by the Commission, BEREC or any other national regulatory authority.

2.  Within the three-month period referred to in paragraph 1 of this Article, the Commission, BEREC and the national regulatory authority concerned shall cooperate closely to identify the most appropriate and effective measure in light of the objectives laid down in Article 3, whilst taking due account of the views of market participants and the need to ensure the development of consistent regulatory practice.

3.  Within six weeks from the beginning of the three-month period referred to in paragraph 1, BEREC shall ▌ issue an opinion on the Commission's notification referred to in paragraph 1, indicating whether it considers that the draft measure should be amended or withdrawn and, where appropriate, provide specific proposals to that end. That opinion shall provide reasons and be made public.

4.  If in its opinion, BEREC shares the serious doubts of the Commission, it shall cooperate closely with the national regulatory authority concerned to identify the most appropriate and effective measure. Before the end of the three-month period referred to in paragraph 1, the national regulatory authority may either:

(a)  amend or withdraw its draft measure taking utmost account of the Commission's notification referred to in paragraph 1 and of BEREC's opinion; or

(b)  maintain its draft measure.

5.  The Commission may, within one month following the end of the three-month period referred to in paragraph 1 and taking utmost account of the opinion of BEREC, if any:

(a)  issue a recommendation requiring the national regulatory authority concerned to amend or withdraw the draft measure, including specific proposals to that end and providing reasons for its recommendation, in particular where BEREC does not share the Commission’s serious doubts;

(b)  take a decision to lift its reservations indicated in accordance with paragraph 1; or

(c)  for draft measures falling under the second subparagraph of Article 61(3) or under Article 76(2), take a decision requiring the national regulatory authority concerned to withdraw the draft measure, where BEREC shares the serious doubts of the Commission, accompanied by a detailed and objective analysis of why the Commission considers that the draft measure should not be adopted, together with specific proposals for amending the draft measure, subject to the procedure referred to in Article 32(7), which shall apply mutatis mutandis.

6.  Within one month of the Commission issuing the recommendation in accordance with point (a) of paragraph 5 or lifting its reservations in accordance with point (b) of paragraph 5, the national regulatory authority concerned shall communicate to the Commission and to BEREC the adopted final measure.

That period may be extended to allow the national regulatory authority to undertake a public consultation in accordance with Article 23.

7.  Where the national regulatory authority decides not to amend or withdraw the draft measure on the basis of the recommendation issued under point (a) of paragraph 5, it shall provide reasons.

8.  The national regulatory authority may withdraw the proposed draft measure at any stage of the procedure.

Article 34

Implementing provisions

After public consultation and after consulting the national regulatory authorities and taking utmost account of the opinion of BEREC, the Commission may adopt recommendations or guidelines in relation to Article 32 that lay down the form, content and level of detail to be given in the notifications required in accordance with Article 32(3), the circumstances in which notifications would not be required, and the calculation of the time-limits.

CHAPTER II

CONSISTENT RADIO SPECTRUM ASSIGNMENT

Article 35

Peer review process

1.  Where the national regulatory or other competent authority intends to undertake a selection procedure in accordance with Article 55(2) in relation to radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable its use for wireless broadband networks and services, it shall, pursuant to Article 23, inform the RSPG about any draft measure which falls within the scope of the comparative or competitive selection procedure pursuant to Article 55(2) and indicate whether and when it is to request the RSPG to convene a Peer Review Forum.

When requested to do so, the RSPG shall organise a Peer Review Forum in order to discuss and exchange views on the draft measures transmitted and shall facilitate the exchange of experiences and best practices on those draft measures.

The Peer Review Forum shall be composed of the members of the RSPG and organised and chaired by a representative of the RSPG.

2.   At the latest during the public consultation conducted pursuant to Article 23, the RSPG may exceptionally take the initiative to convene a Peer Review Forum in accordance with the rules of procedure for organising it in order to exchange experiences and best practices on a draft measure relating to a selection procedure where it considers that the draft measure would significantly prejudice the ability of the national regulatory or other competent authority to achieve the objectives set in Articles 3, 45, 46 and 47.

3.  The RSPG shall define in advance and make public the objective criteria for the exceptional convening of the Peer Review Forum.

4.  During the Peer Review Forum, the national regulatory authority or other competent authority shall provide an explanation on how the draft measure:

(a)  promotes the development of the internal market, the cross-border provision of services, as well as competition, and maximises the benefits for the consumer, and overall achieves the objectives set in Articles 3, 45, 46 and 47 of this Directive, as well as in Decisions No 676/2002/EC and 243/2012/EU;

(b)  ensures effective and efficient use of radio spectrum; and

(c)  ensures stable and predictable investment conditions for existing and prospective radio spectrum users when deploying networks for the provision of electronic communications services which rely on radio spectrum.

5.  The Peer Review Forum shall be open to voluntary participation by experts from other competent authorities and from BEREC.

6.  The Peer Review Forum shall be convened only once during the overall national preparation and consultation process of a single selection procedure concerning one or several radio spectrum bands, unless the national regulatory or other competent authority requests that it is reconvened.

7.  At the request of the national regulatory or other competent authority that requested the meeting, the RSPG may adopt a report on how the draft measure achieves the objectives provided in paragraph 4, reflecting the views exchanged in the Peer Review Forum.

8.  The RSPG shall publish in February each year a report concerning the draft measures discussed pursuant to paragraphs 1 and 2. The report shall indicate experiences and best practices noted.

9.  Following the Peer Review Forum, at the request of the national regulatory or other competent authority that requested the meeting, the RSPG may adopt an opinion on the draft measure.

Article 36

Harmonised assignment of radio spectrum

Where the use of radio spectrum has been harmonised, access conditions and procedures have been agreed, and undertakings to which the radio spectrum shall be assigned have been selected in accordance with international agreements and Union rules, Member States shall grant the right of use for such radio spectrum in accordance therewith. Provided that all national conditions attached to the right to use the radio spectrum concerned have been satisfied in the case of a common selection procedure, Member States shall not impose any further conditions, additional criteria or procedures which would restrict, alter or delay the correct implementation of the common assignment of such radio spectrum.

Article 37

Joint authorisation process to grant individual rights of use for radio spectrum

Two or several Member States may cooperate with each other and with the RSPG, taking into account any interest expressed by market participants, by jointly establishing the common aspects of an authorisation process and, where appropriate, also jointly conducting the selection process to grant individual rights of use for radio spectrum. ▌

When designing the joint authorisation process, Members States may take into consideration the following criteria:

(a)  the individual national authorisation processes shall be initiated and implemented by the competent authorities in accordance with a jointly agreed schedule;

(b)  it shall provide, where appropriate, for common conditions and procedures for the selection and granting of individual rights of use for radio spectrum among the Member States concerned;

(c)  it shall provide, where appropriate, for common or comparable conditions to be attached to the individual rights of use for radio spectrum among the Member States concerned, inter alia allowing users to be assigned similar radio spectrum blocks;

(d)  it shall be open at any time to other Member States until the joint authorisation process has been conducted.

Where, in spite of the interest expressed by market participants, Member States do not act jointly, they shall inform those market participants of the reasons explaining their decision.

CHAPTER III

HARMONISATION PROCEDURES

Article 38

Harmonisation procedures

1.  Where the Commission finds that divergences in the implementation by the national regulatory or other competent authorities of the regulatory tasks specified in this Directive could create a barrier to the internal market, the Commission may, taking the utmost account of the opinion of BEREC or, where relevant, the RSPG, adopt recommendations or, subject to paragraph 3 of this Article, decisions by means of implementing acts to ensure the harmonised application of this Directive and in order to further the achievement of the objectives set out in Article 3.

2.  Member States shall ensure that national regulatory and other competent authorities take the utmost account of the recommendations referred to in paragraph 1 in carrying out their tasks. Where a national regulatory or other competent authority chooses not to follow a recommendation, it shall inform the Commission, giving the reasons for its position.

3.  The decisions adopted pursuant to paragraph 1 shall include only the identification of a harmonised or coordinated approach for the purpose of addressing the following matters:

(a)  the inconsistent implementation of general regulatory approaches by national regulatory authorities on the regulation of electronic communications markets in the application of Articles 64 and 67, where it creates a barrier to the internal market; such decisions shall not refer to specific notifications issued by the national regulatory authorities pursuant to Article 32; in such a case, the Commission shall propose a draft decision only:

(i)  after at least two years following the adoption of a Commission recommendation dealing with the same matter, and

(ii)  taking utmost account of an opinion from BEREC on the case for adoption of such a decision, which shall be provided by BEREC within three months of the Commission's request;

(b)  numbering, including number ranges, portability of numbers and identifiers, number and address translation systems, and access to emergency services through the single European emergency number '112'.

4.  The implementing acts referred to in paragraph 1 of this Article shall be adopted in accordance with the examination procedure referred to in Article 118(4).

5.  BEREC may, on its own initiative, advise the Commission on whether a measure should be adopted pursuant to paragraph 1.

6.  If the Commission has not adopted a recommendation or a decision within one year from the date of adoption of an opinion by BEREC indicating the existence of divergences in the implementation by the national regulatory or other competent authorities of the regulatory tasks specified in this Directive that could create a barrier to the internal market, it shall inform the European Parliament and the Council of its reasons for not doing so, and make those reasons public.

Where the Commission has adopted a recommendation in accordance with paragraph 1, but the inconsistent implementation creating barriers to the internal market persists for two years thereafter, the Commission shall, subject to paragraph 3, adopt a decision by means of implementing acts in accordance with paragraph 4.

Where the Commission has not adopted a decision within a further year from any recommendation adopted pursuant to the second subparagraph, it shall inform the European Parliament and the Council of its reasons for not doing so, and make those reasons public.

Article 39

Standardisation

1.  The Commission ▌ shall draw up and publish in the Official Journal of the European Union a list of non-compulsory standards or specifications to serve as a basis for encouraging the harmonised provision of electronic communications networks, electronic communications services and associated facilities and associated services. Where necessary, the Commission may, following consultation of the Committee established by Directive (EU) 2015/1535, request that standards be drawn up by the European standardisation organisations (European Committee for Standardisation (CEN), European Committee for Electrotechnical Standardisation (Cenelec), and European Telecommunications Standards Institute (ETSI)).

2.  Member States shall encourage the use of the standards or specifications referred to in paragraph 1 for the provision of services, technical interfaces or network functions, to the extent strictly necessary to ensure interoperability of services, end-to-end connectivity, facilitation of provider switching and portability of numbers and identifiers, and to improve freedom of choice for users.

In the absence of publication of standards or specifications in accordance with paragraph 1, Member States shall encourage the implementation of standards or specifications adopted by the European standardisation organisations.

In the absence of such standards or specifications, Member States shall encourage the implementation of international standards or recommendations adopted by the International Telecommunication Union (ITU), the European Conference of Postal and Telecommunications Administrations (CEPT), the International Organisation for Standardisation (ISO) and the International Electrotechnical Commission (IEC).

Where international standards exist, Member States shall encourage the European standardisation organisations to use them, or the relevant parts of them, as a basis for the standards they develop, except where such international standards or relevant parts would be ineffective.

Any standards or specifications referred to in paragraph 1 or in this paragraph shall not prevent access as may be required under this Directive, where feasible.

3.  If the standards or specifications referred to in paragraph 1 have not been adequately implemented so that interoperability of services in one or more Member States cannot be ensured, the implementation of such standards or specifications may be made compulsory under the procedure laid down in paragraph 4, to the extent strictly necessary to ensure such interoperability and to improve freedom of choice for users.

4.  Where the Commission intends to make the implementation of certain standards or specifications compulsory, it shall publish a notice in the Official Journal of the European Union and invite public comment by all parties concerned. The Commission shall, by means of implementing acts, make implementation of the relevant standards compulsory by making reference to them as compulsory standards in the list of standards or specifications published in the Official Journal of the European Union.

5.  Where the Commission considers that the standards or specifications referred to in paragraph 1 no longer contribute to the provision of harmonised electronic communications services, no longer meet consumers' needs or hamper technological development, it shall remove them from the list of standards or specifications referred to in paragraph 1.

6.  Where the Commission considers that the standards or specifications referred to in paragraph 4 no longer contribute to the provision of harmonised electronic communications services, no longer meet consumers' needs, or hamper technological development, it shall, by means of implementing acts, remove those standards or specifications from the list of standards or specifications referred to in paragraph 1.

7.  The implementing acts referred to in paragraphs 4 and 6 of this Article shall be adopted in accordance with the examination procedure referred to in Article 118(4).

8.  This Article does not apply in respect of any of the essential requirements, interface specifications or harmonised standards to which Directive 2014/53/EU applies.

TITLE V

SECURITY ▌

Article 40

Security of networks and services

1.  Member States shall ensure that providers of public electronic communications networks or of publicly available electronic communications services take appropriate and proportionate technical and organisational measures to appropriately manage the risks posed to the security of networks and services. Having regard to the state of the art, those measures shall ensure a level of security appropriate to the risk presented. In particular, measures, including encryption where appropriate, shall be taken to prevent and minimise the impact of security incidents on users and on other networks and services.

The European Union Agency for Network and Information Security ('ENISA') shall facilitate, in accordance with Regulation (EU) No 526/2013 of the European Parliament and of the Council(50), the coordination of Member States to avoid diverging national requirements that may create security risks and barriers to the internal market.

2.  Member States shall ensure that providers of public electronic communications networks or of publicly available electronic communications services notify without undue delay the competent authority of a ▌ security incident that has had a significant impact on the operation of networks or services.

In order to determine the significance of the impact of a security incident, where available the following parameters shall, in particular, be taken into account:

(a)  the number of users affected by the security incident;

(b)  the duration of the security incident;

(c)  the geographical spread of the area affected by the security incident;

(d)  the extent to which the functioning of the network or service is affected;

(e)  the extent of impact on economic and societal activities.

Where appropriate, the competent authority concerned shall inform the competent authorities in other Member States and ENISA. The competent authority concerned may inform the public or require the providers to do so, where it determines that disclosure of the security incident is in the public interest.

Once a year, the competent authority concerned shall submit a summary report to the Commission and to ENISA on the notifications received and the action taken in accordance with this paragraph.

3.  Member States shall ensure that in the case of a particular and significant threat of a security incident in public electronic communications networks or publicly available electronic communications services, providers of such networks or services shall inform their users potentially affected by such a threat of any possible protective measures or remedies which can be taken by the users. Where appropriate, providers shall also inform their users of the threat itself.

4.  This Article is without prejudice to Regulation (EU) 2016/679 and Directive 2002/58/EC.

5.  The Commission, taking utmost account of ENISA’s opinion, may adopt implementing acts detailing the technical and organisational measures referred to in paragraph 1, as well as the circumstances, format and procedures applicable to notification requirements pursuant to paragraph 2. They shall be based on European and international standards to the greatest extent possible, and shall not prevent Member States from adopting additional requirements in order to pursue the objectives set out in paragraph 1.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4).

Article 41

Implementation and enforcement

1.  Member States shall ensure that, in order to implement Article 40, the competent authorities have the power to issue binding instructions, including those regarding the measures required to remedy a security incident or prevent one from occurring when a significant threat has been identified and time-limits for implementation, to providers of public electronic communications networks or publicly available electronic communications services.

2.  Member States shall ensure that competent authorities have the power to require providers of public electronic communications networks or publicly available electronic communications services to:

(a)  provide information needed to assess the security ▌ of their networks and services, including documented security policies; and

(b)  submit to a security audit carried out by a qualified independent body or a competent authority and make the results thereof available to the competent authority; the cost of the audit shall be paid by the provider.

3.  Member States shall ensure that the competent authorities have all the powers necessary to investigate cases of non-compliance and the effects thereof on the security of the networks and services.

4.  Member States shall ensure that, in order to implement Article 40, the competent authorities have the power to obtain the assistance of a Computer Security Incident Response Team ('CSIRT') designated pursuant to Article 9 of Directive (EU) 2016/1148 in relation to issues falling within the tasks of the CSIRTs pursuant to point 2 of Annex I to that Directive.

5.  The competent authorities shall, where appropriate and in accordance with national law, consult and cooperate with the relevant national law enforcement authorities, the competent authorities within the meaning of Article 8(1) of Directive (EU) 2016/1148 and the national data protection authorities.

PART II

NETWORKS

TITLE I

MARKET ENTRY AND DEPLOYMENT

CHAPTER I

FEES

Article 42

Fees for rights of use for radio spectrum and rights to install facilities

1.   Member States may allow the competent authority to impose fees for the rights of use for radio spectrum or rights to install facilities on, over or under public or private property that are used for the provision of electronic communications networks or services and associated facilities which ensure the optimal use of those resources. Member States shall ensure that such fees are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the general objectives of this Directive.

2.  With respect to rights of use for radio spectrum, Member States shall seek to ensure that applicable fees are set at a level which ensures efficient assignment and use of radio spectrum, including by:

(a)  setting reserve prices as minimum fees for rights of use for radio spectrum by having regard to the value of those rights in their possible alternative uses;

(b)  taking into account costs entailed by conditions attached to those rights; and

(c)  applying, to the extent possible, payment arrangements linked to the actual availability for use of the radio spectrum.

CHAPTER II

ACCESS TO LAND

Article 43

Rights of way

1.  Member States shall ensure that, when a competent authority considers an application for the granting of rights:

–  to install facilities on, over or under public or private property to an undertaking authorised to provide public electronic communications networks, or

–  to install facilities on, over or under public property to an undertaking authorised to provide electronic communications networks other than to the public,

that competent authority:

(a)  acts on the basis of simple, efficient, transparent and publicly available procedures, applied without discrimination and without delay, and in any event makes its decision within six months of the application, except in the case of expropriation, and

(b)  follows the principles of transparency and non-discrimination in attaching conditions to any such rights.

The procedures referred to in points (a) and (b) may differ depending on whether the applicant is providing public electronic communications networks or not.

2.  Member States shall ensure that, where public or local authorities retain ownership or control of undertakings providing public electronic communications networks or publicly available electronic communications services, there is an effective structural separation of the function responsible for granting the rights referred to in paragraph 1 from the activities associated with ownership or control.

Article 44

Co-location and sharing of network elements and associated facilities for providers of electronic communications networks

1.  Where an operator has exercised the right under national law to install facilities on, over or under public or private property, or has taken advantage of a procedure for the expropriation or use of property, competent authorities may impose co‑location and sharing of the network elements and associated facilities installed on that basis, in order to protect the environment, public health, public security or to meet town- and country-planning objectives.

Co-location or sharing of network elements and facilities installed and sharing of property may be imposed only after an appropriate period of public consultation, during which all interested parties shall be given an opportunity to express their views and only in the specific areas where such sharing is considered to be necessary with a view to pursuing the objectives provided in the first subparagraph. Competent authorities may impose the sharing of such facilities or property, including land, buildings, entries to buildings, building wiring, masts, antennae, towers and other supporting constructions, ducts, conduits, manholes, cabinets or measures facilitating the coordination of public works. Where necessary, a Member State may designate a national regulatory or other competent authority for one or more of the following tasks:

(a)  coordinating the process provided for in this Article,

(b)  acting as a single information point,

(c)  setting down rules for apportioning the costs of facility or property sharing and of civil works coordination.

2.  Measures taken by a competent authority in accordance with this Article shall be objective, transparent, non-discriminatory, and proportionate. Where relevant, these measures shall be carried out in coordination with the national regulatory authorities.

CHAPTER III

ACCESS TO RADIO SPECTRUM

Section 1

Authorisations

Article 45

Management of radio spectrum

1.  Taking due account of the fact that radio spectrum is a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio spectrum for electronic communications networks and services in their territory in accordance with Articles 3 and 4. They shall ensure that the allocation of, the issuing of general authorisations in respect of, and the granting of individual rights of use for radio spectrum for electronic communications networks and services by competent authorities are based on objective, transparent, pro-competitive, non-discriminatory and proportionate criteria.

In applying this Article, Member States shall respect relevant international agreements, including the ITU Radio Regulations and other agreements adopted in the framework of the ITU applicable to radio spectrum, such as the agreement reached at the Regional Radiocommunications Conference of 2006, and may take public policy considerations into account.

2.  Member States shall promote the harmonisation of use of radio spectrum by electronic communications networks and services across the Union, consistent with the need to ensure effective and efficient use thereof and in pursuit of benefits for the consumer such as competition, economies of scale and interoperability of networks and services. In so doing, they shall act in accordance with Article 4 of this Directive and with Decision No 676/2002/EC, inter alia, by:

(a)  pursuing wireless broadband coverage of their national territory and population at high quality and speed, as well as coverage of major national and European transport paths, including trans-European transport network as referred to in Regulation (EU) No 1315/2013 of the European Parliament and of the Council(51);

(b)  facilitating the rapid development in the Union of new wireless communications technologies and applications, including, where appropriate, in a cross-sectoral approach;

(c)  ensuring predictability and consistency in the granting, renewal, amendment, restriction and withdrawal of rights of use for radio spectrum in order to promote long-term investments;

(d)  ensuring the prevention of cross-border or national harmful interference in accordance with Articles 28 and 46 respectively, and taking appropriate pre-emptive and remedial measures to that end;

(e)  promoting the shared use of radio spectrum between similar or different uses of radio spectrum ▌ in accordance with competition law;

(f)  applying the most appropriate and least onerous authorisation system possible in accordance with Article 46 in such a way as to maximise flexibility, sharing and efficiency in the use of radio spectrum;

(g)  applying rules for the granting, transfer, renewal, modification and withdrawal of rights of use for radio spectrum that are clearly and transparently laid down ▌ in order to guarantee regulatory certainty, consistency and predictability;

(h)  pursuing consistency and predictability throughout the Union regarding the way the use of radio spectrum is authorised in protecting public health taking into account Recommendation 1999/519/EC.

For the purpose of the first subparagraph, and in the context of the development of technical implementing measures for a radio spectrum band under Decision No 676/2002/EC, the Commission may request the RSPG to issue an opinion recommending the most appropriate authorisation regimes for the use of radio spectrum in that band or parts thereof. Where appropriate and taking utmost account of such opinion, the Commission may adopt a recommendation with a view to promoting a consistent approach in the Union with regard to the authorisation regimes for the use of that band.

Where the Commission is considering the adoption of measures in accordance with Article 39(1), (4), (5) and (6), it may request the opinion of the RSPG with regard to the implications of any such standard or specification for the coordination, harmonisation and availability of radio spectrum. The Commission shall take utmost account of the RSPG's opinion in taking any subsequent steps.

3.  In the case of a national or regional lack of market demand for the use of a band in the harmonised radio spectrum, Member States may allow an alternative use of all or part of that band, including the existing use, in accordance with paragraphs 4 and 5 of this Article, provided that:

(a)  the finding of a lack of market demand for the use of such a band is based on a public consultation in accordance with Article 23, including a forward-looking assessment of market demand;

(b)  such alternative use does not prevent or hinder the availability or the use of such a band in other Member States; and

(c)  the Member State concerned takes due account of the long-term availability or use of such a band in the Union and the economies of scale for equipment resulting from using the harmonised radio spectrum in the Union.

Any decision to allow alternative use ▌on an exceptional basis ▌ shall be subject to a regular review and shall in any event be reviewed promptly upon a duly justified request by a prospective user to the competent authority for use of the band in accordance with the technical implementing measure. The Member State shall inform the Commission and the other Member States of the decision taken, together with the reasons therefor, as well as of the outcome of any review.

4.  Without prejudice to the second subparagraph, Member States shall ensure that all types of technology used for the provision of electronic communications networks or services may be used in the radio spectrum declared available for electronic communications services in their National Frequency Allocation Plan in accordance with Union law.

Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for electronic communications services where this is necessary to:

(a)  avoid harmful interference;

(b)  protect public health against electromagnetic fields, taking utmost account of Recommendation 1999/519/EC;

(c)  ensure technical quality of service;

(d)  ensure maximisation of ▌radio spectrum sharing;

(e)  safeguard efficient use of radio spectrum; or

(f)  ensure the fulfilment of a general interest objective in accordance with paragraph 5.

5.  Without prejudice to the second subparagraph, Member States shall ensure that all types of electronic communications services may be provided in the radio spectrum declared available for electronic communications services in their National Frequency Allocation Plan in accordance with Union law. Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of electronic communications services to be provided, including, where necessary, to fulfil a requirement under the ITU Radio Regulations.

Measures that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as laid down by the Member States in accordance with Union law, including, but not limited to:

(a)  safety of life;

(b)  the promotion of social, regional or territorial cohesion;

(c)  the avoidance of inefficient use of radio spectrum; or

(d)  the promotion of cultural and linguistic diversity and media pluralism, for example ▌ the provision of radio and television broadcasting services.

A measure which prohibits the provision of any other electronic communications service in a specific band may be provided for only where justified by the need to protect the safety of life services. Member States may, on an exceptional basis, also extend such a measure in order to fulfil other general interest objectives as laid down by the Member States in accordance with Union law.

6.  Member States shall regularly review the necessity of the restrictions referred to in paragraphs 4 and 5, and shall make the results of those reviews public.

7.  Restrictions established prior to 25 May 2011 shall comply with paragraphs 4 and 5 by … [the date of entry into force of this Directive].

Article 46

Authorisation of the use of radio spectrum

1.  Member States shall facilitate the use of radio spectrum, including shared use, under general authorisations and limit the granting of individual rights of use for radio spectrum to situations where such rights are necessary to maximise efficient use in light of demand and taking into account the criteria set out in the second subparagraph. In all other cases, they shall set out the conditions for the use of radio spectrum in a general authorisation.

To that end, Member States shall decide on the most appropriate regime for authorising the use of radio spectrum, taking account of:

(a)  the specific characteristics of the radio spectrum concerned;

(b)  the need to protect against harmful interference;

(c)  the development of reliable conditions for radio spectrum sharing, where appropriate;

(d)  the need to ensure technical quality of communications or service;

(e)  objectives of general interest as laid down by Member States in accordance with Union law;

(f)  the need to safeguard efficient use of radio spectrum.

When considering whether to issue general authorisations or to grant individual rights of use for the harmonised radio spectrum, taking into account technical implementing measures adopted in accordance with Article 4 of Decision No 676/2002/EC, Member States shall seek to minimise problems of harmful interference, including in cases of shared use of radio spectrum on the basis of a combination of general authorisation and individual rights of use. ▌

Where appropriate, Member States shall consider the possibility to authorise the use of radio spectrum based on a combination of general authorisation and individual rights of use, taking into account the likely effects of different combinations of general authorisations and individual rights of use and of gradual transfers from one category to the other on competition, innovation and market entry.

Member States shall seek to minimise restrictions on the use of radio spectrum by taking appropriate account of technological solutions for managing harmful interference in order to impose the least onerous authorisation regime possible.

2.  When taking a decision pursuant to paragraph 1 with a view to facilitating the shared use of radio spectrum, the competent authorities shall ensure that the ▌ conditions for the shared use of radio spectrum are clearly set out ▌. Such conditions shall facilitate efficient use of radio spectrum, competition and innovation.

Article 47

Conditions attached to individual rights of use for radio spectrum

1.  Competent authorities shall attach conditions to individual rights of use for radio spectrum in accordance with Article 13(1) in such a way as to ensure optimal and the most effective and efficient use of radio spectrum ▌. They shall, before the assignment or renewal of such rights, clearly establish any such conditions, including the level of use required and the possibility to fulfil that requirement through trading or leasing, in order to ensure the implementation of those conditions in accordance with Article 30. Conditions attached to renewals of right of use for radio spectrum shall not provide undue advantages to existing holders of those rights.

Such conditions shall specify the applicable parameters, including any deadline for exercising the rights of use, the non-fulfilment of which would entitle the competent authority to withdraw the right of use or impose other measures.

Competent authorities shall, in a timely and transparent manner, consult and inform interested parties regarding conditions attached to individual rights of use▌ before their imposition. They shall determine in advance and inform interested parties, in a transparent manner, of the criteria for the assessment of the fulfilment of those conditions.

2.  When attaching conditions to individual rights of use for radio spectrum, competent authorities may, in particular with a view to ensuring effective and efficient use of radio spectrum or promoting coverage, provide for the following possibilities:

(a)  sharing passive or active infrastructure which relies on radio spectrum or radio spectrum,

(b)  commercial roaming access agreements,

(c)  joint roll-out of infrastructures for the provision of networks or services which rely on the use of radio spectrum.

Competent authorities shall not prevent the sharing of radio spectrum in the conditions attached to the rights of use for radio spectrum. Implementation by undertakings of conditions attached pursuant to this paragraph shall remain subject to competition law.

Section 2

Rights of use

Article 48

Granting of individual rights of use for radio spectrum

1.  Where it is necessary to grant individual rights of use for radio spectrum, Member States shall grant such rights, upon request, to any undertaking for the provision of electronic communications networks or services under the general authorisation referred to in Article 12, subject to Article 13, to point (c) of Article 21(1) and to Article 55 and to any other rules ensuring the efficient use of those resources in accordance with this Directive.

2.  Without prejudice to specific criteria and procedures adopted by Member States to grant individual rights of use for radio spectrum to providers of radio or television broadcast content services with a view to pursuing general interest objectives in accordance with Union law, the individual rights of use for radio spectrum shall be granted through open, objective, transparent, non-discriminatory and proportionate procedures, and in accordance with Article 45.

3.  An exception to the requirement of open procedures may apply where the granting of individual rights of use for radio spectrum to the providers of radio or television broadcast content services is necessary to achieve a general interest objective as laid down by Member States in accordance with Union law.

4.  Competent authorities shall consider applications for individual rights of use for radio spectrum in the context of selection procedures pursuant to objective, transparent, proportionate and non-discriminatory eligibility criteria that are set out in advance and reflect the conditions to be attached to such rights. Competent authorities shall be able to request all necessary information from applicants in order to assess, on the basis of those criteria, their ability to comply with those conditions. Where the competent authority concludes that an applicant does not possess the required ability, it shall provide a duly reasoned decision to that effect.

5.  When granting individual rights of use for radio spectrum, Member States shall specify whether those rights can be transferred or leased by the holder of the rights, and under which conditions. Articles 45 and 51 shall apply.

6.  The competent authority shall take, communicate and make public the decisions on the granting of individual rights of use for radio spectrum as soon as possible after the receipt of the complete application and within six weeks in the case of radio spectrum declared available for electronic communications services in their National Frequency Allocation Plan. That time limit shall be without prejudice to Article 55(7) and to any applicable international agreements relating to the use of radio spectrum or of orbital positions.

Article 49

Duration of rights

1.  Where Member States ðauthorise the use of radio spectrum through individual ïrights of use for a limited period, ðthey shall ensure that the right of use is granted for a period that is ïappropriate in light of the objectives pursued in accordance with Article 55(2), taking due account of the need to ðensure competition, as well as, in particular, effective and efficient use of radio spectrum, and to promote innovation and efficient investments, including ïÖby allowingÕ for an appropriate period for investment amortisation.

2.  Where Member States grant individual rights of use for radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable its use for wireless broadband electronic communications services ('wireless broadband services') for a limited period, they shall ensure regulatory predictability for the holders of the rights over a period of at least 20 years regarding conditions for investment in infrastructure which relies on the use of such radio spectrum, taking account of the requirements referred to in paragraph 1 of this Article. This Article is subject, where relevant, to any modification of the conditions attached to those rights of use in accordance with Article 18.

To that end, Member States shall ensure that such rights are valid for a duration of at least 15 years and include, where necessary to comply with the first subparagraph, an adequate extension thereof, under the conditions laid down in this paragraph.

Member States shall make available the general criteria for an extension of the duration of rights of use, in a transparent manner, to all interested parties in advance of granting rights of use, as part of the conditions laid down under Article 55(3) and (6). Such general criteria shall relate to:

(a)  the need to ensure the effective and efficient use of the radio spectrum concerned, the objectives pursued in points (a) and (b) of Article 45(2), or the need to fulfil general interest objectives related to ensuring safety of life, public order, public security or defence; and

(b)  the need to ensure undistorted competition.

At the latest two years before the expiry of the initial duration of an individual right of use, the competent authority shall conduct an objective and forward-looking assessment of the general criteria laid down for extension of the duration of that right of use in light of point (c) of Article 45(2). Provided that the competent authority has not initiated enforcement action for non-compliance with the conditions of the rights of use pursuant to Article 30, it shall grant the extension of the duration of the right of use unless it concludes that such an extension would not comply with the general criteria laid down in point (a) or (b) of the third subparagraph of this paragraph.

On the basis of that assessment, the competent authority shall notify the holder of the right as to whether the extension of the duration of the right of use is to be granted.

If such extension is not to be granted, the competent authority shall apply Article 48 for granting rights of use for that specific radio spectrum band.

Any measure under this paragraph shall be proportionate, non-discriminatory, transparent and reasoned.

By way of derogation from Article 23, interested parties shall have the opportunity to comment on any draft measure pursuant to the third and the fourth subparagraphs of this paragraph for a period of at least three months.

This paragraph is without prejudice to the application of Articles 19 and 30.

When establishing fees for rights of use, Member States shall take account of the mechanism provided for under this paragraph.

3.  Where duly justified, Member States may derogate from paragraph 2 of this Article in the following cases:

(a)  in limited geographical areas, where access to high-speed networks is severely deficient or absent and this is necessary to ensure achievement of the objectives of Article 45(2);

(b)  for specific short-term projects;

(c)  for experimental use;

(d)  for uses of radio spectrum which, in accordance with Article 45(4) and (5), can coexist with wireless broadband services; or

(e)  for alternative use of radio spectrum in accordance with Article 45(3).

4.  Member States may adjust the duration of rights of use laid down in this Article to ensure the simultaneous expiry of the duration of rights in one or several bands.

Article 50

Renewal of individual rights of use for harmonised radio spectrum

1.  National regulatory or other competent authorities shall take a decision on the renewal of individual rights of use for harmonised radio spectrum in a timely manner before the duration of those rights expired, except where, at the time of assignment, the possibility of renewal has been explicitly excluded. For that purpose, those authorities shall assess the need for such renewal ▌ at their own initiative or upon request by the holder of the right, in the latter case not earlier than five years prior to expiry of the duration of the rights concerned. This shall be without prejudice to renewal clauses applicable to existing rights.

2.  In taking a decision pursuant to paragraph 1 of this Article, competent authorities shall consider, inter alia:

(a)  the fulfilment of the objectives set out in Article 3, Article 45(2) and Article 48(2), as well as public policy objectives under Union or national law;

(b)  the implementation of a technical implementing measure adopted in accordance with Article 4 of Decision No 676/2002/EC;

(c)  the review of the appropriate implementation of the conditions attached to the right concerned;

(d)  the need to promote, or avoid any distortion of, competition in line with Article 52;

(e)  the need to render the use of radio spectrum more efficient in light of technological or market evolution;

(f)  the need to avoid severe service disruption.

3.  When considering possible renewal of individual rights of use for harmonised radio spectrum for which the number of rights of use is limited pursuant to paragraph 2 of this Article, competent authorities shall conduct an open, transparent and non-discriminatory procedure ▌, and shall, inter alia:

(a)  give all interested parties ▌ the opportunity to express their views through a public consultation in accordance with Article 23; and

(b)  clearly state the reasons for such possible renewal.

The national regulatory or other competent authority shall take into account any evidence arising from the consultation pursuant to the first subparagraph ▌of this paragraph of market demand from undertakings other than those holding rights of use for radio spectrum in the band concerned when deciding whether to renew the rights of use or to organise a new selection procedure in order to grant the rights of use pursuant to Article 55.

4.  A decision to renew the individual rights of use for harmonised radio spectrum may be accompanied by a review of the fees as well as of the other terms and conditions attached thereto. Where appropriate, national regulatory or other competent authorities may adjust the fees for the rights of use in accordance with Article 42.

Article 51

Transfer or lease of individual rights of use for radio spectrum

1.  Member States shall ensure that undertakings may transfer or lease to other undertakings individual rights of use for radio spectrum ▌.

Member States may ▌ determine that this paragraph does not apply where the undertaking's individual right of use for radio spectrum was initially granted free of charge or assigned for broadcasting.

2.  Member States shall ensure that an undertaking's intention to transfer or lease rights of use for radio spectrum, as well as the effective transfer thereof is notified in accordance with national procedures to the ▌competent authority ▌ and is made public. In the case of harmonised radio spectrum, any such transfer shall comply with such harmonised use.

3.  Member States shall allow the transfer or lease of rights of use for radio spectrum where the original conditions attached to the rights of use are maintained. Without prejudice to the need to ensure the absence of a distortion of competition, in particular in accordance with Article 52, Member States shall:

(a)  submit transfers and leases to the least onerous procedure possible;

(b)  not refuse the lease of rights of use for radio spectrum where the lessor undertakes to remain liable for meeting the original conditions attached to the rights of use;

(c)  not refuse the transfer of rights of use for radio spectrum unless there is a clear risk that the new holder is unable to meet the original conditions for the right of use ▌.

Any administrative charge imposed on undertakings in connection with processing an application for the transfer or lease of rights of use for radio spectrum shall comply with Article 16.

Points (a), (b) and (c) of the first subparagraph are without prejudice to the Member States' competence to enforce compliance with the conditions attached to the rights of use at any time, both with regard to the lessor and the lessee, in accordance with their national law.

Competent authorities shall facilitate the transfer or lease of rights of use for radio spectrum by giving consideration to any request to adapt the conditions attached to the rights in a timely manner and by ensuring that those rights or the relevant radio spectrum may to the best extent be partitioned or disaggregated.

In light of any transfer or lease of rights of use for radio spectrum, competent authorities shall make relevant details relating to tradable individual rights publicly available in a standardised electronic format when the rights are created and keep those details for as long as the rights exist.

▌The Commission may adopt ▌ implementing acts specifying those relevant details.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4).

Article 52

Competition

1.  National regulatory and other competent authorities shall promote effective competition and avoid distortions of competition in the internal market when deciding to grant, amend or renew rights of use for radio spectrum for electronic communications networks and services in accordance with this Directive.

2.  When Member States grant, amend or renew rights of use for radio spectrum, their national regulatory or other competent authorities upon the advice provided by national regulatory authority may take appropriate measures such as:

(a)  limiting the amount of radio spectrum bands for which rights of use are granted to any undertaking, or, in justified circumstances, attaching conditions to such rights of use, such as the provision of wholesale access, national or regional roaming, in certain bands or in certain groups of bands with similar characteristics;

(b)  reserving, if appropriate and justified with regard to a specific situation in the national market, a certain part of a radio spectrum band or group of bands for assignment to new entrants;

(c)  refusing to grant new rights of use for radio spectrum or to allow new radio spectrum uses in certain bands, or attaching conditions to the grant of new rights of use for radio spectrum or to the authorisation of new uses of radio spectrum, in order to avoid the distortion of competition by any assignment, transfer or accumulation of rights of use;

(d)  including conditions prohibiting, or imposing conditions on, transfers of rights of use for radio spectrum, not subject to Union or national merger control, where such transfers are likely to result in significant harm to competition;

(e)  amending the existing rights in accordance with this Directive where this is necessary to remedy ex post a distortion of competition by any transfer or accumulation of rights of use for radio spectrum.

National regulatory and other competent authorities shall, taking into account market conditions and available benchmarks, base their decisions on an objective and forward-looking assessment of the market competitive conditions, of whether such measures are necessary to maintain or achieve effective competition, and of the likely effects of such measures on existing and future investments by market participants in particular for network roll-out. In doing so, they shall take into account the approach to market analysis as set out in Article 67(2).

3.  When applying paragraph 2 of this Article, national regulatory and other competent authorities shall act in accordance with the procedures provided in Articles 18, 19, 23 and 35.

SECTION 3

PROCEDURES

Article 53

Coordinated timing of assignments

1.  Member States shall cooperate in order to coordinate the use of harmonised radio spectrum for electronic communications networks and services in the Union ▌ taking due account of the different national market situations. This may include identifying one, or, where appropriate, several common dates by which the use of specific harmonised radio spectrum is to be authorised.

2.  Where harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable the radio spectrum use for wireless broadband networks and services, Member States shall allow the use of that radio spectrum, as soon as possible and at the latest 30 months after the adoption of that measure, or as soon as possible after the lifting of any decision to allow alternative use on an exceptional basis pursuant to Article 45(3) of this Directive. This is without prejudice to Decision (EU) 2017/899 and to the Commission's right of initiative to propose legislative acts.

3.  A Member State may delay the deadline provided for in paragraph 2 of this Article for a specific band under the following circumstances:

(a)  to the extent justified by a restriction to the use of that band based on the general interest objective provided in point (a) or (d) of Article 45(5);

(b)  in the case of unresolved cross-border coordination issues resulting in harmful interference with third countries, provided the affected Member State has, where appropriate, requested Union assistance pursuant to Article 28(5);

(c)  safeguarding national security and defence; or

(d)  force majeure.

The Member State concerned shall review such a delay at least every two years.

4.  A Member State may delay the deadline provided for in paragraph 2 for a specific band to the extent necessary and up to 30 months in the case of:

(a)  unresolved cross-border coordination issues resulting in harmful interference between Member States, provided that the affected Member State takes all necessary measures in a timely manner pursuant to Article 28(3) and (4);

(b)   the need to ensure, and the complexity of ensuring, the technical migration of existing users of that band.

5.  In the event of a delay under paragraph 3 or 4, the Member State concerned shall inform the other Member States and the Commission in a timely manner, stating the reasons.

Article 54

Coordinated timing of assignments for specific 5G bands

1.  By 31 December 2020, for terrestrial systems capable of providing wireless broadband services, Member States shall, where necessary in order to facilitate the roll-out of 5G, take all appropriate measures to:

(a)  reorganise and allow the use of sufficiently large blocks of the 3.4-3.8 GHz band;

(b)  allow the use of at least 1 GHz of the 24.25-27.5 GHz band, provided that there is clear evidence of market demand and of the absence of significant constraints for migration of existing users or band clearance.

2.  Member States may, however, extend the deadline laid down in paragraph 1 of this Article, where justified, in accordance with Article 45(3) or Article 53(2), (3) or (4).

3.  Measures take