Procedure : 2007/0248(COD)
Document stages in plenary
Document selected : A6-0257/2009

Texts tabled :

A6-0257/2009

Debates :

PV 05/05/2009 - 3
CRE 05/05/2009 - 3

Votes :

PV 06/05/2009 - 6.1
Explanations of votes
Explanations of votes

Texts adopted :

P6_TA(2009)0360

RECOMMENDATION FOR SECOND READING     ***II
PDF 443kDOC 679k
7 April 2009
PE 421.119v03-00 A6-0257/2009

on the Council common position for adopting a directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities for the enforcement of consumer protection laws

(16497/1/2008 – C6-0068/2009 – 2007/0248(COD))

Committee on the Internal Market and Consumer Protection

Rapporteur: Malcolm Harbour

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the Council common position for adopting a directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws

(16497/1/2008 – C6-0068/2009 – 2007/0248(COD))

(Codecision procedure: second reading)

The European Parliament,

–   having regard to the Council common position (16497/1/2008 – C6-0068/2009),

–   having regard to its position at first reading(1) on the Commission proposal to Parliament and the Council (COM(2007)0698),

–   having regard to the amended Commission proposal (COM(2008)0723),

–   having regard to Article 251(2) of the EC Treaty,

–   having regard to Rule 62 of its Rules of Procedure,

–   having regard to the recommendation for second reading of the Committee on the Internal Market and Consumer Protection (A6-0257/2009),

1.  Approves the common position as amended;

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

Amendment  1

Council common position – amending act

Recital 3 a (new)

Council common position

Amendment

 

(3a) A fundamental requirement of universal service is to provide users on request with a connection to the public communications network at a fixed location and at an affordable price. The requirement is for the provision of local, national and international telephone calls, facsimile communications and data services, the provision of which may be restricted by Member States to the end-user's primary location/residence. There should be no constraints on the technical means by which this is provided, allowing for wired or wireless technologies, nor any constraints on which operators provide part or all of universal service obligations.

 

Data connections to the public communications network at a fixed location should be capable of supporting data communications at rates sufficient for access to online services such as those provided via the internet. The speed of internet access experienced by a given user may depend on a number of factors, including the provider or providers of the internet connection as well as the given application for which the connection is being used. The data rate that can be supported by a connection to the public communications network depends on the capabilities of the subscriber's terminal equipment as well as the connection. For this reason it is not appropriate to mandate a specific data or bit rate at Community level. Flexibility is required to allow Member States to take measures where necessary to ensure that a data connection is capable of supporting data rates which are sufficient to permit functional internet access, as defined by the Member States, taking due account of specific circumstances in national markets, for instance the prevailing bandwidth used by the majority of subscribers in that Member State or technological feasibility, provided that these measures seek to minimize market distortion. Where, taking due account of the costs and revenues as well as the intangible benefits resulting from the provision of the services concerned, such measures result in an unfair burden on a designated undertaking, this may be included in any net cost calculation of universal obligations. Alternative financing of underlying network infrastructure, involving Community funding or national measures in accordance with Community law, may also be implemented.

 

This is without prejudice to the need for the Commission to conduct a review of the universal service obligations, which may include the financing of such obligations, in accordance with Article 15 of Directive 2002/22/EC, and if appropriate, to present proposals for reform to meet public interest objectives by, at the latest, January 2010.

(Compromise amendment)

Justification

Amends recital 8 of Directive 2002/22/EC

Amendement  2

Council common position – amending act

Recital 5

Council common position

Amendement

(5) Without prejudice to Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, and in particular the disability requirements laid down in Article 3(3)(f) thereof, certain aspects of terminal equipment, including equipment intended for disabled users, should be brought within the scope of Directive 2002/22/EC (Universal Service Directive) in order to facilitate access to networks and the use of services. Such equipment currently includes receive-only radio and television terminal equipment as well as special terminal devices for hearing-impaired end-users.

(5) Without prejudice to Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, and in particular the disability requirements laid down in Article 3(3)(f) thereof, certain aspects of terminal equipment, including consumer premises equipment intended for disabled users, whether their special needs are due to disability or related to ageing, should be brought within the scope of Directive 2002/22/EC (Universal Service Directive) in order to facilitate access to networks and the use of services. Such equipment currently includes receive-only radio and television terminal equipment as well as special terminal devices for hearing-impaired end-users.

(Compromise amendment)

Amendment  3

Council common position – amending act

Recital 6 a (new)

Council common position

Amendment

 

(6a) The provisions of this Directive should apply without prejudice to Community rules on consumer protection, in particular Directives 93/13/EEC, 97/7/EC and 2005/29/EC, and national rules in conformity with Community law.

Amendment  4

Council common position – amending act

Recital 6 b (new)

Council common position

Amendment

 

(6b) Technological developments have led to substantial reductions in the number of public pay telephones.  In order to ensure technological neutrality and continued access by the public to voice telephony, national regulatory authorities should be able to impose obligations on undertakings to ensure not only that public pay telephones are provided to meet the reasonable needs of end-users, but also that alternative public voice telecommunications access points are provided for that purpose.

(Compromise amendment)

Amendment  5

Council common position – amending act

Recital 6 c (new)

Council common position

Amendment

 

(6c) Equivalence in disabled end-users' access to services should be guaranteed to the level available to other end-users. To this end, access should be functionally equivalent such that disabled end-users benefit from the same usability of services as other end-users, but by different means.

(Compromise amendment)

Amendment  6

Council common position – amending act

Recital 22

Council common position

Amendment

(22) Given the increasing importance of electronic communications for consumers and businesses, users should be fully informed of the traffic management policies of the service and/or network provider with which they conclude the contract. Where there is a lack of effective competition, national regulatory authorities should use the remedies available to them under Directive 2002/19/EC (Access Directive) to ensure that users' access to particular types of content or applications is not unreasonably restricted.

(22) End-users should decide what content they require to be able to send and receive, and which services, applications, hardware and software they require to use for such purposes, without prejudice to the need to preserve the integrity and security of networks and services. A competitive market with transparent offerings as provided for in Directive 2002/22/EC should ensure that end-users are able to access and distribute any content and to use any applications and/or services of their choice, as provided for in Article 8 of Directive 2002/21/EC. Given the increasing importance of electronic communications for consumers and businesses, users should in any case be fully informed of any limitations imposed on the use of electronic communications services by the service and/or network provider. Such information should, at the option of the provider, specify the type of content, application or service concerned, individual applications or services, or both. Depending on the technology used and the type of limitation, such limitations may require user consent under Directive 2002/58/EC.

Amendment  7

Council common position – amending act

Recital 24

Council common position

Amendment

(24) 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 and consumers of electronic communications services should be able to easily compare the prices of various services offered on the market based on information published in an easily accessible form. In order to allow them to make price comparisons easily, national regulatory authorities should be able to require from undertakings providing electronic communications networks and/or services greater transparency as regards information (including tariffs, consumption patterns, and other relevant statistics) and to ensure that third parties have the right to use, without charge, publicly available information published by such undertakings. National regulatory authorities should also be able to make price guides available, in particular where the market has not provided them free of charge or at a reasonable price. Undertakings should not be entitled to any remuneration for the use of information where it has already been published and thus belongs in the public domain. In addition, end-users and consumers should be adequately informed of the price and the type of service offered before they purchase a service, in particular if a freephone number is subject to additional charges. National regulatory authorities should be able to require that such information is provided generally, and, for certain categories of services determined by them, immediately prior to connecting the call, unless it is otherwise provided for by national law. When determining the categories of call requiring pricing information prior to connection, national regulatory authorities should take due account of the nature of the service, the pricing conditions which apply to it and whether it is offered by a provider who is not a provider of electronic communications services. Without prejudice to Directive 2000/31/EC (Directive on electronic commerce), undertakings should also, if required by Member States, provide subscribers with public interest information produced by the relevant public authorities regarding, inter alia, the most common infringements and their legal consequences.

(24) 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 and consumers of electronic communications services should be able to easily compare the prices of various services offered on the market based on information published in an easily accessible form. In order to allow them to make price comparisons easily, national regulatory authorities should be able to require from undertakings providing electronic communications networks and/or services greater transparency as regards information (including tariffs, consumption patterns, and other relevant statistics) and to ensure that third parties have the right to use, without charge, publicly available information published by such undertakings. National regulatory authorities should also be able to make price guides available, in particular where the market has not provided them free of charge or at a reasonable price. Undertakings should not be entitled to any remuneration for the use of information where it has already been published and thus belongs in the public domain. In addition, end-users and consumers should be adequately informed of the price and the type of service offered before they purchase a service, in particular if a freephone number is subject to additional charges. National regulatory authorities should be able to require that such information is provided generally, and, for certain categories of services determined by them, immediately prior to connecting the call, unless it is otherwise provided for by national law. When determining the categories of call requiring pricing information prior to connection, national regulatory authorities should take due account of the nature of the service, the pricing conditions which apply to it and whether it is offered by a provider who is not a provider of electronic communications services. Without prejudice to Directive 2000/31/EC (Directive on electronic commerce), undertakings should also, if required by Member States, provide subscribers with public interest information produced by the relevant public authorities regarding, inter alia, the most common infringements and their legal consequences. Dissemination of such information should however not impose an excessive burden on undertakings. Member States should require this dissemination by the means used by undertakings in communications with subscribers made in the ordinary course of business.

(Compromise amendment)

Amendment  8

Council common position – amending act

Recital 24 a (new)

Council common position

Amendment

 

(24a) Member States should introduce single information points for all user queries. These information points, which could be administered by national regulatory authorities together with consumer associations, should also be able to provide legal assistance in case of disputes with operators. Access to these information points should be free of charge and users should be informed of their existence by regular information campaigns.

Amendment  9

Council common position – amending act

Recital 26

Council common position

Amendment

(26) A competitive market should ensure that users enjoy the quality of service they require, but in particular cases it may be necessary to ensure that public communications networks attain minimum quality levels so as to prevent degradation of service, the blocking of access and the slowing of traffic over networks.

(26) A competitive market should ensure that users enjoy the quality of service they require, but in particular cases it may be necessary to ensure that public communications networks attain minimum quality levels so as to prevent degradation of service, the blocking of access and the slowing of traffic over networks. In order to meet quality of service requirements, operators may use procedures to measure and shape traffic on a network link so as to avoid filling the link to capacity or overfilling the link, which would result in network congestion and poor performance. These procedures should be deemed appropriate and reasonable as long as it can be proved that they are not anti-competitive or do not give preferential treatment to the internet services or applications of the network operators or their commercial partners over the internet services and applications of other providers. National regulatory authorities should be able to verify that these procedures do not restrict competition or have the effect of hindering the development of the information society and to remedy any abuse. Since inconsistent remedies will significantly impair the achievement of the internal market, the Commission should assess any requirements set by national regulatory authorities for possible regulatory intervention across the Community and, if necessary, adopt technical implementing measures in order to achieve consistent application throughout the Community.

(Compromise amendment)

Amendment  10

Council common position – amending act

Recital 27

Council common position

Amendment

(27) In future IP networks, where provision of a service may be separated from provision of the network, Member States should determine the most appropriate steps to be taken to ensure the availability of publicly available telephone services provided using public communications networks and uninterrupted access to emergency services in the event of catastrophic network breakdown or in cases of force majeure, taking into account the priorities of different types of subscribers and technical limitations.

(27) In future IP networks where provision of a service may be separated from provision of the network, Member States should determine the most appropriate steps to be taken to ensure the availability of publicly available telephone services provided using public communications networks and uninterrupted access to emergency services in the event of catastrophic network breakdown or in cases of force majeure.

Amendement  11

Council common position – amending act

Recital 30

Council common position

Amendement

(30) Directory enquiry services should be, and frequently are, provided under competitive market conditions, pursuant to Article 5 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services. Measures concerning the inclusion of end-user data (held by undertakings that assign telephone numbers to subscribers) in databases should comply with the safeguards for the protection of personal data, including Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications). The cost-oriented supply of that data for the purposes of publicly available directory and directory enquiry services should be in place in order to ensure that end-users benefit fully from reasonable and transparent competitive conditions.

(30) Directory enquiry services should be, and frequently are, provided in competition, pursuant to Article 5 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services. Wholesale measures ensuring the inclusion of end–user data (both fixed and mobile) in databases should comply with the safeguards for the protection of personal data, including Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications). 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 in reasonable and transparent conditions, should be in place in order to ensure that end users benefit fully from competition, with the ultimate aim of enabling the removal of retail regulation from these services and the provision of offers of directory services under reasonable and transparent conditions.

Amendment  12

Council common position – amending act

Recital 31

Council common position

Amendment

(31) End-users should be able to call and access the emergency services using any telephone service capable of originating voice calls through a number or numbers in national telephone numbering plans. Emergency authorities should be able to handle and answer calls to the number "112" at least as expeditiously and effectively as calls to national emergency numbers. It is important to increase awareness of "112" in order to improve the level of protection and security of citizens travelling in the European Union. To this 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, payphone kiosks, subscriber and billing material, that "112" can be used as a single emergency number throughout the Community. 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 "112" and periodically to evaluate the public's awareness of it. The obligation to provide caller location information should be strengthened so as to increase the protection of citizens of the European Union. In particular, undertakings should make caller location information available to emergency services as soon as the call reaches that service independently of the technology used.

(31) End-users should be able to call and access the emergency services using any telephone service capable of originating voice calls through a number or numbers in national telephone numbering plans. Emergency authorities should be able to handle and answer calls to the number "112" at least as expeditiously and effectively as calls to national emergency numbers. It is important to increase awareness of "112" in order to improve the level of protection and security of citizens travelling in the European Union. To this 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, payphone kiosks, subscriber and billing material, that "112" can be used as a single emergency number throughout the Community. 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 "112" and periodically to evaluate the public's awareness of it. The obligation to provide caller location information should be strengthened so as to increase the protection of citizens of the European Union. In particular, undertakings should make caller location information available to emergency services as soon as the call reaches that service independently of the technology used. In order to respond to technological developments, including those leading to increasingly precise accuracy of location information, the Commission should be empowered to adopt technical implementing measures in order to ensure the effective implementation of “112” in the Community for the benefit of citizens of the Union.

Amendement  13

Council common position – amending act

Recital 32

Council common position

Amendement

(32) Member States should ensure that undertakings providing end-users with an electronic communications service designed for originating calls through a number or numbers in a national telephone numbering plan provide access to emergency services with such accuracy and reliability as is technically feasible for that electronic communications service. Network-independent service providers may not have control over networks and may not be able to ensure that emergency calls made through their service are routed with the same reliability as traditional integrated telephone service providers, as they may not be able to guarantee service availability, given that problems related to infrastructure are not under their control. Once internationally-recognised standards ensuring accurate and reliable routing and connection to the emergency services are in place, network-independent service providers should also fulfil the obligations related to access to emergency services at a level comparable to that required of other undertakings.

(32) Member States should ensure that undertakings providing end users with an electronic communications service for originating calls through a number or numbers in a national telephone numbering plan provide reliable and accurate access to emergency services, taking into account possible lack of access in areas not covered by mobile networks. Network-independent undertakings may not have control over networks and may not be able to ensure that the emergency calls made through their service are routed with the same reliability as traditional integrated telephone service providers, as they may not be able to guarantee service availability, given that problems related to the infrastructure are not under the direct control of these undertakings. Once internationally-recognized standards ensuring accurate, reliable routing and connection to the emergency services are in place, all network-independent service providers should also fulfil the obligations related to access to emergency services at a level comparable to that required of other undertakings.

Amendment  14

Council common position – amending act

Recital 33 a (new)

Council common position

Amendment

 

(33a) Development of the international code “3883” (the European Telephony Numbering Space (ETNS)) is currently hindered by insufficient awareness, overly bureaucratic procedural requirements and, in consequence, lack of demand. In order to foster the development of ETNS, the countries to which the International Telecommunications Union has assigned the international code “3883” should delegate responsibility for its management, number assignment and promotion either to the Body of European Regulators in Telecom (BERT) or, following the example of the implementation of the “.eu” top-level domain, to a separate organisation, designated by the Commission on the basis of an open, transparent and non-discriminatory selection procedure, and with operating rules which form part of Community law.

Amendment  15

Council common position – amending act

Recital 33 b (new)

Council common position

Amendment

(33b) Considering the particular aspects related to reporting missing children and the currently limited availability of such a service, Member States should not only reserve a number, but also ensure that a service for reporting missing children is available in their territories under the number 116000.

Amendment  16

Council common position – amending act

Recital 36

Council common position

Amendment

(36) A single 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 within the Community including, among others, freephone and premium rate numbers. End-users should also be able to access numbers from the European Telephone Numbering Space (ETNS) and Universal International Freephone Numbers (UIFN). Cross-border access to numbering resources and to its associated services should not be prevented except in objectively justified cases, for example to combat fraudor abuse (e.g. in connection with certain premium-rate services) when the number is defined as having a national scope only (e.g. a national short code) or when it is technically or economically unfeasible. 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.

(36) A single 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 within the Community including, among others, freephone and premium rate numbers. End-users should also be able to access numbers from the European Telephone Numbering Space (ETNS) and Universal International Freephone Numbers (UIFN). Cross-border access to numbering resources and to its associated services should not be prevented except in objectively justified cases, for example to combat fraud, or abuse (e.g. in connection with certain premium-rate services) when the number is defined as having a national scope only (e.g. a national short code) or when it is technically or economically unfeasible. 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. In order to ensure that end-users have effective access to numbers and services in the Community, the Commission should be empowered to adopt implementing measures. End-users should also be able to connect to other end-users (especially via IP numbers) in order to exchange data, regardless of the operator they choose.

Amendment  17

Council common position – amending act

Recital 37

Council common position

Amendment

(37) 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 interest. It is essential to ensure that they can do so without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures, charges and so on. This does not preclude the imposition of reasonable minimum contractual periods in consumer contracts. Number portability is a key facilitator of consumer choice and effective competition in competitive markets for electronic communications. It should be implemented with the minimum delay. In any case, the technical transfer of the number should not exceed one day. Competent national authorities may establish the global process of the porting of numbers, taking into account national provisions on contracts and technical feasibility, and, where necessary, appropriate measures ensuring that consumers are protected throughout the switching process. This protection may include the limitation of porting abuse and the setting of speedy corrective action.

(37) 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 interest. It is essential to ensure that they can do so without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures, charges and so on. This does not preclude the imposition of reasonable minimum contractual periods in consumer contracts. 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 of delay, so that the number is available for use by the consumer with the new undertaking within one working day. Competent national authorities may establish the global process of the porting of numbers, taking into account national provisions on contracts and technological developments, in order to ensure continuity of service. Experience in certain Member States has shown that there is a risk of consumers being switched without 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 as are necessary to minimise such risks and to ensure that consumers are protected throughout the switching process, including appropriate sanctions, without making the process less attractive for consumers.

(Compromise amendment)

Amendment  18

Council common position – amending act

Recital 39

Council common position

Amendment

(39) In order to overcome existing shortcomings in terms of consumer consultation and 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 consultations. 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 usage.

(39) In order to overcome existing shortcomings in terms of consumer consultation and 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 consultations. 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 usage. Where there is a need to address the facilitation of the access to and use of electronic communications services and terminal equipment for disabled users, and without prejudice to Directive 1999/5/EC and in particular the disability requirements laid down in Article 3(3)(f) thereof, the Commission should be empowered to adopt implementing measures.

Amendment  19

Council common position – amending act

Recital 39 a (new)

Council common position

Amendment

 

(39a) Procedures for out-of-court dispute resolution should be strengthened by ensuring that independent dispute resolution bodies are used, and that procedures conform at least to the minimum principles established by Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes1. Member States may either use existing dispute resolution bodies for that purpose, provided those bodies meet the applicable requirements, or establish new bodies. Furthermore, when dealing with out-of-court procedures, Member States should make every effort to ensure that those procedures are transparent and exercised impartially, in particular in view of Recommendation 98/257/EC, so that the effectiveness, fairness and legality of procedures is safeguarded.

 

___________

OJ L 115, 17.4.1998, p. 31.

Amendment  20

Council common position – amending act

Recital 39 b (new)

Council common position

Amendment

 

(39b) Directive 2002/58/EC provides for the harmonisation of the provisions of national law required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and the right to confidentiality, with respect to the processing of personal data in the electronic communications sector, and to ensure the free movement of such data and of electronic communications equipment and services in the Community. Where measures aiming to ensure that terminal equipment is constructed so as to safeguard the protection of personal data and privacy are adopted pursuant to Directive 1999/5/EC or Council Decision 87/95/EEC, such measures should respect the principle of technology neutrality.

Amendment  21

Council common position – amending act

Recital 39 c (new)

Council common position

Amendment

 

(39c) When adopting implementing measures on the security of processing, the Commission should consult all relevant European authorities and organisations (ENISA, the European Data Protection Supervisor and the Article 29 Working Party) as well as all other relevant stakeholders, particularly in order to be informed of the best available technical and economic methods for improving the implementation of Directive 2002/58/EC.

Amendment  22

Council common position – amending act

Recital 39 d (new)

Council common position

Amendment

 

(39d) Developments concerning the use of IP addresses should be followed closely, taking into consideration the work already done by, among others, the Working Party on the Protection of Individuals with regard to the Processing of Personal Data established by Article 29 of Directive 95/46/EC, and in the light of such proposals as may be appropriate.

(Compromise amendment)

Amendment  23

Council common position – amending act

Recital 43

Council common position

Amendment

(43) In line with the objectives of the regulatory framework for electronic communications networks and services and with the principles of proportionality and subsidiarity, and for the purposes of legal certainty and efficiency for European businesses and national regulatory authorities alike, this Directive focuses on public electronic communications networks and services, and does not apply to closed user groups and corporate networks.

(43) In line with the objectives of the regulatory framework for electronic communications networks and services and with the principles of proportionality and subsidiarity, and for the purposes of legal certainty and efficiency for European businesses and national regulatory authorities alike, this Directive focuses on electronic communications services, that is services normally provided for remuneration and consisting wholly or mainly in the transmission of signals on electronic communications networks, if those services are available to the public, and therefore does not apply to services made available to limited groups of identifiable individuals such as closed user groups and corporate networks.

Amendment  24

Council common position – amending act

Recital 45

Council common position

Amendment

(45) The provider of a publicly available electronic communications service should take appropriate technical and organisational measures to ensure the security of its services. Without prejudice to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, such measures should ensure that personal data can be accessed only by authorised personnel for legally authorised purposes and that the personal data stored or transmitted as well as the network and services are protected. Moreover, a security policy with respect to the processing of personal data should be established in order to identify vulnerabilities in the system and monitoring and preventive, corrective and mitigating action should be regularly carried out.

(45) The provider of a publicly available electronic communications service or an information society service should take appropriate technical and organisational measures to ensure the security of its services. Without prejudice to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, such measures should ensure that personal data can be accessed only by authorised personnel for legally authorised purposes, and that the personal data stored or transmitted, as well as the network and services, are protected. Moreover, a security policy with respect to the processing of personal data and appropriate to the operations of the provider should be established in order to identify vulnerabilities in the system, and monitoring and preventive, corrective and mitigating action should be regularly carried out.

Amendment  25

Council common position – amending act

Recital 45 a (new)

Council common position

Amendment

 

(45a) Competent national authorities should promote the interests of citizens of the Union by, inter alia, contributing to ensuring a high level of protection of personal data and privacy. To this end, they must have the necessary means to perform their duties, including comprehensive and reliable data about actual security incidents that have led to the personal data of individuals being compromised. They should monitor measures taken and disseminate best practices among providers of publicly available electronic communications services. Providers should therefore keep updated and comprehensive records detailing all personal data breaches to enable further analysis and evaluation by the competent national authorities, and should inform those authorities of all personal data breaches.

Amendment  26

Council common position – amending act

Recital 47

Council common position

Amendment

(47) A breach of security resulting in the loss or compromising personal data of an individual subscriber may, if not addressed in an adequate and timely manner, result in substantial economic loss and social harm, including identity fraud. Therefore, as soon as the provider of publicly available electronic communications service becomes aware that such a breach has occurred, it should assess the risks associated with it, e.g. by establishing the type of data affected by the breach (including their sensitivity, context and security measures in place), the cause and extent of the breach, the number of subscribers affected, and the possible harm for subscribers as a result of the breach (e.g. identity theft, financial loss, loss of business or employment opportunities, physical harm). The subscribers concerned by security incidents that could result in a serious risk to their privacy (e.g. identity theft or fraud, physical harm, significant humiliation or damage to reputation) should be notified without delay in order to allow them to take the necessary precautions. The notification should include information about measures taken by the provider to address the breach, as well as recommendations for the users affected. Notification of a security breach to a subscriber should not be required if the provider has demonstrated to the competent authority that it has implemented appropriate technological protection measures, and that those measures were applied to the data concerned by the security breach. Such technological protection measures should render the data unintelligible to any person who is not authorised to access it.

(47) A personal data breach may, if not addressed in an adequate and timely manner, result in substantial economic loss and social harm to the subscriber or individual concerned. Therefore the provider of publicly available electronic communications services or information society services should assess the possible adverse effects of a breach, such as, inter alia, identity theft, fraud, financial loss, loss of business or employment opportunities, physical harm, significant humiliation or damage to reputation, and access to emails and other communications, as soon as the provider becomes aware of the breach. The assessment should be conducted promptly and with all reasonable care, and should assume that any identified adverse effects are about to materialise. For the purpose of notification to subscribers or individuals of a personal data breach likely to have an adverse effect on them, the requirement to notify without undue delay should be taken to mean that they should be notified in such time as to enable them to take the necessary precautions. The notification should include information about measures taken by the provider to address the breach, as well as recommendations for the subscriber or individual concerned intended to prevent or minimise the likely adverse effects of the breach. Notification of a breach to a subscriber or individual should however not be required if the provider has demonstrated to the competent authority that it has implemented appropriate technological protection measures which render the data unintelligible to any person who is not authorised to access it, and that those measures were applied to the data concerned by the breach.

Amendment  27

Council common position – amending act

Recital 50

Council common position

Amendment

(50) Provision should be made for the Commission to adopt recommendations on the means to achieve an adequate level of privacy protection and security of personal data transmitted or processed in connection with the use of electronic communications networks in the internal market.

(50) Provision should be made for the adoption of implementing measures establishing a common set of requirements to achieve an adequate level of privacy protection and security of personal data transmitted or processed in connection with the use of electronic communications networks in the internal market.

Amendment  28

Council common position – amending act

Recital 51

Council common position

Amendment

(51) In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of the breach, including whether or not personal data had been protected by encryption or other means, effectively limiting the likelihood of identity fraud or other forms of misuse. Moreover, such rules and procedures should take into account the legitimate interests of law enforcement authorities in cases where early disclosure could unnecessarily hamper the investigation of the circumstances of a breach.

(51) In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of the breach, including whether or not personal data had been protected by appropriate technical protection measures, effectively limiting the likelihood of identity fraud or other forms of misuse. Moreover, such rules and procedures should take into account the legitimate interests of law enforcement authorities in cases where early disclosure could unnecessarily hamper the investigation of the circumstances of a breach.

Amendment  29

Council common position – amending act

Recital 51 a (new)

Council common position

Amendment

 

(51a) The Commission should be empowered to adopt measures on the security of processing. When adopting such measures, it should consult all relevant European authorities and organisations, such as ENISA, the European Data Protection Supervisor and the Article 29 Working Party, as well as all other relevant stakeholders, in order particularly to be informed of the best available technical and economic methods for improving the implementation of Directive 2002/58/EC. Since those measures are of general scope and are designed to amend non-essential elements of that Directive by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

Amendment  30

Council common position – amending act

Recital 52

Council common position

Amendment

(52) Software that surreptitiously monitors the actions of the user or subverts the operation of the user's terminal equipment to the benefit of a third party (so-called "spyware") poses a serious threat to the privacy of users. A high and equal level of protection of the private sphere of users needs to be ensured, regardless of whether unwanted spying programmes are inadvertently downloaded via electronic communications networks or are delivered and installed hidden in software distributed on other external data storage media, such as CDs, CD-ROMs or USB keys. Member States should encourage end-users to take the necessary steps to protect their terminal equipment against viruses and spyware.

(52) Software that surreptitiously monitors the actions of the user or subverts the operation of the user’s terminal equipment to the benefit of a third party (“spyware”) poses a serious threat to the privacy of users, as can viruses. A high and equal level of protection of the private sphere of users needs to be ensured, regardless of whether unwanted spy programmes or viruses are inadvertently downloaded via electronic communications networks or are delivered and installed hidden in software distributed on other external data storage media, such as CDs, CD-ROMs or USB keys. Member States should inform end-users of available precautions and encourage them to take the necessary steps to protect their terminal equipment against viruses and spyware.

Amendment  31

Council common position – amending act

Recital 52 a (new)

Council common position

Amendment

 

(52a) Safeguards provided for subscribers against intrusion into their privacy by unsolicited communications for direct marketing purposes by means of electronic mail are also applicable to SMS, MMS and other kinds of similar applications.

Amendment  32

Council common position – amending act

Recital 57

Council common position

Amendment

(57) The measures necessary for the implementation of Directive 2002/22/EC (Universal Service Directive) should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.

(57) The measures necessary for the implementation of Directive 2002/22/EC (Universal Service Directive) and Directive 2002/58/EC (Directive on privacy and electronic communications) should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.

Amendment  33

Council common position – amending act

Recital 57 a (new)

Council common position

Amendment

 

(57a) The Commission should, if and when a new legal basis is available, present to the European Parliament and the Council a new legislative proposal on privacy and data security in electronic communications, based on such a new legal basis.

Amendment  34

Council common position – amending act

Recital 58

Council common position

Amendment

(58) In particular, the Commission should be empowered to adapt the Annexes to technical progress or changes in market demand. Since those measures are of a general scope and are designed to amend non-essential elements of Directive 2002/22/EC (Universal Service Directive) by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

(58) In particular, the Commission should be empowered to adopt implementing measures on tariff transparency, minimum quality of service requirements, effective implementation of “112” services, effective access to numbers and services, and improvement of accessibility by disabled end-users, as well as to adapt the Annexes to technical progress or changes in market demand. It should also be empowered to adopt implementing measures concerning information and notification requirements, as well as cross-border cooperation. Since those measures are of general scope and are designed to amend non-essential elements of Directive 2002/22/EC (Universal Service Directive) by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. Given that the conduct of the regulatory procedure with scrutiny within the normal time limits could, in certain exceptional situations, impede the timely adoption of implementing measures, the European Parliament, the Council and the Commission should act speedily in order to ensure the timely adoption of those measures.

Amendment  35

Council common position – amending act

Recital 60

Council common position

Amendment

(60) In accordance with point 34 of the Interinstitutional Agreement on better law-making, Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications) and the transposition measures, and to make them public.

(60) In accordance with point 34 of the Interinstitutional agreement on better law-making, Member States should draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications) and the transposition measures, and to make them public.

Amendment  36

Council common position – amending act

Article 1 – point 1

Directive 2002/22/EC

Article 1 – paragraph 3

 

Council common position

Amendment

3. The provisions of this Directive concerning end-users' rights shall apply without prejudice to Community rules on consumer protection, in particular Directives 93/13/EEC and 97/7/EC, and national rules in conformity with Community law.

3. The provisions of this Directive shall apply without prejudice to Community rules on consumer protection, in particular Directives 93/13/EEC, 97/7/EC and 2005/29/EC, and national rules in conformity with Community law.

Amendement  37

Council common position – amending act

Article 1 – point 2 – point (b)

Directive 2002/22/EC

Article 2 – point (c)

 

Council common position

Amendement

(c) "publicly available telephone service" means a service made available to the public for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international telephone numbering plan;

(c) “publicly available telephone service” means a service available to the public for originating and/or receiving, directly or indirectly, national and/or international calls and other means of communication specifically intended for disabled users using text relay or total conversation services through a number or numbers in a national or international telephone numbering plan;

Amendment  38

Council common position – amending act

Article 1 – point 4 a (new)

Directive 2002/22/EC

Article 6 – title and paragraph 1

 

Council common position

Amendment

 

(4a) the title and paragraph 1 of Article 6 shall be replaced by the following:

 

"Public pay telephones and other public voice telephony access points

 

 

 

1. Member States shall ensure that national regulatory authorities can impose obligations on undertakings in order to ensure that public pay telephones or other public voice telephony access points are provided to meet the reasonable needs of end-users in terms of the geographical coverage, the number of telephones or other access points, [...] accessibility [...] to disabled users and the quality of services."

(Compromise amendment)

Amendment  39

Council common position – amending act

Article 1 – point 5

Directive 2002/22/EC

Article 7 – paragraph 1

 

Council common position

Amendment

1. Unless requirements have been specified under Chapter IV which achieve the equivalent effect, Member States shall take specific measures to ensure access to, and affordability of, the services identified in Articles 4(3) and Article 5 for disabled end-users, which is comparable to that enjoyed by other end-users. Member States may oblige national regulatory authorities to assess the general need and the specific requirements, including the extent and concrete form of such specific measures for disabled end-users.

1. Unless requirements have been specified under Chapter IV which achieve the equivalent effect, Member States shall take specific measures to ensure that access to, and affordability of, the services identified in Articles 4(3) and Article 5 for disabled end-users is equivalent to the level enjoyed by other end-users. Member States may oblige national regulatory authorities to assess the general need and the specific requirements, including the extent and concrete form of such specific measures for disabled end-users.

(Compromise amendment)

Amendment  40

Council common position – amending act

Article 1 – point 5

Directive 2002/22/EC

Article 7 – paragraph 2 a (new)

 

Council common position

Amendment

 

2a. In taking the measures referred to in paragraphs 1 and 2, Member States shall encourage compliance with the relevant standards or specifications published in accordance with Articles 17, 18 and 19 of Directive 2002/21/EC (Framework Directive).

Amendment  41

Council common position – amending act

Article 1 – point 13

Directive 2002/22/EC

Article 20

 

Council common position

Amendment

1. Member States shall ensure that, when subscribing to services providing connection to a public communications network and/or publicly available electronic communications services, consumers, and other end-users so requesting, have a right to a contract with an undertaking or undertakings providing such connection and/or services. The contract shall specify in a clear, comprehensive and easily accessible form at least:

1. Member States shall ensure that, when subscribing to services providing connection to a public communications network and/or publicly available electronic communications services, consumers, and other end-users so requesting, have a right to a contract with an undertaking or undertakings providing such connection and/or services. The contract shall specify in a clear, comprehensive and easily accessible form at least:

(a) the identity and address of the supplier;

(a) the identity and address of the undertaking;

(b) the services provided, including in particular,

(b) the services provided, including in particular

 

– whether or not access to emergency services and caller location information is being provided, and/or any limitations on the provision of emergency services under Article 26,

information on the provider's traffic management policies,

information on any other conditions limiting access to and/or use of services and applications, where such conditions are allowed under national law in accordance with Community law,

– the minimum service quality levels offered, namely the time for the initial connection and, where appropriate, other quality of service parameters, as defined by the national regulatory authorities,

– the minimum service quality levels offered, namely the time for the initial connection and, where appropriate, other quality of service parameters, as defined by the national regulatory authorities,

 

- information on any procedures put in place by the undertaking to measure and shape traffic so as to avoid filling or overfilling a network link and on how those procedures could impact on service quality,

– the types of maintenance service offered and customer support services provided, as well as the means of contacting these services,

– the types of maintenance service offered and customer support services provided, as well as the means of contacting these services,

– any restrictions imposed by the provider on the use of terminal equipment supplied;

– any restrictions imposed by the provider on the use of terminal equipment supplied;

(c) where an obligation exists under Article 25, the subscriber's options as to whether or not to include his or her personal data in a directory, and the data concerned;

(c) where an obligation exists under Article 25, the subscriber's options as to whether or not to include his or her personal data in a directory, and the data concerned;

(d) details of prices and tariffs, the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained, payment methods offered and any differences in costs due to payment method;

(d) details of prices and tariffs, the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained, payment methods offered and any differences in costs due to payment method;

(e) the duration of the contract and the conditions for renewal and termination of services and of the contract, including:

(e) the duration of the contract and the conditions for renewal and termination of services and of the contract, including:

conditions regarding minimum contract duration related to promotions,

– any minimum usage required to benefit from promotional terms,

any charges related to portability of numbers and other identifiers,

any charges related to portability of numbers and other identifiers,

any charges due on termination of the contract, including any cost recovery with respect to terminal equipment;

any charges due on termination of the contract, including any cost recovery with respect to terminal equipment;

(f) any compensation and the refund arrangements which apply if contracted service quality levels are not met;

(f) any compensation and the refund arrangements which apply if contracted service quality levels are not met;

(g) the means of initiating procedures for the settlement of disputes in accordance with Article 34;

(g) the means of initiating procedures for the settlement of disputes in accordance with Article 34;

(h) the type of action that might be taken by the undertaking in reaction to security or integrity incidents or threats and vulnerabilities.

(h) the type of action that might be taken by the undertaking providing connection to a public communications network and/or publicly available electronic communications services in reaction to security or integrity incidents or threats and vulnerabilities, as well as any compensation arrangements which apply if security or integrity incidents occur.

Member States may also require that the contract include any information which may be provided by the relevant public authorities for this purpose on the use of electronic communications networks and services to engage in unlawful activities or to disseminate harmful content, and on the means of protection against risks to personal security, privacy and personal data, referred to in Article 21(4)(a) and relevant to the service provided.

Member States may also require that the contract include any information which may be provided by the relevant public authorities for this purpose on the use of electronic communications networks and services to engage in unlawful activities or to disseminate harmful content, and on the means of protection against risks to personal security, privacy and personal data, referred to in Article 21(4) and relevant to the service provided.

2. Member States shall ensure that where contracts are concluded between subscribers and undertakings providing electronic communications services that allow voice communication, subscribers are clearly informed as to whether or not access to emergency services and caller location information is provided. Providers of electronic communications services shall ensure that customers are clearly informed in advance of the conclusion of a contract of any limitation on access to emergency services, and of any change to access to the emergency services.

 

3. Member States shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions. Member States shall ensure that national regulatory authorities are able to specify the format of such notifications.

2. Member States shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions. Member States shall ensure that national regulatory authorities are able to specify the format of such notifications.

(Compromise amendment. Whole of Article 20, including parts not amended, reproduced above)

Amendment  42

Council common position – amending act

Article 1 – point 13

Directive 2002/22/EC

Article 21

 

Council common position

Amendment

1. Member States shall ensure that national regulatory authorities are able to oblige undertakings providing electronic communications networks and/or services to publish transparent, comparable, adequate and up-to-date information, as set out in Annex II, on applicable prices and tariffs and standard terms and conditions in respect of access to, and use of, services provided by them to end-users and consumers. National regulatory authorities may specify additional requirements regarding the form in which such information is published to ensure transparency, comparability, clarity and accessibility for the benefit of consumers.

1. Member States shall ensure that national regulatory authorities are able to oblige undertakings providing public electronic communications network and/or publicly available electronic communications services to publish transparent, comparable, adequate and up-to-date information on applicable prices and tariffs, any charges due on termination of a contract and standard terms and conditions in respect of access to, and use of, services provided by them to end-users and consumers in accordance with Annex II. Such information shall be published in a clear, comprehensive and easily accessible form. National regulatory authorities may specify additional requirements regarding the form in which such information is to be published.

2. National regulatory authorities shall encourage the provision of comparable information to enable end-users and consumers to make an independent evaluation of the cost of alternative usage patterns, for instance by means of interactive guides or similar techniques. Member States shall ensure that national regulatory authorities may make such guides or techniques available, in particular where they are not available, on the market free of charge or at a reasonable price. Third parties shall have a right to use, free of charge, the information published by undertakings providing electronic communications networks and/or services for the purposes of selling or making available such guides or techniques.

2. National regulatory authorities shall encourage the provision of comparable information to enable end-users and consumers to make an independent evaluation of the cost of alternative usage patterns, for instance by means of interactive guides or similar techniques. Where such facilities are not available on the market free of charge or at a reasonable price, Member States shall ensure that national regulatory authorities are able to make such guides or techniques available themselves or through third party procurement. Third parties shall have a right to use, free of charge, the information published by undertakings providing electronic communications networks and/or publicly available electronic communications services for the purposes of selling or making available such interactive guides or similar techniques.

 

 

3. Member States shall ensure that national regulatory authorities are able to oblige undertakings providing electronic communications services to inter alia:

3. Member States shall ensure that national regulatory authorities are able to oblige undertakings providing public electronic communications network and/or publicly available electronic communications services to inter alia:

(a) provide applicable tariff information to subscribers regarding any number or service subject to particular pricing conditions; with respect to individual categories of services, national regulatory authorities may require such information to be provided immediately prior to connecting the call;

(a) provide applicable tariff information to subscribers regarding any number or service subject to particular pricing conditions; with respect to individual categories of services, national regulatory authorities may require such information to be provided immediately prior to connecting the call;

 

(aa) regularly remind subscribers of access conditions regarding emergency services or caller location information in the service to which they have subscribed;

(b) inform subscribers of any change to the provider's traffic management policies;

(b) inform subscribers of any change to conditions limiting access to and/or use of services and applications, where such conditions are allowed under national law in accordance with Community law;

 

(ba) provide information on any procedures put in place by the provider to measure and shape traffic so as to avoid filling or overfilling a network link and on how those procedures could impact on service quality;

(c) inform subscribers of their right to determine whether or not to include their personal data in a directory and of the types of data concerned in accordance with Article 12 of Directive 2002/58/EC; and

(c) inform subscribers of their right to determine whether or not to include their personal data in a directory and of the types of data concerned in accordance with Article 12 of Directive 2002/58/EC; and

(d) regularly inform disabled subscribers of details of products and services designed for them.

(d) regularly inform disabled subscribers of details of products and services designed for them.

If deemed appropriate, national regulatory authorities may promote self- or co-regulatory measures prior to imposing any obligation.

If deemed appropriate, national regulatory authorities may promote self- or co-regulatory measures prior to imposing any obligation.

4. Member States may require that undertakings referred to in paragraph 3 distribute public interest information free of charge to existing and new subscribers, where appropriate. In such a case, that information shall be provided by the relevant public authorities in a standardised format and shall, inter alia, cover the following topics:

4. Member States may require that undertakings referred to in paragraph 3 distribute public interest information free of charge to existing and new subscribers, where appropriate, through the same means as those ordinarily used by the undertakings for their communications with subscribers. In such a case, that information shall be provided by the relevant public authorities in a standardised format and shall, inter alia, cover the following topics:

(a) the most common uses of electronic communications services to engage in unlawful activities or to disseminate harmful content, particularly where it may prejudice respect for the rights and freedoms of others, including infringements of copyright and related rights, and their legal consequences; and

(a) the most common uses of electronic communications services to engage in unlawful activities or to disseminate harmful content, particularly where it may prejudice respect for the rights and freedoms of others, including infringements of copyright and related rights, and their legal consequences; and

(b) the means of protection against risks to personal security, privacy and personal data when using electronic communications services.

(b) the means of protection against risks to personal security, privacy and personal data when using electronic communications services.

(Compromise amendment. Whole of Article 21, including parts not amended, reproduced above)

Amendment  43

Council common position – amending act

Article 1 – point 13

Directive 2002/22/EC

Article 22 – paragraph 1

 

Council common position

Amendment

1. Member States shall ensure that national regulatory authorities are, after taking account of the views of interested parties, able to require undertakings that provide publicly available electronic communications networks and/or services to publish comparable, adequate and up-to-date information for end-users on the quality of their services and measures taken to ensure comparable access for disabled end-users. That information shall, on request, be supplied to the national regulatory authority in advance of its publication.

1. Member States shall ensure that national regulatory authorities are, after taking account of the views of interested parties, able to require undertakings that provide publicly available electronic communications networks and/or services to publish comparable, adequate and up-to-date information for end-users on the quality of their services and measures taken to ensure equivalence in access for disabled end-users. That information shall, on request, be supplied to the national regulatory authority in advance of its publication.

(Compromise amendment)

Amendment  44

Council common position – amending act

Article 1 – point 13

Directive 2002/22/EC

Article 22 – paragraph 2

 

Council common position

Amendment

2. National regulatory authorities may specify, inter alia, the quality of service parameters to be measured, and the content, form and manner of the information to be published, including possible quality certification mechanisms, in order to ensure that end-users have access to comprehensive, comparable, reliable and user-friendly information. Where appropriate, the parameters, definitions and measurement methods set out in Annex III may be used.

2. National regulatory authorities may specify, inter alia, the quality of service parameters to be measured, and the content, form and manner of the information to be published, including possible quality certification mechanisms, in order to ensure that end-users, including disabled end-users, have access to comprehensive, comparable, reliable and user-friendly information. Where appropriate, the parameters, definitions and measurement methods set out in Annex III may be used.

Amendment  45

Council common position – amending act

Article 1 – point 13

Directive 2002/22/EC

Article 22 – paragraph 3 - subparagraph 1 a (new)

 

Council common position

Amendment

 

The Commission may, having examined such requirements and consulted the Body of European Regulators in Telecom (BERT), adopt technical implementing measures in that regard if it considers that the requirements may create a barrier to the internal market. Those measures designed to amend non-essential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 37(2).

Amendment  46

Council common position – amending act

Article 1 – point 14

Directive 2002/22/EC

Article 23a – title

 

Council common position

Amendment

Ensuring comparable access and choice for disabled end-users

Ensuring equivalence in access and choice for disabled end-users

(Compromise amendment)

Amendment  47

Council common position – amending act

Article 1 – point 14

Directive 2002/22/EC

Article 23a – paragraph 1 – point (a)

 

Council common position

Amendment

(a) have access to electronic communications services comparable to that enjoyed by the majority of end-users; and

(a) have access to electronic communication services equivalent to that enjoyed by the majority of end-users; and

(Compromise amendment)

Amendment  48

Council common position – amending act

Article 1 – point 15

Directive 2002/22/EC

Article 25

 

Council common position

Amendment

15) Article 25 shall be amended as follows:

15) Article 25 shall be replaced by the following:

(a) the title shall be replaced by the following:

"Article 25

"Telephone directory enquiry services";

Telephone directory enquiry services

(b) paragraph 1 shall be replaced by the following:

 

"1. Member States shall ensure that subscribers to publicly available telephone services have the right to have an entry in the publicly available directory referred to in Article 5(1)(a) and to have their information made available to providers of directory enquiry services and/or directories in accordance with paragraph 2 of this Article.";

1. Member States shall ensure that subscribers to publicly available telephone services have the right to have an entry in the publicly available directory referred to in Article 5(1)(a) and to have their information made available to providers of directory enquiry services and/or directories in accordance with paragraph 2 of this Article.

 

2. Member States shall ensure that all undertakings which assign telephone numbers to subscribers meet all reasonable requests to make available, for the purposes of the provision of publicly available directory enquiry services and directories, the relevant information in an agreed format on terms which are fair, objective, cost oriented and non-discriminatory.

(c) paragraphs 3, 4 and 5 shall be replaced by the following:

 

"3. Member States shall ensure that all end-users provided with a publicly available telephone service can access directory enquiry services. National regulatory authorities shall be able to impose obligations and conditions on undertakings that control access of end-users for the provision of directory enquiry services in accordance with the provisions of Article 5 of Directive 2002/19/EC (Access Directive). Such obligations and conditions shall be objective, proportionate, non-discriminatory and transparent.

3. Member States shall ensure that all end-users provided with a publicly available telephone service can access directory enquiry services. National regulatory authorities shall be able to impose obligations and conditions on undertakings that control access of end-users for the provision of directory enquiry services in accordance with the provisions of Article 5 of Directive 2002/19/EC (Access Directive). Such obligations and conditions shall be objective, equitable, non-discriminatory and transparent.

4. Member States shall not maintain any regulatory restrictions which prevent end-users in one Member State from accessing directly the directory enquiry service in another Member State by voice call or SMS, and shall take measures to ensure such access in accordance with Article 28.

4. Member States shall not maintain any regulatory restrictions which prevent end-users in one Member State from accessing directly the directory enquiry service in another Member State by voice call or SMS.

5. Paragraphs 1 to 4 shall apply subject to the requirements of Community legislation on the protection of personal data and privacy and, in particular, Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications)."

5. Paragraphs 1 to 4 shall apply subject to the requirements of Community legislation on the protection of personal data and privacy and, in particular, Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications)."

(Compromise amendment. Whole of Article 25, including parts not amended, reproduced above. Paragraph 2 is unchanged from Directive 2002/22/EC.)

Amendment  49

Council common position – amending act

Article 1 – point 16

Directive 2002/22/EC

Article 26 – paragraph 2

 

Council common position

Amendment

2. Member States shall ensure that undertakings providing end-users with an electronic communications service for originating national calls to a number or numbers in a national telephone numbering plan provide access to emergency services.

2. Member States, in cooperation with national regulatory authorities, emergency services and providers, shall ensure that undertakings providing an electronic communications service for originating national and/or international calls through a number or numbers in a national or international telephone numbering plan provide reliable access to emergency services.

Amendment  50

Council common position – amending act

Article 1 – point 16

Directive 2002/22/EC

Article 26 – paragraph 4

 

Council common position

Amendment

4. Member States shall ensure that access for disabled end-users to emergency services is comparable to that enjoyed by other end-users. Measures taken to ensure that disabled end-users are able to access emergency services whilst travelling in other Member States shall be based to the greatest extent possible on European standards or specifications published in accordance with the provisions of Article 17 of Directive 2002/21/EC (Framework Directive), and they shall not prevent Member States from adopting additional requirements in order to pursue the objectives set out in this Article.

4. Member States shall ensure that access for disabled end-users to emergency services is equivalent to that enjoyed by other end-users. Measures taken to ensure that disabled end-users are able to access emergency services whilst travelling in other Member States shall be based to the greatest extent possible on European standards or specifications published in accordance with the provisions of Article 17 of Directive 2002/21/EC (Framework Directive), and they shall not prevent Member States from adopting additional requirements in order to pursue the objectives set out in this Article.

(Compromise amendment)

Amendement  51

Council common position – amending act

Article 1 – point 16

Directive 2002/22/EC

Article 26 – paragraph 5

 

Council common position

Amendement

5. Member States shall ensure that, to the extent technically feasible, undertakings concerned make caller location information available free of charge to the authority handling emergency calls as soon as the call reaches that authority. This applies to all calls to the single European emergency call number "112". Member States may extend this obligation to cover calls to national emergency numbers. Where undertakings referred to in paragraph 2 wish to claim that providing caller location information is not technically feasible, they shall bear the burden of proving this.

5. Member States shall ensure that undertakings concerned make caller location information available free of charge to the authority handling emergency calls as soon as the call reaches that authority. This applies to all calls to the single European emergency call number "112". Member States may extend this obligation to cover calls to national emergency numbers.

Amendment  52

Council common position – amending act

Article 1 – point 16

Directive 2002/22/EC

Article 26 – paragraph 6 a (new)

 

Council common position

Amendment

 

6a. In order to ensure the effective implementation of “112” services in the Member States, the Commission, having consulted BERT, may adopt technical implementing measures.

 

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 37(2).

Amendment  53

Council common position – amending act

Article 1 – point 16

Directive 2002/22/EC

Article 27 – paragraph 1 a (new)

 

Council common position

Amendment

 

1a. A legal entity, established within the Community and designated by the Commission, shall have sole responsibility for the management, including number assignment, and promotion of the European Telephony Numbering Space. The Commission shall adopt the necessary implementing rules.

Amendment  54

Council common position – amending act

Article 1 – point 16

Directive 2002/22/EC

Article 27 – paragraph 2

 

Council common position

Amendment

2. Member States shall ensure that all undertakings that provide publicly available telephone services allowing international calls handle all calls to and from the European Telephony Numbering Space (ETNS), without prejudice to the need for undertakings to recover their costs.

2. Member States shall ensure that all undertakings that provide publicly available telephone services handle all calls to and from the ETNS, at rates that do not exceed the maximum rate they apply for calls to and from other Member States.

Amendment  55

Council common position – amending act

Article 1 – point 17

Directive 2002/22/EC

Article 27a – paragraphs 2 to 4

 

Council common position

Amendment

2. Member States shall facilitate access by disabled end-users to services provided under the "116" numbering range. Measures taken to facilitate disabled end-users' access to such services whilst travelling in other Member States may include ensuring compliance with relevant standards or specifications published in accordance with the provisions of Article 17 of Directive 2002/21/EC (Framework Directive).

2. Member States shall ensure that disabled end-users are able to access services provided under the '116' numbering range. Measures taken to ensure that disabled end-users are able to access such services whilst travelling in other Member States shall include ensuring compliance with relevant standards or specifications published in accordance with the provisions of Article 17 of Directive 2002/21/EC (Framework Directive).

3. Member States shall ensure that citizens are adequately informed of the existence and use of services provided under the "116" numbering range, in particular through initiatives specifically targeting persons travelling between Member States

3. Member States shall ensure that citizens are adequately informed of the existence and use of services provided under the '116' numbering range, in particular through initiatives specifically targeting persons travelling between Member States.

4. Member States shall, in addition to measures of general applicability to all numbers in the "116" numbering range taken pursuant to paragraphs 1, 2, and 3, facilitate citizens' access to a service operating a hotline to report cases of missing children. The hotline shall be available on the number 116000.

4. Member States shall, in addition to measures of general applicability to all numbers in the '116' numbering range taken pursuant to paragraphs 1, 2 and 3, ensure citizens' access to a service operating a hotline to report cases of missing children. The hotline shall be available on the number 116000.

Amendment  56

Council common position – amending act

Article 1 – point 17

Directive 2002/22/EC

Article 27a – paragraph 4 a (new)

 

Council common position

Amendment

 

4a. In order to ensure the effective implementation of the '116' numbering range, in particular the missing children hotline number 116000, in the Member States, including access for disabled end-users when travelling in other Member States, the Commission, having consulted BERT, may adopt technical implementing measures.

 

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 37(2).

Amendment  57

Council common position – amending act

Article 1 – point 18

Directive 2002/22/EC

Article 28 – paragraph 1 – points (a) and (b)

 

Council common position

Amendment

(a) access and use services using non-geographic numbers within the Community; and

(a) access and use services using non-geographic numbers within the Community;

(b) access all numbers provided in the Community, including those in the national numbering plans of Member States, those from the ETNS and Universal International Freephone Numbers (UIFN).

(b) access all numbers provided in the Community regardless of the technology and devices used by the operator, including those in the national numbering plans of Member States, those from the ETNS and Universal International Freephone Numbers (UIFN); and

Amendment  58

Council common position – amending act

Article 1 – point 18

Directive 2002/22/EC

Article 28 – paragraph 1 – point (b a) (new)

 

Council common position

Amendment

 

(ba) access and use services through text telephones, video telephones and products which help elderly people or people with disabilities to communicate, at least as regards emergency calls.

Amendment  59

Council common position – amending act

Article 1 – point 18

Directive 2002/22/EC

Article 28 – paragraph 2 a (new)

 

Council common position

Amendment

 

2a. In order to ensure that end users have effective access to numbers and services in the Community, the Commission may adopt technical implementing measures. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 37(2).

 

Any such technical implementing measures may be periodically reviewed to take account of market and technological developments.

Amendment   60

Council common position – amending act

Article 1 – point 19 – point (b)

Directive 2002/22/EC

Article 29 – paragraph 3

 

Council common position

Amendment

3. Without prejudice to Article 10(2), Member States may impose the obligations set out in points (a) and (e) of Part A of Annex I as a general requirement on all undertakings providing access to public communications networks and/or publicly available telephone services.

3. Without prejudice to Article 10(2), Member States may impose the obligations set out in point (e) of Part A of Annex I concerning disconnection as a general requirement on all undertakings providing access to public communications networks and/or publicly available telephone services.

Amendment   61

Council common position – amending act

Article 1 – point 20

Directive 2002/22/EC

Article 30 – paragraphs 4 and 5

 

Council common position

Amendment

4. Porting of numbers and their subsequent activation shall be carried out within the shortest possible time. In any case, the time taken for the technical transfer of the number shall not exceed one day.

4. Porting of numbers and their subsequent activation shall be carried out within the shortest possible time. In any case, subscribers who have concluded an agreement to port a number to a new undertaking shall have that number activated within one working day.

Competent national authorities may establish the global process of porting of numbers, taking into account national provisions on contracts and technical feasibility, including where necessary measures ensuring that subscribers are protected throughout the switching process.

Without prejudice to the first subparagraph, competent national authorities may establish the global process of porting of numbers, taking into account national provisions on contracts and the need to maintain continuity of service to the subscriber, including where necessary measures ensuring that subscribers are protected throughout the switching process and not switched against their will. National regulatory authorities shall be able to impose appropriate sanctions on undertakings, including an obligation to compensate subscribers in the case of delay in porting or abuse of porting by them or on their behalf.

5. Member States shall ensure that contracts concluded between users and undertakings providing electronic communications services do not mandate an initial commitment period that exceeds 24 months.

5. Member States shall ensure that contracts concluded between consumers and undertakings providing electronic communications services do not mandate an initial commitment period that exceeds 24 months. Member States shall also ensure that undertakings offer users the possibility to subscribe to a contract with a maximum duration of 12 months.

(Compromise amendment)

Amendment  62

Council common position – amending act

Article 1 – point 21 a (new)

Directive 2002/22/EC

Article 32 a (new)

 

Council common position

Amendment

 

21a) the following Article shall be inserted:

 

"Article 32a

 

Access to content, services and applications

 

Member States shall ensure that any restrictions on the rights of users to access content, services and applications, if such restrictions are necessary, are implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness. Those measures shall not have the effect of hindering the development of the information society, in compliance with Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)*, and shall not conflict with the fundamental rights of citizens, including the right to privacy and the right to due process."

Amendment  63

Council common position – amending act

Article 1 – point 22 – point (b a) (new)

Directive 2002/22/EC

Article 33 – paragraph 3 a (new)

 

Council common position

Amendment

 

(ba) the following paragraph shall be added:

 

"3a. Without prejudice to Directive 1999/5/EC, and in particular the disability requirements laid down in Article 3(3)(f) thereof, and in order to improve accessibility to electronic communications services and equipment by disabled end-users, the Commission may adopt the appropriate technical implementing measures, following a public consultation and after having consulted BERT. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 37(2)."

Amendment  64

Council common position – amending act

Article 1 – point 23

Directive 2002/22/EC

Article 34 – paragraph 1

 

Council common position

Amendment

1. Member States shall ensure that transparent, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes between consumers and undertakings providing electronic communications networks and/or services arising under this Directive and relating to the contractual conditions and/or performance of contracts concerning the supply of those networks and/or services. Member States shall adopt measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where warranted, adopt a system of reimbursement and/or compensation. Member States may extend these obligations to cover disputes involving other end-users.

1. Member States shall ensure that transparent, non-discriminatory, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes between consumers and undertakings providing electronic communications networks and/or services arising under this Directive and relating to the contractual conditions and/or performance of contracts concerning the supply of those networks and/or services. Member States shall adopt measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where warranted, adopt a system of reimbursement and/or compensation. Such procedures shall enable disputes to be settled impartially and shall not deprive the consumer of the legal protection afforded by national law. Member States may extend these obligations to cover disputes involving other end-users.

 

Member States shall ensure that the bodies in charge of such procedures, which can be single points of contact, provide relevant information for statistical purposes to the Commission and the competent national authorities.

 

With specific regard to the interaction of audiovisual and electronic communications, Member States shall encourage reliable out-of-court procedures.

Amendment  65

Council common position – amending act

Article 2 – point 1

Directive 2002/58/EC

Article 1 – paragraph 1

 

Council common position

Amendment

1. This Directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.

1. This Directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.

Amendment  66

Council common position – amending act

Article 2 – point 1 a (new)

Directive 2002/58/EC

Article 1 – paragraph 2

 

Council common position

Amendment

 

1a) Article 1(2) shall be replaced by the following:

 

"2. The provisions of this Directive particularise and complement Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons."

Amendment  67

Council common position – amending act

Article 2 – point 2 – point (c)

Directive 2002/58/EC

Article 2 – point (h)

 

Council common position

Amendment

(h) "personal data breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of a publicly available electronic communications service in the Community.

(h) "personal data breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to personal data transmitted, stored or otherwise processed in connection with the provision of a publicly available electronic communications service or information society service in the Community.

Amendment  68

Council common position – amending act

Article 2 – point 4 – point (a a) (new)

Directive 2002/58/EC

Article 4 – paragraph 1

 

Council common position

Amendment

 

(aa) paragraph 1 shall be replaced by the following:

 

"1. The provider of a publicly available electronic communications service or of an information society service must take appropriate technical and organisational measures to safeguard security of its services, if necessary in conjunction with the provider of the public communications network with respect to network security. Having regard to the state of the art and the cost of their implementation, these measures shall ensure a level of security appropriate to the risk presented."

Amendment  69

Council common position – amending act

Article 2 – point 4 - point (a b) (new)

Directive 2002/58/EC

Article 4 – paragraph 1 a (new)

 

Council common position

Amendment

 

(ab) the following paragraph shall be inserted:

 

"1a. Without prejudice to Directive 95/46/EC, the measures referred to in paragraph 1 shall at least:

 

ensure that personal data can be accessed only by authorised personnel for legally authorised purposes;

 

– protect personal data stored or transmitted against accidental or unlawful destruction, accidental loss or alteration, and unauthorised or unlawful storage, processing, access or disclosure; and

 

– implement a security policy with respect to the processing of personal data.

 

National regulatory authorities shall be able to audit the measures taken by providers of publicly available electronic communication services and information society services and to issue recommendations about best practices concerning the level of security which those measures should achieve."

Amendment  70

Council common position – amending act

Article 2 – point 4 – point (b)

Directive 2002/58/EC

Article 4 – paragraph 3

 

Council common position

Amendment

3. In the case of a personal data breach, the provider of publicly available electronic communications services shall assess the scope of the personal data breach, evaluate its seriousness and consider whether it is necessary to notify the personal data breach to the competent national authority and subscriber concerned, taking into account the relevant rules set by the competent national authority in accordance with paragraph 4.

3. In the case of a personal data breach, the provider of publicly available electronic communications services or information society services shall, without undue delay, notify the personal data breach to the competent national authority.

When the personal data breach represents a serious risk for the subscriber's privacy, the provider of publicly available electronic communications services shall notify the competent national authority and the subscriber of the breach without undue delay.

When the personal data breach is likely to adversely affect the personal data and privacy of a subscriber or an individual, the provider shall notify the subscriber or individual of the breach without undue delay.

 

If the provider has not already notified the subscriber or individual of a personal data breach, the competent national authority, having considered the likely adverse effects of the breach, may require it to do so.

The notification to the subscriber shall at least describe the nature of the personal data breach and the contact points where more information can be obtained, and shall recommend measures to mitigate the possible negative effects of the personal data breach. The notification to the competent national authority shall, in addition, describe the consequences of, and the measures proposed or taken by the provider to address, the personal data breach.

The notification to the subscriber or individual shall at least describe the nature of the personal data breach and the contact points where more information can be obtained, and it shall recommend measures to mitigate the possible adverse effects of the personal data breach. The notification to the competent national authority shall, in addition, describe the consequences of and the measures proposed or taken by the provider to address the personal data breach.

Amendment  71

Council common position – amending act

Article 2 – point 4 – point (b)

Directive 2002/58/EC

Article 4 – paragraph 4

 

Council common position

Amendment

4. Member States shall ensure that the competent national authority is able to set detailed rules and, where necessary, issue instructions concerning the circumstances in which notification of personal data breaches by providers of a publicly available electronic communications service is necessary, the format applicable to such notification and the manner in which the notification is to be made.

4. Subject to any technical implementing measures adopted pursuant to paragraph 5, the competent national authorities may adopt guidelines and, where necessary, issue instructions concerning the circumstances in which notification by providers of personal data breaches is required, the format of such notification and the manner in which the notification is to be made. They shall also monitor whether providers have complied with their notification obligations under this paragraph, and impose appropriate sanctions in the event of a failure to do so.

 

Providers shall maintain an inventory of personal data breaches, comprising the facts surrounding the breach, its effects and the remedial action taken, sufficient for the purpose of enabling the competent national authorities to verify compliance with the provisions of paragraph 3. The inventory shall include only the information necessary for this purpose.

(Compromise amendment)

Amendment  72

Council common position – amending act

Article 2 – point 4 – point (b)

Directive 2002/58/EC

Article 4 – paragraph 5

 

Council common position

Amendment

5. In order to ensure consistency in implementation of the measures referred to in paragraphs 1 to 4 the Commission may, following consultation with the European Network and Information Security Agency (ENISA), the Article 29 Working Party and the European Data Protection Supervisor, adopt recommendations concerning, inter alia, the circumstances, format and procedures applicable to the information and notification requirements referred to in this Article.

5. In order to ensure consistency in implementation of the measures referred to in paragraphs 2, 3 and 4, the Commission may, following consultation with the European Network and Information Security Agency (ENISA), the Article 29 Working Party and the European Data Protection Supervisor, adopt technical implementing measures concerning the circumstances, format and procedures applicable to the information and notification requirements referred to in this Article. The Commission shall involve all relevant stakeholders in order particularly to be informed of the best available technical and economic means of implementation of this Article.

 

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14a(2).

(Compromise amendment)

Amendment  73

Council common position – amending act

Article 2 – point 5

Directive 2002/58/EC

Article 5 – paragraph 3

 

Council common position

Amendment

3. Member States shall ensure that the storing of information, or access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user.

3. Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his/her prior consent, which may be given by way of using the appropriate settings of a browser or another application, after having been provided with clear and comprehensive information in accordance with Directive 95/46/EC, inter alia about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user.

Amendment  74

Council common position – amending act

Article 2 – point 6

Directive 2002/58/EC

Article 6 – paragraph 1

 

Council common position

Amendment

(a) paragraph 1 shall be replaced by the following:

deleted

"1. Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service shall be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication. This shall be without prejudice to paragraphs 2, 3, 5 and 7 of this Article and Article 15(1)."

 

(Compromise amendment. Deletion concerns cross reference to paragraph 7 added in the Council's Common Position. Current text of 6(1) maintained by Parliament.)

Amendment  75

Council common position – amending act

Article 2 – point 6

Directive 2002/58/EC

Article 6 – paragraph 7

 

Council common position

Amendment

(c) the following paragraph shall be added:

deleted

"7. Traffic data may be processed to the extent strictly necessary to ensure network and information security, as defined by Article 4(c) of Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency."

 

(Compromise amendment)

Amendment  76

Council common position – amending act

Article 2 – point 7

Directive 2002/58/EC

Article 13 – paragraph 1

 

Council common position

Amendment

1. The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail (including short message services (SMS) and multi media services (MMS)) for the purposes of direct marketing may be allowed only in respect of subscribers or users who have given their prior consent.

1. The use of automated calling and communication systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may be allowed only in respect of subscribers or users who have given their prior consent.

Amendment  77

Council common position – amending act

Article 2 – point 7

Directive 2002/58/EC

Article 13 – paragraph 4

 

Council common position

Amendment

4. In any event, the practice of sending electronic mail for the purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or in contravention of Article 6 of Directive 2000/31/EC, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.

4. In any event, the practice of sending electronic mail for purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or in contravention of Article 6 of Directive 2000/31/EC, or without a valid address to which the recipient may send a request that such communications cease, or of encouraging recipients to visit websites that contravene Article 6 of Directive 2000/31/EC, shall be prohibited.

Amendment  78

Council common position – amending act

Article 2 – point 7

Directive 2002/58/EC

Article 13 – paragraph 6

 

Council common position

Amendment

6. Without prejudice to any administrative remedy for which provision may be made, inter alia, under Article 15a(2), Member States shall ensure that any natural or legal person adversely affected by infringements of national provisions adopted pursuant to this Article and therefore having a legitimate interest in the cessation or prohibition of such infringements, including an electronic communications service provider protecting its legitimate business interests, may bring legal proceedings in respect of such infringements. Member States may also lay down specific rules on penalties applicable to providers of electronic communications services which by their negligence contribute to infringements of national provisions adopted pursuant to this Article.

6. Without prejudice to any administrative remedy for which provision may be made, inter alia, under Article 15a(2), Member States shall ensure that any natural or legal person having a legitimate interest in combating infringements of national provisions adopted pursuant to this Directive, including an electronic communications service provider protecting its legitimate business interests or the interests of its customers, may bring legal proceedings in respect of such infringements. Member States may also lay down specific rules on penalties applicable to providers of electronic communications services which by their negligence contribute to infringements of national provisions adopted pursuant to this Article.

Amendment  79

Council common position – amending act

Article 2 – point 7 a (new)

Directive 2002/58/EC

Article 14 a (new)

 

Council common position

Amendment

 

7a) the following Article shall be inserted:

 

"Article 14a

 

Committee procedure

 

1. The Commission shall be assisted by the Communications Committee set up by Article 22 of Directive 2002/21/EC (Framework Directive).

 

2. Where reference is made to this paragraph, Article 5 a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

 

3. Where reference is made to this paragraph, Article 5 a(1), (2), (4) and (6) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof."

(Compromise amendment)

Amendement  80

Council common position – amending act

Article 2 – point 7 b (new)

Directive 2002/58/EC

Article 15 – paragraph 1 b (new)

 

Council common position

Amendement

 

7b) in Article 15, the following paragraph shall be inserted:

 

"1b. Providers shall establish internal procedures for responding to requests for access to users' personal data based on national provisions adopted pursuant to paragraph 1. They shall provide the competent national authority, on demand, with information on those procedures, the number of requests received, the legal justification invoked and the response by the provider."

Amendment  81

Council common position – amending act

Article 2 – point 8

Directive 2002/58/EC

Article 15a - paragraph 1

 

Council common position

Amendment

1. Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive and may be applied to cover the period of any breach, even where the breach has subsequently been rectified. The Member States shall notify those provisions to the Commission by ...*and shall notify it without delay of any subsequent amendment affecting them.

1. Member States shall lay down the rules on penalties, including sanctions where appropriate, applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive and may be applied to cover the period of any breach, even where the breach has subsequently been rectified. The Member States shall notify those provisions to the Commission by ...* and shall notify it without delay of any subsequent amendment affecting them.

Amendment  82

Council common position – amending act

Article 2 – point 8

Directive 2002/58/EC

Article 15a – paragraph 2

 

Council common position

Amendment

2. Member States shall ensure that the competent national authority and, where relevant, other national bodies have the power to order the cessation of the infringements referred to in paragraph 1.

2. Without prejudice to any judicial remedy which might be available, Member States shall ensure that the competent national authority and, where relevant, other national bodies have the power to order the cessation of the infringements referred to in paragraph 1.

(Compromise amendment)

Amendment  83

Council common position – amending act

Article 2 – point 8

Directive 2002/58/EC

Article 15a – paragraph 3

 

Council common position

Amendment

3. Member States shall ensure that the competent national authority and, where relevant, other national bodies have all necessary investigative powers and resources, including the power to obtain any relevant information they might need to monitor and enforce national provisions adopted pursuant to this Directive.

3. Member States shall ensure that national regulatory authorities and, where relevant, other national bodies have the necessary investigative powers and resources, including the power to obtain any relevant information they might need to monitor and enforce national provisions adopted pursuant to this Directive.

(Compromise amendment)

Amendment  84

Council common position – amending act

Article 2 – point 8

Directive 2002/58/EC

Article 15a – paragraph 4

 

Council common position

Amendment

4. In order to ensure effective cross-border cooperation in the enforcement of the national laws adopted pursuant to this Directive and to create harmonised conditions for the provision of services involving cross-border data flows, the Commission may adopt recommendations, following consultation with ENISA, the Article 29 Working Party and the relevant regulatory authorities.

4. In order to ensure effective cross-border co-operation in the enforcement of the national laws adopted pursuant to this Directive and to create harmonised conditions for the provision of services involving cross-border data flows, the Commission may adopt technical implementing measures, following consultation with ENISA, the Article 29 Working Party and the relevant regulatory authorities.

 

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14a(2). On imperative grounds of urgency, the Commission may have recourse to the urgency procedure referred to in Article 14a(3).

Amendment  85

Council common position – amending act

Article 2 – point 8 a (new)

Directive 2002/58/EC

Article 18

 

Council common position

Amendment

 

8a) Article 18 shall be replaced by the following:

 

"Article 18

 

Review

 

The Commission shall, having consulted the Working Party on the Protection of Individuals with regard to the Processing of Personal Data established by Article 29 of Directive 95/46/EC and the European Data Protection Supervisor, submit to the European Parliament and the Council, not later than ...*, a report on the application of this Directive and its impact on economic operators and consumers, in particular as regards the provisions on unsolicited communications and breach notifications, taking into account the international environment. For this purpose, the Commission may request information from the Member States, which shall be supplied without undue delay. Where appropriate, the Commission shall submit proposals to amend this Directive, taking account of the results of that report, any changes in the sector, and any other proposal it may deem necessary in order to improve the effectiveness of this Directive.

 

* 3 years from the date referred to in the first subparagraph of Article 4(1)."

Amendment  86

Council common position – amending act

Article 4 – paragraph 1 – subparagraph 1

Council common position

Amendment

1. Member States shall adopt and publish by * the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those measures.

1. Member States shall adopt and publish by ...* the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the European Parliament and the Commission the text of those measures and a correlation table between them and this Directive.

Amendment  87

Council common position – amending act

Annex I

Directive 2002/22/EC

Annex I – Part A – point (a) – introductory wording

 

Council common position

Amendment

Member States are to ensure that national regulatory authorities, subject to the requirements of relevant legislation on the protection of personal data and privacy, may lay down the basic level of itemised bills which are to be provided by designated undertakings (as established in Article 8) to consumers free of charge in order that they can:

Member States are to ensure that national regulatory authorities, subject to the requirements of relevant legislation on the protection of personal data and privacy, may lay down the basic level of itemised bills which are to be provided by designated undertakings (as established in Article 8) to end-users free of charge in order that they can:

Amendment  88

Council common position – amending act

Annex I

Directive 2002/22/EC

Annex I – Part A – point (b)

 

Council common position

Amendment

i.e. the facility whereby the subscriber can, on request to a designated undertaking that provides telephone services, bar outgoing calls or premium SMS or MMS of defined types or to defined types of numbers free of charge.

i.e. the facility whereby the subscriber can, on request to a designated undertaking that provides telephone services, bar outgoing calls or other kinds of communication of defined types or to defined types of numbers free of charge.

Amendment  89

Council common position – amending act

Annex I

Directive 2002/22/EC

Annex I – Part A – point (e)

 

Council common position

Amendment

Member States are to authorise specified measures, which are to be proportionate, non-discriminatory and published, to cover non-payment of telephone bills issued by undertakings designated in accordance with Article 8. These measures are to ensure that due warning of any consequent service interruption or disconnection is given to the subscriber beforehand. Except in cases of fraud, persistent late payment or non-payment, these measures are to ensure, as far as is technically feasible that any service interruption is confined to the service concerned. Disconnection for non-payment of bills should take place only after due warning is given to the subscriber. Member States may allow a period of limited service prior to complete disconnection, during which only calls that do not incur a charge to the subscriber (e.g. "112" calls) are permitted.

Member States are to authorise specified measures, which are to be proportionate, non-discriminatory and published, to cover non-payment of bills issued by operators designated in accordance with Article 8. These measures are to ensure that due warning of any consequent service interruption or disconnection is given to the subscriber beforehand. Except in cases of fraud, persistent late payment or non-payment, these measures are to ensure, as far as is technically feasible, that any service interruption is confined to the service concerned. Disconnection for non-payment of bills should take place only after due warning is given to the subscriber. Member States may allow a period of limited service prior to complete disconnection, during which only services that do not incur a charge to the subscriber (e.g. “112” calls) are permitted. Access to emergency services through 112 may be blocked in the event of repeated misuse by the user.

Amendment  90

Council common position – amending act

Annex I

Directive 2002/22/EC

Annex I – Part A – point (e a) (new)

 

Council common position

Amendment

 

(ea) Cost control

 

Member States are to ensure that national regulatory authorities require all undertakings providing electronic communication services to offer means for subscribers to control the costs of telecommunication services, including free-of-charge alerts to consumers in case of abnormal consumption patterns.

Amendement  91

Council common position – amending act

Annex I

Directive 2002/22/EC

Annex I – Part A – point (e b) (new)

 

Council common position

Amendement

 

(eb) Best advice

 

i.e. the facility whereby an undertaking may once a year communicate to those subscribers who have requested it and who have consented to the undertaking retaining the data necessary to provide the facility alternative lower-cost tariffs, if available, on the basis of usage patterns for the previous six months.

(Compromise amendment)

Amendment  92

Council common position – amending act

Annex I

Directive 2002/22/EC

Annex I – Part B – point (b a) (new)

 

Council common position

Amendment

 

(ba) Services in the event of theft

 

Member States are to ensure that a freephone number common to all mobile telephony service providers is set up for reporting the theft of a terminal and immediately suspending the services associated with the subscription. It must also be possible for disabled users to access this service. Users must be regularly informed of the existence of this number, which must be easy to remember.

Amendment  93

Council common position – amending act

Annex I

Directive 2002/22/EC

Annex I – Part B – point (b b) (new)

 

Council common position

Amendment

 

(bb) Protection software

 

Member States are to ensure that national regulatory authorities are able to require operators to make available free of charge to their subscribers reliable, easy-to-use and freely and fully configurable protection and/or filtering software to prevent access by children or vulnerable persons to content unsuitable for them.

 

Any traffic monitoring data that this software may collect is for the use of the subscriber only.

(1)

Texts adopted, 24.9.2008, P6_TA(2008)0452.


PROCEDURE

Title

Electronic communications networks and services, protection of privacy and consumer protection

References

16497/1/2008 – C6-0068/2009 – 2007/0248(COD)

Date of Parliament’s first reading – P number

24.9.2008                     T6-0452/2008

Commission proposal

COM(2007)0698 - C6-0420/2007

Amended Commission proposal

COM(2008)0723

Date receipt of common position announced in plenary

19.2.2009

Committee responsible

       Date announced in plenary

IMCO

19.2.2009

Rapporteur(s)

       Date appointed

Malcolm Harbour

22.1.2008

 

 

Discussed in committee

2.3.2009

9.3.2009

30.3.2009

 

Date adopted

31.3.2009

 

 

 

Result of final vote

+:

–:

0:

24

1

2

Members present for the final vote

Cristian Silviu Buşoi, Mogens Camre, Charlotte Cederschiöld, Gabriela Creţu, Janelly Fourtou, Evelyne Gebhardt, Martí Grau i Segú, Ioan Lucian Hămbăşan, Malcolm Harbour, Pierre Jonckheer, Eija-Riitta Korhola, Alexander Graf Lambsdorff, Toine Manders, Arlene McCarthy, Nickolay Mladenov, Catherine Neris, Zita Pleštinská, Zuzana Roithová, Heide Rühle, Leopold Józef Rutowicz, Salvador Domingo Sanz Palacio, Andreas Schwab, Eva-Britt Svensson, Jacques Toubon, Barbara Weiler

Substitute(s) present for the final vote

Emmanouil Angelakas, Wolfgang Bulfon

Date tabled

7.4.2009

Last updated: 23 April 2009Legal notice