14 Amendments of Massimiliano SALINI related to 2023/0046(COD)
Amendment 92 #
Proposal for a regulation
Recital 12
Recital 12
(12) To ensure legal certainty, including regarding specific regulatory measures imposed under Directive (EU) 2018/1972, under Title II, Chapters II to IV and Directive 2002/77/EC36 , the provisions of these directives and their national implementations should prevail over this Regulation. _________________ 36 Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ L 249, 17.9.2002, p. 21).
Amendment 95 #
Proposal for a regulation
Recital 14
Recital 14
(14) To improve the deployment of very high capacity networks in the internal market, this Regulation should lay down rights for undertakings providing public electronic communications networks or associated facilities (including undertakings of a public nature) to access physical infrastructure regardless of its location under fair and reasonable terms consistent with the normal exercise of property rights. It's also essential to guarantee that the access providers benefit from a fair return on investment that takes into account the specific market conditions and, in particular, the different kinds of business models of the providers of associated facilities. As a result, when they operate under a wholesale only model that only provides passive access to multiple host public electronic communications operators under comparable circumstances, providers of associated facilities may assume that the access price they are offering is fair and reasonable. The price should not be required to adhere to fair and reasonable terms when access is provided through a contract reached before the date of entry into force of this Regulation and the price has already been negotiated and agreed upon, or included in the contract. The obligation to give access to the physical infrastructure should be without prejudice to the rights of the owner of the land or of the building in which the infrastructure is located.
Amendment 98 #
Proposal for a regulation
Recital 15
Recital 15
(15) In particular, taking into account the fast development of providers of wireless physical infrastructure such as ‘tower companies’, and their increasingly significant role as providers of access to physical infrastructure suitable to install elements of wireless electronic communications networks, such as 5G, the definition of ‘network operator’ should be extended beyond undertakings providing or authorised to provide electronic communications networks and operators of other types of networks, such as transport, gas or electricity, to include undertakings providing associated facilities, which thus become subject to all the obligations and benefits set out in the Regulation, except the provisions regarding in-building physical infrastructure and access. Landowners, on which associated facilities have been or will be installed, should be required to negotiate land access with companies providing, or authorised to provide, these associated facilities on fair and reasonable terms and conditions, including price, in conformity with national contract law, to ensure continuity of service and predictability for scheduled installations of associated facilities.
Amendment 102 #
(15a) According to the basic principle of the market economy, regulatory intervention is only necessary in the event of a market failure. Since the emergence of providers of wireless physical infrastructure such as ‘tower companies’, and their uptake of their increasingly significant role as providers of access to physical infrastructure suitable to install elements of wireless electronic communications networks, such as 5G, no significant phenomena occurred that would indicate a market failure. Their business model, the fees they charge for the provision of their infrastructure and their pricing models have not been subject to any regulation so far. Therefore, the Commission, supported by BEREC and the national regulators, should conduct a market analysis to determine whether there is a market failure in relation to providers of wireless physical infrastructure such as ‘tower companies’ . Should this be the case, the Commission shall, by means of a delegated act, subject the providers of wireless physical infrastructure such as ‘tower companies’ to all the obligations and benefits set out in the Regulation, except the provisions regarding in-building physical infrastructure and access. Until then, their business model should remain unregulated.
Amendment 112 #
Proposal for a regulation
Recital 20
Recital 20
(20) To ensure proportionality and preserve investment incentives, a network operator or public sector body should have the right to refuse access to specific physical infrastructure for objective and justified reasons. In particular, a physical infrastructure for which access has been requested could be technically unsuitable due to specific circumstances, or because of lack of currently available space or future needs for space that are sufficiently demonstrated, for instance, in publicly available investment plans. To ensure proportionality and preserve investment incentives, a network operator or public sector body may refuse access to specific physical infrastructure. To avoid any potential distortion of competition or any possible abuse of the conditions to refuse access, any such refusal should be duly justified and based on objective and detailed reasons. For example such reasons would not be considered objective where an undertaking providing or authorised to provide electronic communications networks has deployed physical infrastructure thanks to civil works coordination with a network operator other than an electronic communications network operator and refuses to grant access based on an alleged lack of availability of space to host the elements of very high capacity networks which results from decisions made by the undertaking under its control. In such case, a competition distortion could arise if there is no other VHCN in the area concerned by the access request. Similarly, in specific circumstances, sharing the infrastructure could jeopardise safety or public health, network integrity and security, including that of critical infrastructure, or could endanger the provision of services that are primarily provided over the same infrastructure. Moreover, where the network operator already provides a viable alternative means of wholesale physical access to electronic communications networks that would meet the needs of the access seeker, such as dark fibre or fibre unbundling, access to the underlying physical infrastructure could have an adverse economic impact on its business model, in particular that of wholesale-only operators, and incentives to invest. It may also risk an inefficient duplication of network elements. The assessment of the fair and reasonable character of the terms and conditions for such alternative means of wholesale physical access should take into account, inter alia, the underlying business model of the undertaking providing or authorised to provide public electronic communications networks granting access and the need to avoid any reinforcement of the significant market power, if any, of either party, and the necessity for a fair return on investment, matching market conditions and business model, for associated facility providers.
Amendment 122 #
(24) To ensure consistency of approaches among Member States, the Commission, in close cooperation with the Body of European Regulators for Electronic Communications (BEREC), could provide guidance on applying the provisions on access to physical infrastructure, including but not only on the application of fair and reasonable conditions. The views of stakeholders and national dispute settlement bodies should be duly taken into account in the preparation of the guidance. In setting the criteria for a fair and reasonable price, the Commission should take into account the characteristics of network operators and their business model, such as tower companies or wholesale-only operators, especially when leasing infrastructure to third parties, in order to avoid market disruptions and negative effects on investment.
Amendment 140 #
Proposal for a regulation
Recital 39
Recital 39
(39) Permit-granting procedures should not be barriers to investment or harm the internal market. Member States should therefore ensure that a decision on whether or not to grant permits on the deployment of elements of very high capacity networks or associated facilities is made available within 4 months from the receipt of a complete permit requestthe deadlines set in their national laws. This is without prejudice to other specific deadlines or obligations laid down for the proper conduct of the procedure, which are applicable to the permit-granting procedure in accordance with national or Union law. Competent authorities should not restrict, hinder or make the deployment of very high capacity networks or associated facilities economically less attractive. Specifically, they should not prevent procedures for granting permits and rights of way from proceeding in parallel, where possible, or require operators to obtain one type of authorisation before they can apply for other types of authorisations. Competent authorities should justify any refusal to grant permits or rights of way under their competence, based on objective, transparent, non-discriminatory and proportionate conditions. Whenever a competent authority doesn't respond within the deadlines set for the granting procedure, it should inform the applicant about the delay and its reasons on its own motion. Member States should introduce incentives in their national legislation for competent authorities to grant permits faster than required by law.
Amendment 153 #
Proposal for a regulation
Recital 41
Recital 41
(41) In order to ensure uniform conditions for the implementation of Article 7 of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council39 . The exemptions from the requirement for permits set out at Union level by way of an implementing act,The Commission should after consulting relevant stakeholders, identify categories of deployment of elements of very high capacity networks or associated facilities that Member States should consider to exempt from any permit- granting procedure. The exemptions from the requirement for permits could be applied to different categories of infrastructure (such as masts, antennae, poles and underground cables) under certain specified conditions, for which building permits, digging permits or other types of permits may be initially required. They could also be applied to technical upgrades of existing maintenance works or installations, small- scale civil works, such as trenching, and renewals of permits. _________________ 39 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
Amendment 206 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Upon written request of an operator, public sector bodies owning or controlling physical infrastructure or network operators shall meet all reasonable requests for access to that physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of very high capacity networks or associated facilities. Operators shall state the components of the physical infrastructure for which they require access in such written requests, along with a deadline. Where a fair and reasonable price has already been negotiated, agreed in a contract or agreed as part of automatic contract renewals, organisations providing or authorised to provide access to associated facilities, that can demonstrate that they have a contract with an operator providing or authorised to provide a public electronic communications network, are not required to offer access at that price. Public sector bodies owning or controlling physical infrastructure shall meet all reasonable requests for access also under non-discriminatory terms and conditions. Such written requests shall specify the elements of the physical infrastructure for which the access is requested, including a specific time frame.
Amendment 219 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1a. Owners of land on which associated facilities for the development of ultra-high-capacity network elements have been or will be installed are obliged to negotiate access to the land, on fair and reasonable terms, including price and in accordance with national contract law, with undertakings providing or authorised to provide such associated facilities.
Amendment 227 #
Proposal for a regulation
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(a) the need to ensure that the access provider has a fair opportunity to recover the costs it incurs in order to provide access to its physical infrastructure, taking into account specific national conditions, different business models and any tariff structures put in place to provide a fair opportunity for cost recovery; in the case of electronic communications networks, any remedies imposed by a national regulatory authority shall also be taken into account.
Amendment 229 #
Proposal for a regulation
Article 3 – paragraph 2 – point b
Article 3 – paragraph 2 – point b
(b) the impact of the requested access on the access provider’s business plan, including investments in the physical infrastructure to which the access has been requested;, and the need to guarantee the access provider a fair return on investment, reflecting the specific market conditions and, in particular in the case of associated facilities providers, their different business models; access price offered by associated facilities providers can be considered fair and reasonable whenever they operate as a wholesale only model offering only passive access to more than one public electronic communications host operator on comparable terms.
Amendment 322 #
Proposal for a regulation
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Any operator shall have the right to submit, via a single information point in electronic format, applications for permits or rights of way and to retrieve information applications for permits or rights of way in electronic format. Permit granting authorities shall upon request inform applicants about the status of itstheir application without unnecessary delay.
Amendment 450 #
Proposal for a regulation
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1a. The Commission, supported by BEREC and the national regulators, shall carry out a market analysis to determine whether phenomena have occurred in the Member States that indicate a market failure with regard to the pricing of tower companies. By [DATE OF ENTRY INTO FORCE + TWO YEARS] and every two years thereafter, the commission shall present the result of the market analysis to the European Parliament and the Council. The report shall include the number of cases phenomena occurred per Member State, a description of the nature of the phenomena that indicate a market failure and conclusions, whether or not a market failure has occurred. If the report comes to the conclusion a market failure occurred, the Commission shall adopt a delegated act in accordance with Article 3(1a) and Article 15a.