29 Amendments of Seán KELLY 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 101 #
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 inshall also fall under the scope of theis Regulation, except the provisions regarding in-building physical infrastructure and access.
Amendment 105 #
Proposal for a regulation
Recital 17
Recital 17
(17) In the absence of a justified exception, physical infrastructure elements owned or controlled by public sector bodies, even when they are not part of a network, can also host electronic communications network elements and should be made accessible to facilitate installing network elements of very high capacity networks, in particular wireless networks. Examples of physical infrastructure elements are buildings, including rooftops, entries to buildings, and any other asset, including street furniture, such as light poles, street signs, traffic lights, billboards, bus and tramway stops and metro stations. It is for Member States to identify specific buildings owned or controlled by public sector bodies in their territories where access obligations cannot apply, for example, for reasons of architectural, historical, religious or natural value.
Amendment 111 #
Proposal for a regulation
Recital 20
Recital 20
(20) To ensure proportionality and, preserve investment incentives, especially for VHCN pioneers, and thus create an incentive for the rapid rollout of VHCNs to rural areas, 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 thea 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, or to parallel physical infrastructure, could have an adverse economic impact on its business model, in particular that of wholesale-only operators, and on incentives to invest. It may also risk an inefficient duplication of network elements, which in particular shall be avoided until sufficient coverage of rural areas with VHCNs is achieved. 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.
Amendment 125 #
Proposal for a regulation
Recital 25
Recital 25
(25) Operators should have access to minimum information on physical infrastructure and planned civil works in the area of deployment. This will enable them to effectively plan deploying very high capacity networks and ensure the most effective use of existing physical infrastructure, suitable for rolling out such networks, and planned civil works. Such minimum information is a pre-requisite to assess the potential for using existing physical infrastructure or coordinating the planned civil works in a specific area, as well as to reduce damage to any existing physical infrastructures. In view of the number of stakeholders involved (covering publicly and privately financed civil works as well as existing or planned physical infrastructure) and to facilitate access to that information (across sectors and borders), the network operators and public sector bodies subject to transparency obligations should, where feasible, proactively (rather than upon request) provide and maintain such minimum information via a single information point. This will simplify managing requests to access such information and enable operators to express their interest in accessing physical infrastructure or coordinating civil works, for which timing is critical. The minimum information on planned civil works should be provided via a single information point as soon as the information is available to the network operator concerned and, in any event and where permits are required, no later than 3 months before the permit application is first submitted to the competent authorities.
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 172 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. If any provision of this Regulation conflicts with a provision of Directive (EU) 2018/1972 or, Directive 2002/77/EC, Directive (EU) 2022/2555 or Regulation (EU) XXXX/XXXX [Cyber Resilience Act], the relevant provision of those Directivespieces of legislation shall prevail.
Amendment 183 #
Proposal for a regulation
Article 2 – paragraph 2 – point 1 – point b – point ii
Article 2 – paragraph 2 – point 1 – point b – point ii
(ii) transport services, including railways, roads, tunnels, ports and airports;
Amendment 205 #
Proposal for a regulation
Article 2 – paragraph 2 – point 11 a (new)
Article 2 – paragraph 2 – point 11 a (new)
(11a) 'rights of way' means rights granted in accordance with Art 43 of the Directive (EU) 2018/1972;
Amendment 236 #
Proposal for a regulation
Article 3 – paragraph 2 – point c a (new)
Article 3 – paragraph 2 – point c a (new)
(ca) the costs to the public sector body of maintaining the infrastructure, the additional operational costs as a result of providing access to the infrastructure;
Amendment 250 #
Proposal for a regulation
Article 3 – paragraph 3 – subparagraph 1 – point f a (new)
Article 3 – paragraph 3 – subparagraph 1 – point f a (new)
(fa) the availability of open, non- discriminating access to electronic communications networks of wholesale only operators owned or controlled by public sector bodies suitable for the provision of very high capacity networks covering the area of the infrastructure access was requested to.
Amendment 269 #
Proposal for a regulation
Article 4 – paragraph 1 – subparagraph 1 – point a
Article 4 – paragraph 1 – subparagraph 1 – point a
(a) georeferenced location and route;
Amendment 273 #
Proposal for a regulation
Article 4 – paragraph 2
Article 4 – paragraph 2
2. In cases, where Network operators and public sector bodies shall make availablepossess the minimum information referred to in paragraph 1, via the single information point and in electronic forma in electronic format, and in cases referred to in paragraph 1 point a) in georeferenced and electronic format, they shall make it available via the single information point, by [DATE OF ENTRY INTO FORCE + 12 MONTHS]. Under the same conditions, network operators and public sector bodies shall make available promptly any update to that information and any new minimum information referred to in paragraph 1.
Amendment 276 #
Proposal for a regulation
Article 4 – paragraph 2 – subparagraph 1 (new)
Article 4 – paragraph 2 – subparagraph 1 (new)
In cases where the minimum information referred to in paragraph 1 was not yet made available via the single information point in electronic format, Network operators and public sector bodies shall make it available via the single information point in electronic format upon request no later than 15 days after the request for information is submitted. Under the same conditions, network operators and public sector bodies shall make available promptly any update to that information and any new minimum information referred to in paragraph 1. Member States shall set up a deadline until which Network operators and public sector bodies shall make available the minimum information referred to in paragraph 1 via the single information point in electronic format.
Amendment 297 #
Proposal for a regulation
Article 5 – paragraph 3 – subparagraph 1 a (new)
Article 5 – paragraph 3 – subparagraph 1 a (new)
A request to coordinate civil works made by an undertaking providing or authorised to provide public electronic communications networks to an undertaking owned or controlled by public sector bodies and providing or authorised to provide public electronic communications networks may be deemed unreasonable in cases where the civil works contribute to the deployment of an open access very high capacity network, to which access will be granted on wholesale level.
Amendment 299 #
Proposal for a regulation
Article 5 – paragraph 3 – subparagraph 2
Article 5 – paragraph 3 – subparagraph 2
If a request to coordinate is considered unreasonable on the basis of the first or second paragraph, the undertaking providing or authorised to provide public electronic communications networks refusing the coordination of civil works shall deploy physical infrastructure with sufficient capacity to accommodate possible future reasonable needs for third- party access.
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 328 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. The competent authorities shall, within 15 working days from its receiptout unnecessary delay, reject applications for permits, including for rights of way, for which the minimum information has not been made available via a singlethe dedicated information point, pursuant to Article 6(1) first subparagraph, by the same operator which applies for that permit., if this operator has an obligation to allow coordination for those civil works pursuant to Article 5 second paragraph;
Amendment 332 #
Proposal for a regulation
Article 7 – paragraph 5 – subparagraph 1
Article 7 – paragraph 5 – subparagraph 1
The competent authorities shall grant or refuse permits, other than rights of way, within 4 months from the date ofout unnecessary delay following the receipt of a complete permit application in accordance with national law.
Amendment 339 #
Proposal for a regulation
Article 7 – paragraph 5 – subparagraph 2
Article 7 – paragraph 5 – subparagraph 2
The completeness of the application for permits or rights of way shall be determined by the competent authorities within 15 days from the receipt of the application. Unless the competent authorities invited the applicant to provide any missing information within that period, the application shall be deemed completeout unnecessary delay and in accordance with national law.
Amendment 345 #
Proposal for a regulation
Article 7 – paragraph 5 – subparagraph 4
Article 7 – paragraph 5 – subparagraph 4
Amendment 357 #
Proposal for a regulation
Article 7 – paragraph 6
Article 7 – paragraph 6
6. By way of derogation from Article 43(1), point (a) of Directive (EU) 2018/1972, where rights of way over or under public or private property are required for the deployment of elements of very high capacity networks or associated facilities in addition to permits, competent authorities shall grant such rights of way within the 4 month period from the date ofout necessary delay following the receipt of the application.
Amendment 362 #
Proposal for a regulation
Article 7 – paragraph 7
Article 7 – paragraph 7
7. In the absence of a response from the competent authority within the 4- month deadline referred to in paragraphs 5 first subparagraph, and unless such deadline is extended pursuant to paragraph 5 fourth subparagraph, the permit shall be deemed to have been granted. This shall also apply in the case of rights of way referred to in paragraph 6deadlines of administrative procedures laid down on national level the competent authority shall justify the delay to the applicant on its own motion. This article shall be without prejudice to the possibility of Member States to introduce further incentives for competent authorities to speed up the permit granting procedure.
Amendment 370 #
Proposal for a regulation
Article 7 – paragraph 8
Article 7 – paragraph 8
8. The Commission shall, by means of an implementing act, spec after consulting relevant stakeholders, identify categories of deployment of elements of very high capacity networks or associated facilities that shall not be subject toMember States shall consider to exempt from any permit- granting procedure within the meaning of this Article. This implementing act shall be adopted in accordance with the examination procedure referred to in Article 13.
Amendment 441 #
Proposal for a regulation
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2a. Article 8 first paragraph of Directive (EU) 2018/1972 shall be applied mutatis mutandis to national dispute settlement bodies.
Amendment 442 #
Proposal for a regulation
Article 12 – paragraph 6
Article 12 – paragraph 6
6. Paragraphs 2 and 2a shall apply mutatis mutandis to the competent bodies performing the functions of a single information point.
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.
Amendment 452 #
Proposal for a regulation
Article 15 a (new)
Article 15 a (new)
Article 15a Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The power to adopt delegated acts referred to in Article 3(1a), shall be conferred on the Commission for a period of five years from [DATE THE REGULATION COMES IN EFFECT]. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. 3. The delegation of power referred to in Article 3(1a) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 6. A delegated act adopted pursuant to Article 3(1a) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.
Amendment 454 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
National measures that specify the categories of deployment of elements of very high capacity networks or associated facilities not being subject to any permit- granting procedure within the meaning of Article 7, and that were adopted by the Member States pursuant to Directive 2014/61/EU or before its entry into force but in line with it shall continue to apply until the implementing act prorevidsed for in Article 7(8) of this Regulation enters into applicationby the Member States.