39 Amendments of Marietje SCHAAKE related to 2016/0288(COD)
Amendment 185 #
Proposal for a directive
Recital 28
Recital 28
(28) The aim is progressively to reduce ex ante sector-specific rules as competition in the markets develops and, ultimately, for electronic communications to be governed by competition law only. Considering that the markets for electronic communications have shown strong competitive dynamics in recent years, it is essential that ex ante regulatory obligations only be imposed where there is no effective and sustainable long-term competition on the retail markets concernedlevant markets concerned. However, the markets for electronic communications in Europe being still largely composed of vertically integrated operators which can leverage their dominance in the wholesale market to thereafter increase their dominance in the retail markets, long term competition at the retail level should be ensured by the removal of existing barriers to entry at the infrastructure level.
Amendment 186 #
Proposal for a directive
Recital 33
Recital 33
(33) In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory authority and other competent authorities, including from respective governments, with a view to ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in Article 295 of the Treaty. National regulatory and other competent authorities should be in possession of all the necessary resources, in terms of staffing, expertise, and financial means, for the performance of their tasks.
Amendment 201 #
Proposal for a directive
Recital 60
Recital 60
(60) Electronic communications broadband networks are becoming increasingly diverse in terms of technology, topology, medium used and ownership, therefore, regulatory intervention must rely on detailed information and forecasts regarding network roll-out in order to be effective and to target the areas where it is needed. That information should include plans regarding both deployment of very high capacity networks, as well as significant upgrades or extensions of existing copper or other networks which might not match the performance characteristics of very high capacity networks in all respects, such as roll-out of fibre to the cabinet coupled with active technologies like vectoring. The level of detail and territorial granularity of the information that national regulatory authorities should gather should be guided by the specific regulatory objective, and should be adequate for the regulatory purposes that it serves. Therefore, the size of the territorial unit will also vary between Member States, depending on the regulatory needs in the specific national circumstances, and on the availability of local data. Level 3 in the Nomenclature of Territorial Units for Statistics (NUTS) is unlikely to be a sufficiently small territorial unit in most circumstances. National regulatory authorities should be guided by BEREC guidelines on best practice to approach such a task, and such guidelines will be able to rely on the existing experience of national regulatory authorities in conducting geographical surveys of networks roll-out. National regulatory authoritiesWithout prejudice to confidentiality requirements and protection of business secrets, National regulatory authorities should make available in an open data format and without restrictions to reuse such surveys and should make available tools to end- users as regards quality of service to contribute towards the improvement of their awareness of the available connectivity services.
Amendment 214 #
Proposal for a directive
Recital 91 a (new)
Recital 91 a (new)
(91 a) In order to ensure a safeguard to the security and integrity of networks and services, the use of end-to-end encryption should be promoted and, where necessary, be mandatory in accordance with the principles of data protection by design and privacy by design; in particular, Member States should not impose any obligation to encryption providers, providers of electronic communications services and all other organisations (at all levels of the supply chain) that would result in the weakening of the security of their networks and services, such as the allowing or facilitation of "backdoors";
Amendment 225 #
Proposal for a directive
Recital 119
Recital 119
(119) Member States should only impose, prior to the granting of right, the verification of elements that can reasonably be demonstrated by an applicant exercising ordinary care, taking due account of the important public and market value of radio spectrum as a scarce public resource. This is without prejudice to the possibility for subsequent verification of the fulfilment of eligibility criteria, for example through milestones, where criteria could not reasonably be met initially. To preserve effective and efficient use of radio spectrum, Member States should not grant rights where their review indicates applicants' inability to comply with the conditions, without prejudice to the possibility of facilitating time-limited experimental use. Sufficiently long maximum duration of authorisations for the use of spectrum should increase investment predictability to contribute to faster network roll-out and better services, as well as stability to support spectrum trading and leasing, subject to regular reviews to assess whether market development and technological innovation allow for a more efficient use of spectrum. Unless use of spectrum is authorised for an unlimited period of time, such duration should both take account of the objectives pursued and be sufficient to facilitate recoupment of the investments made. While a longer duration can ensure investment predictability, measures to ensure effective and efficient use of radio spectrum, such as the power of the competent authority to amend or withdraw the right in case of non- compliance with the conditions attached to the rights of use, or the facilitation of radio spectrum tradability and leasing, will serve to prevent inappropriate accumulation of radio spectrum and support greater flexibility in distributing spectrum resources. Greater recourse to annualised fees is also a means to ensure a continuous assessment of the use of the spectrum by the holder of the right.
Amendment 235 #
Proposal for a directive
Recital 139
Recital 139
(139) In situations where undertakings are deprived of access to viable alternatives to non-replicable assets up to the first distribution point, national regulatory authorities should be empowered to impose access obligations to all operators, without prejudice to their respective market power. In this regard, national regulatory authorities should take into consideration all technical and economic barriers to future replication of networks. However as such obligations can be intrusive, undermine incentives for investments, and have the counterproductive effect of strengthening the position of dominant players, they should only be taken where this is justified and proportionate to achieve long term sustainable competition in the relevant markets. The mere fact that more than one such infrastructure already exists should not necessarily be interpreted as showing that its assets are replicable. The first distribution point should be identified by reference to objective criteria.
Amendment 250 #
Proposal for a directive
Recital 147
Recital 147
(147) Two or more undertakings can be found to enjoy a joint dominant position not only where there exist structural or other links between them but also where the structure of the relevant market is conducive to coordinated effects, that is, it encourages parallel or aligned anti- competitive behaviour on the market. In light of the increased convergence and consolidation in electronic communications markets, including in some cases content-related markets, with increasing markets being composed of oligopolies or duopolies, that could lead to the ineffectiveness of the current SMP framework, there is a need to consider whether two or more undertakings can also be found to have a position equivalent to having significant market power where they might significantly impede effective competition. The assessment should take into account the relevant markets including but not limited to the market shares of other market participants, the market power of an undertaking on closely related markets, barriers to entry, market concentration, product differentiation, capacity constraints and switching costs.
Amendment 251 #
Proposal for a directive
Recital 155
Recital 155
(155) For national regulatory authorities the starting point foro facilitate the identification of wholesale markets susceptible to ex ante regulation is the analysis of correspondingt might be appropriate to analyse the relevant retail markets. It is however not necessary to formally define the retail markets when the focus of the market analysis procedure is on a wholesale market as an wholesale market might correspond to more than one retail markets. The analysis of effective competition at the retail and at the wholesale level is conducted from a forward-looking perspective over a given time horizon, and is guided by competition law, including the relevant case-law of the Court of Justice, as appropriate. If it is concluded that a retail markets would be effectively competitive in the absence of ex ante wholesale regulation on the corresponding relevant market(s), this shouldmay lead the national regulatory authority to conclude that regulation is no longer needed at the relevant wholesale level.
Amendment 343 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
National regulatory and other competent authorities may contribute within their competencies to ensuring the implementation of policies aimed at the promotion of freedom of expression and information, cultural and linguistic diversity, as well as media pluralism.
Amendment 408 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Member States shall guarantee the independence of national regulatory authorities and of other competent authorities by ensuring that they are legally distinct from and functionally independent of all organisations providing electronic communications networks, equipment or services and of the respective government . Member States that retain ownership or control of undertakings providing electronic communications networks and/or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.
Amendment 411 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The head of a national regulatory authority, or, where applicable, the members of the collegiate body fulfilling that function within a national regulatory authority or their replacements, shall be appointed for a term of office of at least four years from among persons of recognised standing and professional experience, on the basis of merit, skills, knowledge and experience and following an open and transparent selection procedure. They shall not be allowed to serve more than two terms, either consecutive or not. Member States shall ensure continuity of decision-making by providing for an appropriate rotation scheme for the members of the collegiate body or the top management, such as by appointing the first members of the collegiate body for different periods, in order for their mandates, as well as that of their successors not to elapse at the same moment.
Amendment 413 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Without prejudice to the provisions of Article 10, national regulatory authorities shall act independently and objectively, operate in a transparent and accountable manner in accordance with Union law and national law, have sufficient powers and shall not seek or take instructions from any other body in relation to the exercise of the tasks assigned to them under national law implementing Union law. This shall not prevent supervision in accordance with national constitutional law. Only appeal bodies set up in accordance with Article 31 shall have the power to suspend or overturn decisions by the national regulatory authorities.
Amendment 568 #
Proposal for a directive
Article 40 – paragraph 1
Article 40 – paragraph 1
1. Member States shall ensure that undertakings providing public communications networks or publicly available electronic communications services take appropriate technical and organisational measures to appropriately manage the risks posed to security of networks and services. Having regard to the state of the art, these measures shall ensure a level of security appropriate to the risk presented. In particular, measures shall be taken to ensure that electronic communications content are encrypted from end-to-end by default, in order to prevent and minimise the impact of security incidents on users and on other networks and services.
Amendment 570 #
Proposal for a directive
Article 40 – paragraph 1 a (new)
Article 40 – paragraph 1 a (new)
1 a. Member States shall not impose any obligation to undertakings providing public communications networks or publicly available electronic communications services that would result in the weakening of the security of their networks and services.
Amendment 573 #
Proposal for a directive
Article 40 – paragraph 3 – subparagraph 2 – point e
Article 40 – paragraph 3 – subparagraph 2 – point e
Amendment 577 #
Proposal for a directive
Article 40 – paragraph 5
Article 40 – paragraph 5
5. The Commission, shall be empowered to adopt delegated acts in accordance with Article 109 with a view to specifying the measures referred to in paragraphs 1 and 2, including measures defining the circumstances, format and procedures applicable to notification requirements. The delegated acts shall be based on European and international standards to the greatest extent possible, and shall not prevent Member States from adopting additional requirements in order to pursue the objectives set out in paragraphs 1 and 2. Where Member States impose additional requirements on undertakings providing public communications networks or publicly available electronic communications services in more than one Member state, they should notify these measures to the Commission and ENISA. ENISA shall assist Member states in coordinating the measures taken to avoid duplication or diverging requirements that may create security risks and barriers to the internal market.
Amendment 578 #
Proposal for a directive
Article 40 – paragraph 5 a (new)
Article 40 – paragraph 5 a (new)
5 a. By ...[date] in order to contribute to the consistent application of measures for the security of networks and services, ENISA, shall, after consulting stakeholders and in close cooperation with the Commission and BEREC issue guidelines on minimum criteria and common approaches for the security of networks and services and the promotion of the use of end-to-end encryption.
Amendment 620 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 1
Article 46 – paragraph 1 – subparagraph 1
Member States shall facilitate the use of radio spectrum, including shared use, under general authorisations and limit the granting of individual rights of use for radio spectrum to situations where such rights are necessary to maximise efficient use in the light of demand and, taking into account the criteria set out in the second subparagraph. In all other cases, they shall set out the conditions for the use of radio spectrum in a general authorisation.
Amendment 626 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 2 – introductory part
Article 46 – paragraph 1 – subparagraph 2 – introductory part
Amendment 627 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 2 – point a
Article 46 – paragraph 1 – subparagraph 2 – point a
Amendment 629 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 2 – point b
Article 46 – paragraph 1 – subparagraph 2 – point b
(b) the need to protect againstavoid harmful interference;
Amendment 630 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 2 – point c
Article 46 – paragraph 1 – subparagraph 2 – point c
(c) the requirements for a reliable sharing arrangement, where appropriatesafeguard efficient use of spectrum;
Amendment 631 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 2 – point d
Article 46 – paragraph 1 – subparagraph 2 – point d
(d) the appropriate level of receiver resilience to ensure technical quality of communications or service ;
Amendment 634 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 2 – point e
Article 46 – paragraph 1 – subparagraph 2 – point e
(e) fulfil other objectives of general interest as defined by Member States in conformity with Union law.
Amendment 636 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 3 – introductory part
Article 46 – paragraph 1 – subparagraph 3 – introductory part
2. Whenre applying a general authorisation or individual rights taking in account measures adopted under Decision No 676/2002/EC where theropriate, Member States shall consider the possibility to authorise the use of radio spectrum bansed concerned has been harmonised, Member States shall seek to minimise problems of harmful interference, including in cases of shared use of radio spectrum on the basis of a combination of a combination of general authorisation and individual rights of use. They shall in particular consider the possibility of the gradual transfer from general authorisation andto individual rights of use. In so doing, t where necessary to foster innovation and facilitate market entry of smaller market participants. They shall hfave regard to the need:our technological solutions for the management of potential harmful interference with a view to choose the least restrictive authorisation regime possible.
Amendment 639 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 3 – indent 1
Article 46 – paragraph 1 – subparagraph 3 – indent 1
Amendment 640 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 3 – indent 2
Article 46 – paragraph 1 – subparagraph 3 – indent 2
Amendment 642 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 3 – indent 3
Article 46 – paragraph 1 – subparagraph 3 – indent 3
Amendment 645 #
Proposal for a directive
Article 46 – paragraph 1 – subparagraph 3 a (new)
Article 46 – paragraph 1 – subparagraph 3 a (new)
When authorising the shared use of spectrum, Member States shall minimise the restrictions to the use of radio spectrum to what is necessary to avoid harmful interference, including by limiting to the best extent possible the application of the non-interference, non- protection principle. Where such principles shall apply, Member States shall take measures to ensure protection against out-of-and interference from adjacent bands.
Amendment 648 #
Proposal for a directive
Article 46 – paragraph 2
Article 46 – paragraph 2
2. When taking a decision pursuant to paragraph 1 with a view to facilitating the shared use of radio spectrum, the competent authoritiMember States shall ensure that the rules and conditions for the shared use of radio spectrum where applied are clearly set out and concretely specified in the acts of authorisation.
Amendment 651 #
Proposal for a directive
Article 46 – paragraph 3
Article 46 – paragraph 3
3. The Commission may, taking utmost account of the opinion of the Radio Spectrum Policy Group, adopt implementing measures on the modalities of application of the criteria, rules and conditions referred to in paragraphs 1 and 24 with regard to harmonised radio spectrum. It shall adopt these measures in accordance with the examination procedure referred to in Article 110(4).
Amendment 663 #
Proposal for a directive
Article 49 – paragraph 1
Article 49 – paragraph 1
1. Where Member States authorise the use of radio spectrum through individual rights of use for a limited period of time, they shall ensure that the authorisation is granted for a period that is appropriate in view of the objective pursued taking due account of the need to ensure effective and efficient use and, promote efficient investments, including by allowing for an appropriate period for investment amortisation , promote innovation and allow for the evolution of services and technologies.
Amendment 670 #
Proposal for a directive
Article 49 – paragraph 2
Article 49 – paragraph 2
2. Where Member States grant rights of use for harmonised radio spectrum for a limited period of time, those rights of use for harmonised radio spectrum shall be valid for a maximum duration of at least 25 years, except in the case of temporary rights, temporary extension of rights pursuant to paragraph 3 and rights for secondary use in harmonised bands. Where rights of use have been granted for a duration of 25 years, Member states shall conduct reviews at regular intervals of every 5 years to assess if the use of spectrum is the most efficient in light of technological or market evolution, and where justified and necessary shall amend such rights in accordance with articles 50 and 51.
Amendment 703 #
Proposal for a directive
Article 55 – paragraph 2
Article 55 – paragraph 2
2. Competent authorities shall not prevent providers of public communications networks or publicly available electronic communications services from allowing access to their networks to the public, through radio local area networks, which may be located at an end-user's premises, subject to compliance with the applicable general authorisation conditions and the prior informed agreement of the end-user. Individuals providing access to their networks for non-commercial purposes shall not be liable for information transmitted by third parties through the use of such access.
Amendment 732 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 3 – point i
Article 59 – paragraph 1 – subparagraph 3 – point i
(i) to the extent necessary to ensure interoperability of interpersonal communications services and may include obligations relating to the use and implementation of standards or specifications listed in Article 39(1) or of any other relevant European or international standards; andsuch obligations shall not lead to the weakening of security standards of these services.
Amendment 733 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 3 – point ii
Article 59 – paragraph 1 – subparagraph 3 – point ii
(ii) where the Commission, on the basis of a report that it had requested from BEREC, has found an appreciable threat to effective access to emergency services or to end-to-end connectivity between end- users within one or several Member States or throughout the European Union and has adopted implementing measures specifying the nature and scope of any obligations that may be imposed, in accordance with the examination procedure referred to in Article 110(4). Member states may not impose any additional obligations.
Amendment 840 #
Proposal for a directive
Article 65 – paragraph 4
Article 65 – paragraph 4
4. Where a national regulatory authority determines that, in a relevant market the imposition of regulatory obligations in accordance with paragraphs 1 and 2 of this Article is justified, it shall identify any undertakings which individually or jointly have a significant market power , or might significantly impede effective competition on that relevant market in accordance with Article 61. The national regulatory authority shall impose on such undertakings appropriate specific regulatory obligations in accordance with Article 66 or maintain or amend such obligations where they already exist if it considers that one or more retail markets would not be effectively competitive in the absence of those obligations. In the case of significant impediment to effective competition, the national regulatory authority shall consider the proper circumstances of the case, take due account of the need for proportionality and consider the adoption of the least burdensome remedies.
Amendment 852 #
Proposal for a directive
Article 66 – paragraph 4
Article 66 – paragraph 4
4. Obligations imposed in accordance with this Article shall be based on the nature of the problem identified, in particular at retail levelthe relevant markets to safeguard long term sustainable competition, and where appropriate taking into account the identification of transnational demand pursuant to Article 64. They shall be proportionate, have regard to the costs and benefits, and be justified in the light of the objectives laid down in Article 3 of this Directive. Such obligations shall only be imposed following consultation in accordance with Articles 23 and 32. In cases of one or more undertakings considered as significantly impeding effective competition, national regulatory authorities shall take due account of the specific circumstances of the case and consider the least burdensome remedies, taking into account their proportionality and their potential benefits for end-users.
Amendment 884 #
Proposal for a directive
Article 70 – paragraph 1
Article 70 – paragraph 1
1. A national regulatory authority may, in accordance with Article 66, impose obligations on operators to meet reasonable requests for access to, and use of, civil engineering including, without limitation, buildings or entries to buildings, building cables including wiring, antennae, towers and other supporting constructions, poles, masts, ducts, conduits, inspection chambers, manholes, and cabinets, in situations where the market analysis indicates that denial of access or access given under unreasonable terms and conditions having a similar effect would hinder the emergence of along-term sustainable competitive market at the retail levelon in the relevant markets and would not be in the end-user's interest.