PROPIEDADES QUÍMICAS DEL COMBUSTIBLE SÓLIDO

2.1 The 1987 Green Paper model

The 1987 Green Paper set out a number o f key objectives which were achieved through a variety o f measures including for the most part directives, but also recommendations and guidelines. Those principles can be summarised as follows: (i) Member States may leave telecommunications infrastructures under monopoly but m ust preserve network; (ii) the telecommunications services, with the exception o f voice telephony, must be liberalised;^ (iii) terminal equipment must be liberalised;^ (iv) Community-wide interoperability must be achieved;^ (v) the regulatory and operational function o f public

Communication o f the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee o f the Regions - Review o f the telecommunications regulatory framework - a new framework for electronic communications infrastructure and associated services, the 1999 Communications Review (COM (1999) 539); followed by the Communication on the results o f the public consultation on the 1999 Communications Review (COM (2000) 239).

The adoption o f Directive 90/388/EEC (“the Services Directive”) was the first step towards a systematic liberalisation o f the field o f communications in the Community. The Services directive did not apply to television or radio broadcasting. Moreover, in its original form, the Services Directive did not apply to telex mobile telephony paging, satellite services and not even voice telephony which was defined in Article 1 as “r/zg commercial provision fo r the public o f the direct transport and switching o f speech in real time between public switched network termination points, enabling any user to use equipment connected to such a network termination point in order to communicate with another termination p o in t”. For a gloss see P. Larouche “Telecommunications" in Geradin (Ed), The Liberalization o f State Monopolies in

the European Union and Beyond (Kluwer Law International, 2000), at 25.

See Directive 88/301/EEC on terminal equipment o f 16th May 1988. This was the first directive to be adopted by the Commission in the telecommunications sector. Following the 1987 Green Paper a wide consensus had been achieved on the need o f full liberalisation o f the terminal equipment market. The Directive required the abolition o f all exclusive rights for import, marketing, connection, bringing into service or maintenance o f telecommunications terminal equipment. Local type approval procedures could continue however they were limited only to the cases involving essential requirements o f the public network, such as maintenance o f security o f the network, the achievement o f interoperability and the protection o f data.

See in particular the Article 95 Directive 91/263/EEC (OJ 1991, L 128/1) replacing Directive 86/361/EEC on the initial stage o f the mutual recognition o f type approval for telecommunications terminal equipment (OJ 1998, L 74/1). Directive 91/263 was consolidated through Directive 98/13/EC on telecommunications terminal equipment and satellite earth station equipment, including mutual recognition o f its conformity. The system which proven too slow is being replaced by a mutual recognition framework se Directive 99/5/EC on radio equipment and telecommunications terminal and the mutual recognition o f their conformity, OJ 1999, L91/10. Other measures taken or to be taken in this respect concerned Integrated Services Digital Network (ISDN) Recommendation 86/659 (OJ 1989, C 196/4), Resolution o f 18 July 1989 (OJ 1989, C 196/4), Resolution o f 5 June 1992 (OJ 1992, C 158/1); pan European GSM mobile standards,

Chapter II Antonio F. Bavasso

telecommunications operators (PTOs) must be separated;^® (vi) competition law must be applied to both PTOs and new service p r o v id e rs ;a n d (vii) an Open Network Provision (ONP) must be put in place to regulate the relationship between monopoly infrastructure providers and competitive service providers (including interconnection and access).

W hilst trying to avoid a detailed analysis o f the implementing measures a few points should be highlighted relating to the model proposed by (and realised as a result of) the 1987 Green Paper. Although the dividing line between services and infrastructure (or telecommunications services and telecommunications n e tw o r k s ) w a s clearly marked, this gradually faded and disappeared with the introduction o f new models o f regulation in subsequent periods. Another transitory but yet key distinction was that between reserved and non-reserved (i.e. non liberalised) s e r v i c e s .Television broadcasting was kept quite separate from telecommunications. In particular digital TV was subject to a separate directive (Directive 95/AlfECy^ which was not part o f the regulatory package. Directive 95/47/EC (the “TV Standards Directive”) a i m e d at establishing a regulatory regime for the start up phase o f the new digital TV service as well as making provision for adequate continuity with the regulatory environment for the advanced TV services based on analogue technology. It contains two types o f measures: harmonisation in the use o f certain technical standards for television transmission by cable, satellite or

Recommendation 87/371 (OJ 1987, L196/8I), Directive 87/372/EEC (OJ 1987, L 196/85) Resolution o f 14 December 1990 (OJ 1990, C 329/25), pan European paging system (ERMES) Recommendation 90/543 (OJ 1990, L 310/23, Directive 90/544/EEC (OJ 1990, L 310/28), Digital European Cordless Telecommunications (DECT) Recommendation 91/2888 (OJ 1991, L 144/47), Directive 91/287/EEC (OJ 1991,144/45); Decision on Community wide emergency number (112), Decision 91/396 (OJ 1991, L 217/31); and Decision on Community wide International Code (00) Decision 92/264 (OJ 1992, L 137/21.

This principle which informed much o f the ECJ’s case law (see Chapter VII) was set out on Article 6 o f Directive 88/301 and Article 7 o f Directive 90/388.

In 1991 the Commission adopted the Guidelines on the application o f EEC Competition Rules in the telecommunications sector (OJ 1991, C 233/2).

Telecommunications services meant a service whose provision consists wholly or partly in the transmission and routing o f signals on the public telecommunications network by means o f telecommunications process, with the exception o f radio broadcasting and television. Public telecommunications network meant the public telecommunications infrastructure which permits the conveyance o f signals between defined network termination points by wire, microwave, optical means or other electromagnetic means. For the distinctions between the use o f the term network and infrastructure see P. Larouche, supra note II-7 above, in his note 33.

In the period between 1990 to 1996 those were gradually enlarged by Directive 94/46/EC (OJ 1994, L 268/15) which included in the definition o f telecommunication services those (other than public voice telephony) provided over satellite networks.

See below.

Directive 95/47/EC, OJ 1995, L 281/51; see also Directive 92/38/EEC, on standards for satellite broadcasting o f television signals, OJ 1992, L 137/17.

terrestrial mode; and behavioural provisions on conditional access to digital television services broadcast to viewers in the Community.

The behavioural provisions contained in Article 4 are o f paramount importance in the regulation o f the bottleneck facilities situations created by the introduction o f decoders and set boxes. However, some limitations constrain the scope o f these provisions considerably. Firstly, this only applies to the new digital services and does not extend to the existing analogue services, which will continue to have a substantial (though decreasing) importance and will continue to be source o f market power. Secondly, only broadcasters can benefit from this provision and therefore other carriers which only transmit programmes created by other companies such as cable companies do not appear to be covered. Finally, Article 4 does not guarantee access to the provision o f interactive services which do not fall within the scope o f television although such access is essential to the profitability o f cable companies and other television carriers alike.

The 1987 Green Paper model was gradually implemented in the period between 1988 and 1996. In 1996 some further reforms resulting from a new review and consultation process were brought into force.

2,2 The 1992 Review and the 1994 Green Paper

In 1992 when the Commission published its Review o f the situation in the telecommunications services sector (in which it favoured the opening o f intra- Community voice communications to competition), it faced considerable pressure from the industry and users to push the liberalisation process further and extend it to the infrastructure which was not mentioned in the Review. As a result in its subsequent Communication on the result o f the consultation on the Review o f the situation in the

These provisions require Member States to take all the necessary measures to ensure that the operators of conditional access services, irrespective o f the means o f transmission, who produce and market access to digital television services offer to all broadcasters on fair, reasonable and non-discriminatory terms technical services enabling the broadcasters’ digitally transmitted services to be received by viewers authorised by means o f decoders administered by the service operators. The operators o f conditional access services must comply with Community competition law, in particular if a dominant position appears and are required to keep financial accounts regarding their activity as conditional access providers.

J. Temple Lang, “Media Multimedia and European Community Antitrust Law”, Fordham Corp. Law Inst. (1997), 377,