1376 April-June, 1995
SPAIN - The Liberalization of Telecommunication
Rafael Echegoyen, Esq. and José Luis de San Pío, Esq.
(J & A Garrigues)
AT THE EUROPEAN UNION
The European Union (EU) began to deal with the regulation of
telecommunications in 1984, when a Declaration of the Council of
Ministers identified certain lines of action requiring the
Commission's attention. As a result of this Declaration and the
work carried on by a group of EU officials, on June 30, 1987 the
Commission submitted a Green Paper on the development of the Common
Market for telecommunications services and equipment up to 1992.
The initial efforts of the Commission were directed towards the
international harmonization of telecommunications networks. It is
easily understandable that the longstanding existence for many
years of separate domestic markets had made it very difficult to
interconnect those systems, as necessary, to permit sophisticated
services to be offered at a transboundary level. The
interconnection of telephone or telex services had been practically
achieved, but technical progress was exerting pressure for a more
widespread use of more modern communication systems.
The endeavors towards harmonization were carried out by defining
technical requirements and the conditions for access to the
networks by all countries.
Within this aspect, we must underline Council Directive 90/387/EEC
(OJ L.192, 24.7.1990, p.1), on the establishment of an internal
market for telecommunications services through the implementation
of the Open Network Provision, generally known as ONP. ONP means
open and efficient access to public telecommunications networks and
the effective use of those networks and services.
In general terms, ONP conditions include harmonized conditions with
regard to:
technical interfaces, including the definition and
implementation of network termination points, where
required,
usage conditions, including access to frequencies where
required, and
tariff principles.
ONP conditions must be based on objective criteria, they must be
transparent and adequately publicized and they must guarantee
equality of access on a non-discriminatory basis.
Directive 90/387/EEC provides that ONP conditions must not restrict
access to public telecommunications networks, except for reasons
based on essential requirements within the framework of Community
law, consisting of:
security of networks operations,
maintenance of networks integrity,
interoperability of services, in justified cases, and
protection of data, as appropriate.
Nevertheless, one of the most important points of Directive
90/387/EEC is the provision that ONP conditions may not allow for
any additional restrictions on the use of the public
telecommunications networks and/or public telecommunications
services, except for those restrictions that may arise from the
exercise of special or exclusive rights granted by member countries
and compatible with Community law.
The rules for uniform application of the essential requirements, in
particular concerning the interoperability of services and the
protection of data, will be determined, where appropriate, by the
Commission, following the procedure laid down in the Directive.
In addition, open network provisions conditions will be defined in
stages and will concern the following activities:
leased lines,
packet- and circuit-switched data services,
integrated services digital networks (ISDN),
telex services,
mobile services,
new types of access to the networks, and
access to the broadband networks, according to progress
on definition and technological development.
The Directive calls on the Commission to draw up a work program
each year. As part of this program, the Commission was required to
request the European Telecommunications Standards Institute (ETSI)
to draw up European Standards, in coordination with the Joint
European Standards Institution CEN/CENELEC.
Simultaneously, it became obvious that network harmonization was
only one step forward and that there was a market for value-
addedservices to be rendered through the networks obtained by
implementation of the ONP principles. Under these circumstances,
on June 28, 1990, Commission Directive 90/388/EEC (OJ No. L.192,
24.7.1990, p.10) was approved, partially modified by Commission
Directive 94/46/EC (OJ No. L.268, 19.1.94. p. 15).
According to Directive 90/388/EEC, member countries will withdraw
all special or exclusive rights to supply telecommunications
services other than voice telephony, taking the necessary measures
to ensure that any operator is entitled to supply them.
Furthermore, when the supply of these services is subject to a
licensing or declaration procedure in any given member country,
this country must ensure that the conditions for the granting of
licenses are objective, non-discriminatory and transparent, that
reasons are given for any refusal, and that a procedure is provided
for appealing in case of refusal.
In regards to packet- or circuit-switched data services, until
December 31, 1992, member countries were permitted to prohibit
economic operators from offering leased line capacity for simple
resale to the public.
On June 5, 1992 Directive 82/44/EEC (OJ L.165/27, 19.6.92), was
published, concerning the application of the ONP to the leased
lines. Among other aspects, this Directive recalls that according
to the Directive 90/388/EEC, no other limitations should be
imposed on the use of the leased lines, particularly for signal
transmissions not originating from the user when the user rented
the line or when the signals are received bound for the user.
It is also important to mention that on July 22, 1993, the Council
approved Resolution 93/213/01 (OJ C 213, 6.8.1993), finally
incorporating the notion of total liberalization of communications,
subject to a certain calendar. Naturally, this is the unavoidable
result of technical development. The Council deemed control of the
liberalization process to be important in order to guarantee the
maintaining of the public service, its worldwide coverage and the
financial soundness of the operating companies.
Subject to the achieving of these goals, the liberalization of the
telephone service is scheduled to take place on January 1, 1998.
However, as a special consideration for the countries with less
developed networks, Spain, Portugal, Ireland and Greece have been
granted an additional five-year period to guarantee complete
performance of the targets set by the Council. Spain seems to have
relinquished this additional period. This relinquishment is set
out in the Agreement on telecommunications policy during the
interim period until 1998, approved by the Council of Ministers on
October 7, 1994, although subject to certain conditions, and also
in the draft cable telecommunications act under debate by
Parliament. [It would be desirable for Spain's final position to be
notified to the EU and made public].
The access tariff must be implemented prior to January 1, 1996.