Changes from plenary report to adopted text

RemovedDRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

AddedP9_TA(2024)0292

Changedon the proposal for a regulation of the European Parliament and of the Council on measuresMeasures to reduce the cost of deploying gigabit electronic communications networks and repealing Directive 2014/61/EU (Gigabit Infrastructure Act)

Removed(COM(2023)0094 – C90028/2023 – 2023/0046(COD))

AddedCommittee on Industry, Research and Energy

AddedPE749.242

AddedEuropean Parliament legislative resolution of 23 April 2024 on the proposal for a regulation of the European Parliament and of the Council on measures to reduce the cost of deploying gigabit electronic communications networks and repealing Directive 2014/61/EU (Gigabit Infrastructure Act) (COM(2023)0094 – C9-0028/2023 – 2023/0046(COD))

▸5 unchanged paragraphs

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2023)0094),

– having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C90028/2023),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

Added– having regard to the reasoned opinion submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Italian Chamber of Deputies, asserting that the draft legislative act does not comply with the principle of subsidiarity;

– having regard to the opinion of the European Economic and Social Committee of 12 July 2023,

Added– having regard to the provisional agreement approved by the committee responsible under Rule 74(4) of its Rules of Procedure and the undertaking given by the Council representative by letter of 16 February 2024 to approve Parliament’s position, in accordance with Article 294(4) of the Treaty on the Functioning of the European Union,

▸5 unchanged paragraphs

– having regard to Rules 59 of its Rules of Procedure,

– having regard to the report of the Committee on Industry, Research and Energy (A9-0275/2023),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Change 1

RemovedAMENDMENTS BY THE EUROPEAN PARLIAMENT*

AddedP9_TC1-COD(2023)0046

Removedto the Commission proposal

AddedPosition of the European Parliament adopted at first reading on 23 April 2024 with a view to the adoption of Regulation (EU) 2024/… of the European Parliament and of the Council on measures to reduce the cost of deploying gigabit electronic communications networks, amending Regulation (EU) 2015/2120 and repealing Directive 2014/61/EU (Gigabit Infrastructure Act)

Removed---------------------------------------------------------

Added(As an agreement was reached between Parliament and Council, Parliament's position corresponds to the final legislative act, Regulation (EU) 2024/1309.)

Removed2023/0046 (COD)

RemovedProposal for a

RemovedREGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

Removedon measures to reduce the cost of deploying gigabit electronic communications networks, amending Regulation (EU) 2015/2120 and repealing Directive 2014/61/EU (Gigabit Infrastructure Act)

RemovedTHE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

RemovedHaving regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

RemovedHaving regard to the proposal from the European Commission,

RemovedAfter transmission of the draft legislative act to the national parliaments,

RemovedHaving regard to the opinion of the European Economic and Social Committee,

RemovedHaving regard to the opinion of the Committee of the Regions,

RemovedActing in accordance with the ordinary legislative procedure,

RemovedWhereas:

Removed(1) The digital economy has been changing the internal market profoundly over the last decade. The Union’s vision is a digital economy that delivers sustainable economic and social benefits based on excellent, reliable and secure connectivity for everybody and everywhere in Europe including in rural, remote and scarcely populated regions as well as in transport corridors. A high-quality digital infrastructure based on very high capacity networks underpins almost all sectors of a modern and innovative economy. It can provide for innovative services, more efficient business operations and smart, sustainable, digital societies, while contributing to achieving the Union climate targets set in the Commission communication of 11 December 2019 entitled ‘the European Green Deal’ and the twin digital and green transitions envisaged as the Union’s main priorities. It is of strategic importance to social and territorial cohesion and overall for the Union’s competitiveness, resilience, strategic autonomy and digital leadership. Digitalisation has a profound impact on the every-day social, economic, political and cultural life of all people in the Union. In that regard, limited access and insufficient network expansion can deepen social inequalities, thus creating a new digital divide between people who are able to benefit fully from an efficient and secure digital connectivity, allowing them to access a wide range of services, and people who are unable to do so. In that regard, the roll-out of very high capacity networks in rural, remote and scarcely populated regions, as well as in social housing, should be a priority for public and private investment projects, as a key aspect of social inclusion. Therefore, people as well as the private and public sectors should have the opportunity to be part of the digital economy.

Removed(2) The rapid evolution of technologies, the exponential growth in broadband traffic and the increasing demand for advanced very high-capacity connectivity have further accelerated during the COVID-19 pandemic. As a result, the targets laid down in the Digital Agenda in 2010 have mostly been met, but they have also become obsolete. The share of households having access to 30 Mbps internet speeds has increased from 58.1% in 2013 to 90% in 2022. Availability of only 30 Mbps is no longer future-proof and not aligned with the new objectives set in Directive (EU) 2018/1972 of the European Parliament and of the Council for ensuring connectivity and widespread availability of very high capacity networks. Therefore, in the Decision (EU) 2022/2481 of the European Parliament and Council, the EU set updated targets for 2030 that better correspond to the expected connectivity needs of the future where all European households should be covered by a gigabit network, with all populated areas covered by next-generation wireless high-speed networks with a performance of at least equivalent to that of 5G.

Removed(3) To achieve those targets, there is a need for policies to speed up, simplify and lower the costs of the deployment and use of very high-capacity fixed and wireless networks across the Union, including proper planning, enhanced coordination and setting-up of nationwide simplified and streamlined permit procedures as a way of reducing of administrative burdens on both operators and national administrations.

Removed(3a) Blending space and terrestrial infrastructure is important for the connectivity roll-out to better prepare for the next wave of digital infrastructure enabling the Union to take the lead. Recent technical progress has allowed satellite based communications constellations to emerge and gradually offer high-speed and low latency connectivity services, enable connectivity across the Union and around the globe, for citizens and business, including, but not limited to, providing access to affordable high-speed broadband that can help remove communication dead zones and increase cohesion across the Union, including its outermost regions, rural, remote and scarcely populated areas. In that regard, the resources provided by Regulation (EU) 2023/588 of the European Parliament and of the Council, and in particular the potential commercial internet access capabilities of the future satellite constellation should be included in the planning and deploying of very high capacity fixed and wireless networks across the Union and contribute, where possible, to the deployment of very high capacity networks.

Removed(4) Directive 2014/61/EU, which was adopted in response to the need for policies to lower the costs of broadband deployment, included measures on infrastructure sharing, civil works coordination and the reduction of administrative burdens. To further facilitate the roll-out of very high capacity networks, including fibre and 5G, the European Council, called in its Conclusions on Shaping Europe’s Digital Future of 9 June 2020, called for a package of additional measures to support current and emerging network deployment needs, including by reviewing Directive 2014/61/EU.

Removed(5) The roll-out of very high capacity networks (as defined in Directive (EU) 2018/1972) across the Union requires substantial investment, a significant proportion of which is the cost of civil engineering works. Sharing physical infrastructure would limit the need for costly civil engineering works and make advanced broadband roll-out more effective.

Removed(6) A major part of the costs of deploying very high capacity networks can be attributed to inefficiencies in the roll-out process related to: (i) the use of existing passive infrastructure (such as ducts, conduits, manholes, cabinets, poles, masts, antenna installations, towers and other supporting constructions); (ii) bottlenecks related to the coordination of civil works carried out by network operators or public authorities; (iii) burdensome and lengthy administrative procedures to grant permits; and (iv) bottlenecks in in-building deployment of networks, which lead to high financial barriers, particularly in rural areas.

Removed(7) Directive 2014/61/EU of the European Parliament and of the Council, which was adopted in response to the need to lower the costs of broadband deployment, included measures on infrastructure sharing, civil works coordination and the reduction of administrative burdens. To further facilitate the roll-out of very high capacity networks, including fibre and 5G, the European Council, in its Conclusions on Shaping Europe’s Digital Future of 9 June 2020, called for a package of additional measures to support current and emerging network deployment needs, including by reviewing Directive 2014/61/EU.

Removed(8) The measures set out in Directive 2014/61/EU contributed to less costly deployments of high-speed electronic communications networks. However, these measures should be strengthened and streamlined to further reduce costs and speed up network deployment.

Removed(9) Measures aiming to make using public and private existing infrastructures more efficient and reduce costs and obstacles in carrying out new civil engineering works should contribute substantially to ensuring a fast and extensive deployment of very high capacity networks, in particular in rural, remote or scarcely populated areas or in transport corridors. These measures should maintain effective competition without harming the safety, security, and smooth operation of the existing infrastructure and public health and environment, and should be based on adequate methodologies and scientific data.

Removed(10) Some Member States have adopted measures to reduce the costs of broadband roll-out, including by going beyond the provisions of Directive 2014/61/EU. However, those measures are still very different across Member States and have led to different results across the Union. Scaling up some of those measures across the Union and taking new reinforced measures could significantly contribute to the better functioning of the digital single market. Moreover, differences in regulatory requirements and inconsistent implementation of Union rules sometimes prevent cooperation across utility companies. The differences may also raise barriers to entry for new undertakings providing or authorised to provide public electronics communications networks or associated facilities, as defined in Directive (EU) 2018/1972 (‘operators’). These differences may also close off new business opportunities, hindering the development of an internal market for the use and deployment of physical infrastructures for very high capacity networks. Moreover, the measures notified in the national roadmaps and implementation reports adopted by Member States under Commission Recommendation (EU) 2020/1307 neither cover all the areas of Directive 2014/61/EU nor address all issues in a consistent and complete manner. This is despite how essential it is to take action across the whole roll-out process and across sectors to achieve a coherent and significant impact. Member States should be encouraged to continue implementing the best practices set out in the Commission Recommendation (EU) 2020/1307 that can facilitate the implementation of this Regulation in line with the minimum harmonisation principle.

Removed(11) This Regulation aims to strengthen and harmonise rights and obligations applicable across the Union to accelerate the roll-out of very high capacity networks and cross-sector coordination. Due to the persistent fragmentation of electronic communications markets in individual national markets, undertakings providing or authorised to provide electronic communications networks are unable to achieve economies of scale. This can have a strong downstream effect on cross-border trade and services provision, since many services can only be provided where an adequately performant network is in place across the Union. While ensuring an improved level playing field, this Regulation does not prevent national measures in compliance with Union law that serve to promote the joint use of existing physical infrastructure or enable a more efficient and rapid deployment of new physical infrastructure by complementing or going beyond the rights and obligations laid down in this Regulation. For example, Member States could shorten the deadlines to grant or deny permits necessary for deployment, introduce supplementary permit exemptions, extend provisions on civil works coordination also to privately funded projects, require that more information on physical infrastructure or planned civil works is provided to a single information point in electronic format, expand the provisions on access to existing physical infrastructure to privately owned buildings, as well as introduce further incentives for administrative bodies to speed up permitting procedures, give guidance on methodologies for access price setting, including through the use of cost-oriented principle where appropriate, provided that they do not violate Union law including the provisions of this Regulation.

Removed(12) To ensure legal certainty, including regarding specific regulatory measures imposed under Directive (EU) 2018/1972, under Title II, Chapters II to IV , Commission Directive 2002/77/EC, and Directive (EU) 2022/2555 of the European Parliament and the Council, the provisions of those directives and national measures for their implementation should prevail over this Regulation.

Removed(13) It can be significantly more efficient for operators, in particular new entrants, to reuse existing physical infrastructure, including that of other utilities, to roll out very high capacity networks or associated facilities. This is the case, in particular, in areas where no suitable electronic communications network is available or where it may not be economically feasible to build new physical infrastructure. Moreover, synergies across sectors may significantly reduce the need for civil works relating to the deployment of very high capacity networks. This reuse can also reduce the social and environmental costs linked to these works, such as pollution, noise and traffic congestion. Therefore, this Regulation should apply not only to operators but also to owners or holders of rights to use extensive and ubiquitous physical infrastructure suitable to host electronic communications network elements, such as physical networks for the provision of electricity, gas, water and sewage and drainage systems, and heating and transport services. In the case of holders of rights, this does not change any property rights of third parties or limit the exercise of such rights.

Removed(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. At the same time, it is important to ensure that the access providers have a fair return on investment, which reflects the relevant market conditions and, in particular in the case of providers of associated facilities, their different business models. Where access is provided through a contract agreed before the date of entry into force of this Regulation, and the price has already been negotiated and agreed, or included in the contract, the price should not be required to comply with fair and reasonable terms.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.

Removed(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 should also fall under the scope of this Regulation, except the provisions regarding in-building physical infrastructure and access. The provisions regarding the fair and reasonable terms and conditions for granting access should not apply to associated facilitates when they operate as a wholesale only model, which offers physical access to more than one host undertaking providing or authorised to provide public electronic communication networks, unless national regulatory authorities substantiate the need to impose market remedies as a result of a market analysis. In order to ensure continuity of service and predictability for the planned deployments of associated facilities, owners of land where associated facilities have been installed, should be required to negotiate access to land with undertakings providing or authorised to provide those associated facilities under fair and reasonable terms and conditions, including price, in accordance with national contract law.

Removed(16) In view of their low degree of differentiation, the physical facilities of a network can often host a wide range of electronic communications network elements at the same time without affecting the main service provided and with minimum adaptation costs. These elements include those capable of delivering broadband access services at speeds of at least 100 Mbps in line with the technological neutrality principle. Therefore, physical infrastructure, that is intended to only host other elements of a network without becoming an active network element itself, such as dark fibre, can in principle be used to accommodate electronic communications cables, equipment or any other element of electronic communications networks, regardless of its current use or its ownership, security concerns or future business interests of the infrastructure’s owner. The physical infrastructure of public electronic communications networks can in principle also be used to accommodate elements of other networks. Therefore, in appropriate cases, public electronic communications network operators may give access to their networks so that other networks can be deployed. Without prejudice to the pursuit of the specific general interest linked to the provision of the main service, synergies between network operators should at the same time be encouraged to contribute to achieving the digital targets set out in Decision (EU) 2022/2481.

Removed(17) In the absence of a justified exception, physical infrastructure elements owned or controlled by public sector bodies or any entity exclusively entrusted with performing tasks on behalf of those 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, entries to buildings, rooftops and facades of 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 , in cooperation with regional and local authorities 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, national security or road safety. In order to ensure public acceptance and sustainable deployment, network elements of very high capacity networks should have minimal visual impact.

Removed(17a) On the one hand, entire areas, especially in rural regions, could be left without connectivity due to the fact that the public sector infrastructure does not allow or is not suitable for the installation of elements of very high capacity networks. On the other hand, there are commercial buildings that are the only alternative to hosting such elements. Aiming to ensure connectivity in remote and scarcely populated areas and to bridge the digital coverage gap between rural and urban areas, while keeping the interference with private property to a minimum, the requirements to provide access to existing physical infrastructure should, in very limited situations, be extended to commercial buildings. The obligation to provide access in those cases would be justified provided that there is no alternative to developing very high capacity networks in the area concerned and subject to fair conditions, including concerning the remuneration for providing such access. That obligation would be applied only where one of the following conditions is met: there is no very high capacity network deployed in the area concerned and there is no proven plan to do so within a year from the request for access by the network operator; there is no available existing physical infrastructure owned or controlled by network operators or public sector bodies which is technically suitable to host elements of very high capacity networks in the area concerned; or the requesting operator proves that it has failed to obtain State aid to deploy a very high capacity network in the area concerned or to find a suitable co-investor to deploy such physical infrastructure.

Removed(18) This Regulation should be without prejudice to any specific safeguard needed to ensure safety and public health, the security and integrity of the networks, in particular critical infrastructure, as defined by national law, and to ensure that the main service provided by the network operator or a public sector body is not affected, in particular in networks used for the provision of water intended for human consumption. However, general rules in national legislation prohibiting network operators from negotiating access to physical infrastructures by undertakings providing or authorised to provide electronic communications networks or associated facilities could prevent creating a market for access to physical infrastructure. Such general rules should therefore be abolished. At the same time, the measures set out in this Regulation should not prevent Member States from incentivising utility operators to give access to infrastructure by excluding revenue generated from the access to their physical infrastructure when calculating end-user tariffs for their main activity or activities, in accordance with applicable Union law.

Removed(19) In order to ensure legal certainty and avoid disproportionate burdens on network operators resulting from the simultaneous application of two distinct access regimes to the same physical infrastructure, physical infrastructure subject to access obligations imposed by national regulatory authorities pursuant to Directive (EU) 2018/1972 or access obligations resulting from the application of Union State aid rules should not be subject to access obligations set out in this Regulation for as long as such access obligations remain in place. However, this Regulation should be applicable where a national regulatory authority has imposed an access obligation under Directive (EU) 2018/1972 that limits the use that can be made of the physical infrastructure concerned. For instance, this could occur when an operator planning to connect base stations requests access to existing physical infrastructure to which access obligations are imposed in the market for access to wholesale dedicated capacity.

Removed(20) To ensure proportionality and preserve investment incentives, especially for very high capacity networks pioneers, and thus create an incentive for the rapid rollout of very high capacity networks to rural and remote 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 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, which should, in particular, be avoided until sufficient coverage of rural areas with very high capacity networks 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, ▌the need to avoid any reinforcement of the significant market power, if any, of either party, and the need to ensure a fair return on investment reflecting the relevant market conditions and business model in the case of the providers of associated facilities.