Changes from report parliamentary committee draft to plenary report

Added(b) where they are not part of a network and are owned or controlled by public sector bodies: buildings or entries to buildings, including rooftops, parts of the facade and any other asset including street furniture, such as light poles, street signs, traffic lights, billboards, bus and tramway stops and metro stations.

AddedCables, including dark fibre, as well as elements of networks used for the provision of water intended for human consumption as defined in Article 2, point 1, of Council (EU) 2020/2184 of the European Parliament and of the Council are not physical infrastructure within the meaning of this Regulation;

Added(3) ‘civil works’ means every outcome of building or civil engineering works taken as a whole that is sufficient in itself to fulfil an economic or technical function and entails one or more elements of a physical infrastructure;

Added(4) ‘public sector body’ means a State, regional or local authority, a body governed by public law or an association formed by one or several such authorities, ▌one or several such bodies governed by public law;

Added(5) ‘bodies governed by public law’ means bodies that have all of the following characteristics:

Added(a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

Added(b) they have legal personality;

Added(c) they are financed, in full or for the most part, by state, regional or local authorities or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by state, regional or local authorities or by other bodies governed by public law;

Added(6) ‘in-building physical infrastructure’ means physical infrastructure or installations at the end user’s location, including elements under joint ownership, intended to host wired and/or wireless access networks, where such access networks are capable of delivering electronic communications services and connecting the building access point with the network termination point;

Added(7) ‘in-building fibre wiring’ means optical fibre cables at the end user’s location, including elements under joint ownership, intended to deliver electronic communications services and connecting the building access point with the network termination point;

Added(8) ‘fibre-ready in-building physical infrastructure’ means in-building physical infrastructure intended to host optical fibre elements;

Added(9) ‘major renovation works’ means building or civil engineering works at the end user’s location encompassing structural modifications of the entire in-building physical infrastructure or a significant part thereof and that require a building permit;

Added(10) ‘permit’ means an explicit or implicit decision or set of decisions taken simultaneously or successively by one or several competent authorities that are needed for an undertaking to carry out building or civil engineering works necessary for the deployment of elements of very high capacity networks;

Added(11) ‘access point’ means a physical point, located inside or outside the building, accessible to one or more undertakings that provide or that are authorised to provide public electronic communications networks, where connection to the fibre-ready in-building physical infrastructure is made available.

Added(11a) ‘rights of way’ means rights referred to in Article 43(1) of the Directive (EU) 2018/1972.

Added1. Network operators or public sector bodies owning or controlling physical infrastructure ▌shall meet all reasonable written requests of operators for access to that physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of very high capacity networks or associated facilities. Public sector bodies owning or controlling physical infrastructure shall meet all reasonable requests for access also under non-discriminatory terms and conditions. Such written requests shall specify the elements of the physical infrastructure for which the access is requested, including a specific time frame.

Added1a. Where necessary to ensure the continuity of the electronic communication service, owners of land on which associated facilities have been installed with a view to deploying elements of very high capacity networks, shall negotiate with undertakings that provide or are authorised to provide those associated facilities under fair and reasonable terms and conditions, and in accordance with national contract law, on the access to such land, including the price for such access.

Added1b. Owners of private buildings used exclusively for commercial purposes, which are not part of a network, shall also meet reasonable requests for access to those buildings, including the rooftops of those buildings, with a view to installing elements of very high capacity networks or associated facilities under fair and reasonable terms and conditions, including with regard to the price for such access, where:

Added(a) no very high capacity network is deployed in the area for which the request for access is made and there is no proven plan to deploy such a nrtwork within a year from the moment when the network operator requests access;

Added(b) there is no existing physical infrastructure in the area for which the request for access is made, that is owned or controlled by network operators or public sector bodies and is technically suitable to host elements of very high capacity networks; or

Added(c) the requesting operator proves that it has failed to obtain State aid to deploy physical infrastructure in that area, or to find a suitable co-investor to deploy physical infrastructure in the area with regard to which the access request is made.

AddedThis paragraph shall be without prejudice to the right of Member States to expand the obligation to meet reasonable requests for access to physical infrastructure to buildings which are not part of the network.

Added2. When determining prices as part of fair and reasonable terms and conditions for granting access, and in order to avoid excessive prices, network operators and public sector bodies owning or controlling physical infrastructure shall take into account the following:

Added(a) the need to ensure that the access provider has a fair opportunity to recover the costs it incurs in order to provide access to its physical infrastructure, taking into account specific national conditions, different business models, and any tariff structures put in place to provide a fair opportunity for cost recovery; in the case of electronic communications networks, any remedies imposed by a national regulatory authority shall also be taken into account.

Added(b) the impact of the requested access on the access provider’s business plan, including investments in the physical infrastructure to which the access has been requested, as well as the need to ensure that the access provider receives a fair return on its investment, which reflects the relevant market conditions and, in particular in the case of the providers of associated facilities, their different business models.

Added(c) in the specific case of access to physical infrastructure of operators, the economic viability of those investments based on their risk profile, any time schedule for the return on investment, any impact of access on downstream competition and consequently on prices and return on investment, any depreciation of the network assets at the time of the access request, any business case underpinning the investment at the time it was made, in particular in the physical infrastructures used for the provision of connectivity, and any possibility previously offered to the access seeker to co-invest in the deployment of the physical infrastructure, notably pursuant to Article 76 of Directive (EU) 2018/1972, or to co-deploy alongside it.

Added(ca) any additional maintenance and adaptation costs resulting from providing access to the relevant infrastructure.

Added2a. Paragraph 2 shall not apply to associated facilities when they operate as a wholesale only model which offers physical access to more than one host undertaking that provide or that are authorised to provide public electronic networks, unless national regulatory authorities justify, on the basis of a market analysis, the need for market remedies to be imposed.

Added3. Network operators and public sector bodies owning or controlling physical infrastructure may refuse access to specific physical infrastructure on the basis of one or more of the following grounds:

Added(a) there is a lack of technical suitability of the physical infrastructure to which access has been requested to host any of the elements of very high capacity networks referred to in paragraph 2;

Added(b) there is a lack of availability of space to host the elements of very high capacity networks or associated facilities referred to in paragraph 2, including after having taken into account the future need for space of the access provider that is sufficiently demonstrated;

Added(c) the existence of safety and public health concerns;

Added(d) concerns for the integrity and security of any network, in particular critical national infrastructure;

Added(e) the risk of serious interferences of the planned electronic communications services with the provision of other services over the same physical infrastructure; or

Added(f) the availability of viable alternative means of wholesale physical access to electronic communications networks provided by the same network operator and suitable for the provision of very high capacity networks, provided that such access is offered under fair and reasonable terms and conditions.

Added(fa) the availability of viable alternative means of physical access to open, non-discriminatory electronic communications networks, which are:

Added(i) located in rural or remote areas,

Added(ii) operated on a wholesale only basis,

Added(iii) owned or controlled by public sector bodies, and

Added(iv) suitable for the provision of very high capacity networks, provided that such access is offered under fair and reasonable terms and conditions.

AddedIn the event of a refusal to provide access, the network operator or the public sector body owning or controlling physical infrastructure shall communicate to the access seeker, in writing, the specific and detailed reasons for such refusal within 1 month from the date of the receipt of the complete request for access.

Added4. Member States shall establish a body to coordinate access requests to physical infrastructure owned or controlled by public sector bodies, provide legal and technical advice through the negotiation of access terms and conditions, including with respect to access to land, and facilitate the provision of information via a single information point referred to in Article 10.

Added5. Physical infrastructure which is already subject to access obligations imposed by national regulatory authorities pursuant to Directive (EU) 2018/1972 or resulting from the application of Union State aid rules shall not be subject to the obligations set out in paragraphs 2, 3 and 4, for as long as such access obligations are in place.

Added6. Public sector bodies owning or controlling buildings or certain categories of buildings may not apply paragraphs 1, 2 and 3 to those buildings or categories of buildings for reasons of architectural, historical, religious, or natural value, or for reasons of public security, safety and health. Member States and regional and local authorities shall identify such buildings or categories of buildings in their territories on the basis of duly substantiated, proportionate reasons. Information on such buildings or categories of buildings shall be published via a single information point and notified to the Commission.

Added7. Operators shall have the right to offer access to their physical infrastructure for the purpose of deploying networks other than electronic communications networks or associated facilities.

Added8. Notwithstanding paragraph 1b, this Article shall be without prejudice to the right to property of the owner of the physical infrastructure where the network operator or the public sector body is not the owner and to the right to property of any other third party, such as landowners and private property owners.

Added9. After having consulted stakeholders, the national dispute settlement bodies and other competent Union bodies or agencies in the relevant sectors as appropriate, and having taken into account well-established principles and the distinct situation across Member States, the Commission shall, in close cooperation with BEREC, provide guidance on the application of this Article by ... [the date of application of this Regulation].

Added1. In order to request access to physical infrastructure in accordance with Article 3, any operator shall have the right to access, upon request, the following minimum information on existing physical infrastructure in electronic format via a single information point:

Added(a) georeferenced location and route;

Added(b) type and current use of the infrastructure;

Added(c) a contact point.

AddedSuch minimum information shall be accessible promptly, under proportionate, non-discriminatory and transparent terms and, in any event no later than 15 days after the request for information is submitted.

AddedAny operator requesting access to information pursuant to this Article shall specify the area in which it envisages deploying elements of very high capacity networks or associated facilities.

AddedAccess to the minimum information may be limited only where necessary to ensure the security of certain buildings owned or controlled by public sector bodies, the security of the networks and their integrity, national security, public health or safety, or for reasons of confidentiality or operating and business secrets.

Added1a. In addition to the minimum information referred to in paragraph 1, first subparagraph, Member States may require information on existing physical infrastructure such as information on the occupation level of the physical infrastructure.

Added2. Network operators, including operators of electronic communication networks and public sector bodies shall make available at least the minimum information referred to in paragraph 1, and, where applicable, as additional information referred to in paragraph 1a via the single information point and in electronic format, 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.

Added2a. By way of derogation from paragraph 2, a Member State may, in duly substantiated cases, extend the deadline referred to in that paragraph for specified public sector bodies. Any such extension shall be granted only once and for the shortest possible time and shall not exceed three months. When extending the deadline, the Member State shall set out a roadmap with strict deadlines for making minimum information referred to in paragraph 1 available via the single information point and in electronic format. Those exceptions and the roadmaps shall be published in advance via the single information point.

Added3. Network operators and public sector bodies shall meet reasonable requests for on-site surveys of specific elements of their physical infrastructure upon specific written request of an operator. Such requests shall specify the elements of the physical infrastructure concerned with a view to deploying elements of very high capacity networks or associated facilities. On-site surveys of the specified elements of the physical infrastructure shall be granted under proportionate, non-discriminatory and transparent terms within 1 month from the date of receipt of the request, subject to the limitations set out in paragraph 1, fourth subparagraph.

Added4. Paragraphs 1, 2 and 3 need not apply to critical national infrastructure as defined under national law.

AddedParagraphs 1, 2 and 3 shall not apply: