26. 1. 96 Official Journal of the European Communities No L 20/5% COMMISSION DIRECTIVE 96/2/EC of 16 January 1996 amending Directive 90/388/EEC with regard to mobile and personal communications THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, and in particular Article 90 (3) thereof, Whereas : @ 3 In its communication on the consultation on the Green Paper on mobile and personal communica- tions of 23 November 1994, the Commission set out the major actions required for the future regula- tory environment necessary to exploit the potential of this means of communication. It emphasized the need for the abolition, as soon as possible, of all remaining exclusive and special rights in the sector through full application of Community on compe- tition rules and with the amendment of Commis- sion Directive 90/388/EEC of 28 Jjune 1990 competition in the markets for telecommunications services ('), as last amended by Directive 95/51/EC (), where required. Moreover, the communication considered removing restrictions on the free choice of underlying facilities used by mobile network operators for the operation and development of their networks for those activities which are allowed by the licences or authorizations. Such a step was seen as essential in order to over- come current distortions of fair competition and, in particular, to allow such operators control over their cost base. The Council Resolution of 29 June 1995 on the further development of mobile and personal communications in the European Union (}) gave general support to the actions required, as set out in the Commission’s communication of 23 November 1994, and considered as one of the major goals the abolition of exclusive or special rights in this area. The European Parliament, in its Resolution of 14 December 1995 concerning the draft Commission Directive amending Directive 90/388/EEC with () OJ No L 192, 24. 7. 1990, p. 10. () OJ No L 256, 26. 10. 1995, p. 49. () OJ No C 188, 22. 7. 1995, p. 3. ) ©) (6) regard to mobile and personal communications (¥, welcomed this Directive in both its principles and its objectives. Several Member States have already opened up certain mobile communications services to compe- tition and introduced licensing schemes for such services. Nevertheless, the number of licences granted is still restricted in many Member States on the basis of discretion or, in the case of operators competing with telecommunications organizations subject to technical restrictions such as a ban on using infrastructure other than those provided by the telecommunications organization. Many Member States, for example, have still not granted licences for DCS 1800 mobile telephony. In addition, some Member States have maintained exclusive rights for the provision of certain mobile and personal communications services granted to the national telecommunications organization. Directive 90/388/EEC provides for the abolition of special or exclusive rights granted by Member States in respect of the provision of telecommuni- cations services. However, the Directive does not as yet apply to mobile services. Where the number of undertakings authorized to provide mobile and personal communications services is limited by Member States through the existence of special rights and a fortiori exclusive rights, these constitute restrictions which would be incompatible with Article 90 in conjunction with Article 59 of the Treaty whenever such limitation is not justified under specific Treaty provisions or the essential requirements, since these rights prevent other undertakings from supplying the services concerned, to and from other Member States. In the case of mobile and personal communication networks and services, the applicable essential requirements encompass the effective use of the frequency spectrum and the avoidance of harmful interference between radio-based, space-based or terrestrial  technical  systems. Consequently, provided that the equipment used to offer the services also satisfies these essential requirements, the current special rights and a fortiori exclusive (9 Resolution A4-0306/95.