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1. Network operators and public sector bodies owning or controlling physical infrastructure shall meet, upon written request of an operator, all reasonable requests for access to that physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of VHCNs or associated facilities. Public sector bodies owning or controlling physical infrastructure shall meet all such reasonable requests 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. Member States may specify detailed requirements relating to the administrative aspects of the requests.

2. Upon request of an operator, legal persons who are primarily active as tenants of land, or as holders of rights over land, other than property rights, on which facilities are planned to be or have been installed with a view to deploying elements of VHCNs, or who manage lease contracts on behalf of land owners, and operators shall negotiate access to such land in good faith, including on the price, which where appropriate shall reflect market conditions, in accordance with national contract law. Operators and legal persons referred to in the first subparagraph of this paragraph shall inform the national regulatory authority of the conclusion of agreements reached in accordance with the first subparagraph, including the agreed price. Member States may provide guidance on the terms and conditions, including the price, in order to facilitate the conclusion of such agreements.

3. Member States may provide that owners of private commercial buildings which are not owned or controlled by a network operator are to meet, upon the written request of an operator, reasonable requests for access to those buildings, including their rooftops, with a view to installing elements of VHCNs or associated facilities under fair and reasonable terms and conditions, and at a price reflecting market conditions. Prior to such a request from the access seeker all of the following conditions shall be met:

(a) the building is located in a rural or remote area as defined by Member States;

(b) there is no VHCN of the same type — fixed or mobile — as that the access seeker intends to deploy available in the area for which the request for access is made, and there is no plan to deploy such a network according to the information collected via the single information point available at the date of the request, (c) there is no 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 VHCNs.

Member States may determine a list of categories of commercial buildings that may be exempt from the obligation to meet such an access request, for reasons of public security, defence, safety and health. That list and the criteria to be applied to identify those categories shall be published via a single information point.

4. When determining fair and reasonable terms and conditions, including prices, for granting access, and in order to avoid excessive prices, network operators and public sector bodies owning or controlling physical infrastructure shall, where relevant, take into account at least the following:

(a) existing contracts and commercial terms and conditions agreed between operators seeking access and network operators or public sector bodies granting access to physical infrastructure;

(b) 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, 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 are also to be taken into account;

(c) any additional maintenance and adaptation costs resulting from providing access to the relevant physical infrastructure;

(d) 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;

(e) in the specific case of access to physical infrastructure of operators, any relevant guidance pursuant to paragraph 13, and in particular:

(i) the economic viability of those investments based on their risk profile;

(ii) the need for a fair return on investment and for any time schedule for such return on investment;

(iii) any impact of access on downstream competition and consequently on prices and return on investment;

(iv) any depreciation of the network assets at the time of the access request;

(v) any business case underpinning the investment at the time it was made, in particular investment in the physical infrastructure used for the provision of connectivity; and (vi) 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;

(f) when considering the operators’ need for a fair return on investment which reflects the relevant market conditions, their different business models, in particular in the case of undertakings that primarily provide associated facilities and offer physical access to more than one undertaking that provides, or that is authorised to provide, public electronic communications networks.

5. 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:

(a) the physical infrastructure to which access has been requested is not technically suitable to host any of the elements of VHCN referred to in paragraph 1;

(b) there is a lack of availability of space to host the elements of VHCNs or associated facilities referred to in paragraph 1, including after taking into account the future need for space of the access provider that is sufficiently demonstrated, such as by referring to publicly available investments plans or to a consistently applied percentage for the capacity reserved for future needs, compared to the entire capacity of the physical infrastructure;

(c) the existence of justified reasons regarding safety, national security and public health;

(d) the existence of duly justified reasons regarding the integrity and security of any network, in particular national critical infrastructure;

(e) the existence of a duly justified risk of serious interferences of the planned electronic communications services with the provision of other services over the same physical infrastructure;

(f) the availability of viable alternative means of passive wholesale physical access to electronic communications networks, suitable for the provision of VHCNs, and offered under fair and reasonable terms and conditions, that are provided by the same network operator or, in the specific case of rural or remote areas where a network is operated on a wholesale-only basis and owned or controlled by public sector bodies, that are provided by the operator of such network.

6. Member States may provide that the network operators and public sector bodies owning or controlling physical infrastructure may refuse access to specific physical infrastructure where there are viable alternative means of non-discriminatory open wholesale active access to VHCNs that are provided by the same network operator or by the same public body, provided that both of the following conditions are met:

(a) such alternative means of wholesale access is offered under fair and reasonable terms and conditions, including price;

(b) the deployment project of the requesting operator addresses the same coverage area and there is no other fibre network connecting end-user premises serving the coverage area. This paragraph shall apply only to those Member States where such or an equivalent refusal possibility is applied on 11 May 2024, in accordance with national law complying with Union law.

7. In the event of a refusal to provide access as referred to paragraphs 5 and 6, 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 no later than one month from the date of the receipt of the complete request for access, except for national critical infrastructure as defined in national law, for which specific and detailed reasons shall not be required in the communication of refusal to the access seeker.

8. Member States may establish or designate 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, and facilitate the provision of information via a single information point as referred to in Article 12.

9. 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 1, 4, and 5 for as long as such access obligations are in place.

10. Public sector bodies owning or controlling physical infrastructure or certain categories of physical infrastructure may not apply paragraphs 1, 4 and 5 to that physical infrastructure or those categories of physical infrastructure for reasons of architectural, historical, religious or environmental value or for reasons of public security, defence, safety and health. Member States or, as appropriate, regional and local authorities shall identify such physical infrastructure or categories of physical infrastructure in their territories based on duly justified and proportionate reasons. The list of categories of physical infrastructure and the criteria applied to identify them shall be made available via a single information point.

11. 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.

12. Notwithstanding paragraph 3, 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, or, where applicable, the rights of tenants.

13. After consulting stakeholders, the national dispute settlement bodies and other competent Union bodies or agencies in the relevant sectors as appropriate, and taking into account well-established principles and the distinct situation across Member States, the Commission may, in close cooperation with BEREC, provide guidance on the application of this Article.