Regulatory framework for electronic communications
To accompany the opening up of the telecommunications market to competition, the European Union (EU) has adopted a regulatory framework with regard to electronic communications in line with technological progress and market requirements.
This ‘framework directive’ seeks primarily to:
— strengthen competition in the electronic communications sector;
— stimulate investment;
— foster freedom of choice for consumers and enable them to benefit from innovative services, quality and lower rates.
In particular, it lays down the tasks of the national regulatory authorities (NRAs), as well as the principles underpinning their operations.
It is part of the ‘Telecoms Package’, adopted in 2002 and amended in 2009 to take account of the rapid development of the sector. This package includes four ‘specific’ Directives which regulate specific aspects of electronic communications, as well as two Regulations:
— Directive 2002/20/EC or ‘Authorisation Directive’;
— Directive 2002/19/EC or ‘Access Directive’;
— Directive 2002/22/EC or ‘Universal Service Directive’;
— Directive 2002/58/EC or ‘Directive on privacy and electronic communications’;
— Regulation (EC) No 1211/2009 establishing a Body of European Regulators for Electronic Communications (BEREC);
— Regulation (EU) No 531/2012 on roaming on public mobile communications networks.
The Directive establishes a harmonised framework for the regulation of electronic communications networks, i.e. transmission systems which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed and mobile terrestrial networks, electricity cable systems, networks used for radio and television broadcasting and cable television networks, irrespective of the type of information conveyed.
It also covers electronic communications services, which consist of the transmission of signals over these networks, and associated facilities and services of the networks or of the electronic communications services, which enable or support the provision of services via that network or service.
On the other hand, the content of services delivered over electronic communications networks, such as broadcasting content, are excluded from the scope of the Directive. The same applies to telecommunications terminal equipment, with the exception of aspects which enable facilitated access for disabled users.
National regulatory authorities (NRAs)
The principles underpinning the operations of the NRAs are:
— independence: the NRAs must be legally separate from and independent of all organisations providing electronic communications networks, equipment or services;
— right of appeal: effective national mechanisms must enable any user or supplier of electronic communications networks or services who is affected by the decision of a NRA to appeal to an independent body;
— impartiality and transparency: the NRAs must exercise their power in an impartial and transparent manner, and must also put in place mechanisms for consulting interested parties when they are considering taking steps which may impact heavily on the market.
The main tasks of the NRAs are as follows:
— to promote competition in the provision of electronic communications networks and services. They also ensure that users derive maximum benefit from this competition in terms of choice, price and quality;
— to contribute to the development of the internal market for electronic communications, in cooperation with the European Commission and BEREC;
— to promote the interests of European citizens i) by ensuring that all citizens have access to a universal service; ii) by ensuring a high level of protection for consumers in their dealings with suppliers, particularly by ensuring the availability of simple and inexpensive dispute resolution procedures; iii) by helping to ensure a high level of protection of personal data and privacy; iv) by encouraging the provision of clear information, particularly by requiring transparency of tariffs and of the conditions of using publicly available electronic communications services; v) by addressing the needs of specific social groups, in particular disabled users; and vi) by ensuring the security of communications networks.
The Directive also covers other aspects, concerning both the substance of the regulation of electronic communications networks and services, and the procedures needed for its implementation.
The following provisions belong to the first category:
— the assignment of radio frequencies and numbering resources;
— the strategic planning, coordination and harmonisation of radio spectrum in the European Union;
— rights of way for the roll-out of networks and associated facilities;
— the sharing of network elements and associated facilities;
— the security and integrity of networks and services;
— standardisation designed to promote the harmonised provision of electronic communications networks and services and associated facilities and services;
— the interoperability of digital television services.
The second category, on the other hand, covers:
— control over powerful companies on the market and the procedure for the consistent application of solutions;
— procedures for defining and analysing relevant markets, which take into account the Commission’s
Recommendation and Guidelines in this field;
– the Commission’s Recommendations to EU countries with regard to harmonising the implementation of the provisions of this Directive and of the Specific Directives;
— the settlement of disputes between undertakings providing electronic communications networks or services, including the Regulation on cross-border disputes.
Finally, the EU countries shall lay down the rules on penalties applicable to infringements of the provisions of this Directive.
Common Regulatory Framework
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (‘framework directive’).
Successive amendments and changes to Directive 2002/21/EC have been incorporated in the original text. This
Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ L 108 of 24.4.2002, pp. 7-20).
Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ L 108,24.4.2002 of pp. 21-32).
Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108 of 24.4.2002, pp. 51-77).
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201 of 31.7.2002, pp 37-47).
Commission Recommendation 2007/879/EC of 17 December 2007 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 344 of 28.12.2007, pp. 65-69).
With this Recommendation, the Commission establishes a list of 7 markets which will need to be analysed by national regulators. Several markets have been removed from this list in relation to the 2003 Recommendation due to effective wholesale regulation and to the development of effective competition in retail markets.
Commission Recommendation 2008/850/EC of 15 October 2008 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 301 of 12.11.2008, pp. 23-32).
Commission Recommendation 2009/396/EC of 7 May 2009 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU (OJ L 124 of 20.5.2009, pp. 67-74).
With this Recommendation, the Commission advises the NRAs on how to proceed in order to set termination rates symmetrically based on the costs incurred by operators.
Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (OJ L 337 of 18.12.2009, pp. 1-10).
Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (OJ L 337 of 18.12.2009, pp. 11-36).
Commission Recommendation 2010/572/EU of 20 September 2010 on regulated access to Next Generation Access Networks (NGA) (OJ L 251, 25.9.2010 of pp. 35-48).
Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (OJ L 172 of 30.6.2012, pp. 10-35).
Commission Recommendation 2013/466/EU of 11 September 2013 on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment (OJ L 251 of 21.9.2013, pp 13-32).
Proposal for a Regulation of the European Parliament and of the Council laying down measures concerning the European single market for electronic communications and to achieve a Connected Continent, and amending Directives 2002/20/EC, 2002/21/EC and 2002/22/EC and Regulations (EC) No 1211/2009 and (EU) No 531/2012 [COM(2013) 627 final – Not published in the Official Journal].
The general objective of the Proposal is to move towards a single market for electronic communications, in which:
suppliers of electronic communications networks and services are able to establish, extend and operate their networks and provide services, regardless of their place of establishment and that of their clients in the Union, and are encouraged to do so;
individuals and businesses are able to effectively access competitive, safe and reliable electronic communications services, regardless of their place of supply in the Union, without this supply being hampered by cross-border restrictions or unjustified additional costs.
Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks (OJ L 155 of 23.5.2014, pp. 1-14).
The Directive aims to facilitate and encourage the deployment of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure and by enabling a more efficient deployment of new physical infrastructure in order to reduce the costs associated with setting up these networks.
Authorisation of electronic communications networks and services
This directive creates a legal framework to ensure the freedom to provide electronic communications networks and services throughout the European Union.
Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive)
The authorisation directive is part of the ’telecoms package’ which, with 4 other directives (‘framework’, ‘access’, ‘universal service’ and ‘privacy and electronic communications’), defines the regulatory framework that aims to make the electronic communications networks and services sector more competitive.
In 2009, the telecoms package was amended by the better regulation and the citizens’ rights’ directives, as well as by the creation of the Body of European Regulators for Electronic Communications (BEREC).
Scope, objective and general principle
The directive covers authorisations for all electronic communications networks and services, whether they are provided to the public or not. It applies to the granting of rights to use radio frequencies where such use involves the provision of an electronic communications network or service, normally for remuneration.
The aim is to harmonise the market for electronic communications networks and services by limiting regulation to the minimum necessary.
The main innovation is the replacement of individual licences by a general authorisation for all electronic communications networks or services, alongside a special scheme for attributing frequencies and numbers.
Thus the provision of electronic communications networks or services may only be subject to a general authorisation without the need to obtain an explicit decision or any other administrative act by the national regulatory authority (NRA), thus limiting the procedure to just one notification for the companies concerned.
Rights derived from the general authorisation
The general authorisation gives companies the right to provide electronic communications networks and services. When they provide electronic communications networks or services to the public, they are entitled to:
— negotiate interconnection with other providers in the EU;
— obtain access to or interconnection from other providers; and
— be designated to provide certain universal service functions.
Rights of use for radio frequencies and numbers
EU countries shall facilitate the use of radio frequencies under general authorisations but, where necessary, may make the use of radio frequencies subject to the grant of individual rights with a view to:
— avoiding harmful interference;
— ensuring the technical quality of service;
— safeguarding efficient use of spectrum;
— fulfilling other general interest objectives defined by EU countries.
The rights of use for radio frequencies and numbers must be granted through open, objective, transparent, non-discriminatory and proportionate procedures.
Decisions on rights of use must be taken and made public as soon as possible after receipt of the complete application by the NRA.
Conditions attached to the general authorisation and to specific rights of use
The general authorisation and the rights of use may be subject only to the conditions listed in the annex to the directive, for example:
— financial contributions to the funding of universal service;
— interoperability of services and interconnection of networks;
— accessibility and portability of numbers, where portability means that users may keep their telephone number when they change operator;
— environmental and town and country planning requirements;
— personal data and privacy protection;
— the obligation to transmit certain television and radio programmes (‘must carry’);
— the possible imposition of administrative charges on undertakings;
— restrictions concerning the broadcast of illegal content.
Limiting the rights of use for radio frequencies
Granting of limited rights of use for radio frequencies must be subject to objective, transparent, non-discriminatory and proportionate selection criteria.
EU countries may limit the number of rights of use to be granted for radio frequencies or extend the duration of existing rights, subject to certain conditions and procedures, such as consultation of all interested parties, publication of any decisions, together with the reasons for it, and the review, at reasonable intervals, of the limitation.
Where an EU country concludes that further rights of use for radio frequencies can be granted, it must publish that conclusion and invite applications for such rights.
Compliance with conditions
The NRAs monitor and supervise compliance with the requirements of the general authorisation or of rights of use and specific obligations. Where an undertaking does not comply with one or more of these conditions and does not remedy the breaches within the set period, the relevant authorities may be empowered to impose orders to cease the breach or financial penalties. In cases of serious and repeated breaches, they may prevent an undertaking from continuing to provide a network or service or suspend or withdraw rights of use.
Administrative charges and fees
The NRAs may impose administrative charges on companies providing a service or a network under the general authorisation or to whom a right of use has been granted. These charges shall cover costs incurred in the management, control and enforcement of the general authorisation scheme and of rights of use and specific obligations, and may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as other regulatory work. Their imposition requires NRAs to publish a yearly overview of their administrative costs and of the total sum of the charges collected.
The competent authority may also charge a fee for the rights of use of radio frequencies and for rights to install facilities.