New EU Electronic Communications Code: interpretation & implementation

Throughout the past 20 years, the European Commission has been required to undertake a periodic review of the legislative framework which governs the functioning of telecommunications infrastructure and services markets to ensure that they reflect changing market conditions and incorporate new political objectives. The review undertaken between 2016 and 2018, and the European Electronic Communications Code (EECC) which is its result, represent the most significant review since 1998.

The EECC includes many changes which are likely to have little impact on the functioning of markets, and other areas remain largely unchanged. This CERRE Telecom issue paper, which was prepared for the CERRE Executive Seminar ‘New European Electronic Communications Code: Interpretation & Implementation’, considers three topics where changes in the EECC are expected to make a significant difference:

• The provision and consumption of digital services provided over communications infrastructures has changed significantly since the previous review, with the rapid growth of new digital messaging platforms displacing traditional means of communication such as voice telephony and SMS. This has led to concerns that consumers may not receive the same or an appropriate level of regulatory protection when they use new services, as well as complaints from providers of traditional services that the difference in regulatory treatment, or the ‘unlevel playing field’, places them at an unfair competitive disadvantage. The EECC includes a number of provisions which are intended to address these concerns and to ensure that the legislative framework keeps up with changes in consumption patterns and market developments.

• The Commission hope that Europe will be well advanced on the road to becoming a Gigabit Society by 2025. Achieving this will require the very extensive deployment of very high capacity fixed communications infrastructure and widespread availability of fifth generation mobile technologies. Much of the investment required to achieve the Gigabit Society targets is expected to be provided by private investors. The EECC will require the Commission itself, Member States and national regulatory authorities to promote, for the first time, access to and take up of very high capacity (VHC) networks and introduces a number of new tools and concepts which are intended to help them do so and to provide investors and operators with the incentives to make such investments.

• The EECC has had to address how the institutional framework for regulating communications markets will ensure that the legislative changes that are adopted are then implemented effectively. One aspect of this concerns the extent to which detailed rules should be embedded within the legislation itself or left to another body, such as BEREC. The EECC allocates substantially greater responsibilities and workload to BEREC as the regulatory environment becomes ever more complex. This means that national regulatory authorities increasingly find themselves operating under detailed guidelines of which they are co-authors but of which they must take utmost account. The other, related, aspect concerns the extent to which proposals by national regulatory authorities should be subject to oversight by the Commission itself, by BEREC or by a combination of the two. The EECC introduces novel institutional arrangements such as the ‘conjoint veto’ (Article 33(3)) and ‘peer review’ (Article 35). In other instances, BEREC is required to offer its opinion, to which the Commission must pay utmost regard (Article 38). How these institutional arrangements work in practice is likely to have a significant influence over the implementation of the EECC and the attainment of its objectives, not least for any residual hopes of greater harmonisation of regulation across Europe.

The Issue Paper provides an introduction to the three above-mentioned topics, together with some reflections on the legislative process itself.