Brussels, 18th March 2010
Telecoms: Commission requests information from Slovenia and Latvia over independence of telecoms regulators
The European Commission has decided to send a formal request for information to Slovenia over the independence of its national telecoms regulator Agencije za pošto in elektronske komunikacije (APEK). The Slovenian Government dismissed the director of APEK on 26 November 2009. The Commission is concerned that the rules by which this was done may not conform with EU rules that guarantee the independence of telecoms regulators. The request for information takes the form of a "letter of formal notice" under EU infringement procedures (Article 258 of the Treaty on the Functioning of the European Union). Slovenia has two months to reply. The Commission also decided to send a complementary formal request for information to Latvia over the lack of effective structural separation between regulatory and ownership functions following a transfer of telecoms regulatory tasks between Ministries.
Digital Agenda Commissioner Neelie Kroes said “Independent national regulators are essential for fair and effective regulation in a liberalised European single telecoms market and I will be vigilant to ensure all Member States comply with EU rules to guarantee regulators' independence."
According to EU telecoms rules, national authorities can only remove the heads of their telecoms regulatory bodies in very restricted circumstances. However, the Commission is concerned that in Slovenia, the Government may have too much discretion to remove the director of the national telecoms regulator, potentially undermining his or her protection against external intervention or pressure. The Commission's concerns have been accentuated by the fact that the Slovenian Government has continued to exercise its discretion to remove the head of the telecom regulator before the end of the normal term of office.
If the Commission receives no reply, or if the observations presented by the Slovenian Government are not satisfactory, the Commission may issue a reasoned opinion under EU infringement procedures (requesting Slovenia to amend its legislation to ensure full compliance with EU rules).
Concerns over structural separation in Latvia
The Commission also decided to send a complementary letter of formal notice to Latvia. In response to a reasoned opinion sent by the Commission in April 2009 (IP/09/569), the Latvian authorities announced a transfer of telecoms regulatory tasks from the Ministry of Transport to the Ministry of Regional Development and Local Government while the Ministry of Transport would retain the ownership and control of the relevant state-owned communications and network providers. Subsequently, the Latvian authorities confirmed that this transfer does not include the transfer of the supervision currently exercised by the Ministry of Transport over the Electronic Communications Office, which exercises a number of functions, in particular enforcement activities in the area of radio frequencies which are, according to EU rules, regulatory functions.
The Commission is therefore concerned that the Ministry of Transport, while exercising ownership and control functions, also remains involved in regulation through the continued supervision of the Electronic Communications Office. As a result, the measures put in place by the Latvian authorities may not be adequate to ensure effective structural separation between ownership and supervision, thus giving rise to a potential conflict of interest.
These infringement proceedings are part of the European Commission’s efforts to ensure that national telecoms regulators are independent. Under EU telecoms rules, Member States that retain ownership or control companies providing telecommunications services must ensure effective structural separation of the regulatory function from activities associated with ownership or control. These rules further provide that Member States shall ensure that national regulators exercise their power impartially and transparently.
The telecoms rules adopted in November 2009 (MEMO/09/513) further reinforced national telecoms regulators' independence by eliminating political interference in their day-to-day duties and by adding further protection against arbitrary dismissal for the heads of national regulators. It will be possible to dismiss the head of the national regulatory authority only if he/she no longer fulfils the conditions laid down in advance in national law. Such decision must furthermore contain a statement of reasons and be made public at the time of dismissal.
Apart from the Slovene and Latvian cases, the Commission has launched several cases concerning the independence of national telecoms regulators (Slovakia IP/09/775, Romania IP/09/165) or effective structural separation (Lithuania IP/09/1040, Romania IP/09/1624). These cases are currently pending.
A detailed overview of telecoms infringement proceedings is available at: