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New round of infringement proceedings in electronic communications: What are the issues?

Commission Européenne - MEMO/07/114   22/03/2007

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MEMO/07/114

Brussels, 22 March 2007

New round of infringement proceedings in electronic communications: What are the issues?

How often has the Commission already launched infringement proceedings against Member States under the 2002 regulatory framework for electronic communications?

In total, since the entry into force of the regulatory framework for electronic communications, the Commission has opened proceedings under Article 226 of the EC Treaty against all 25 EU Member States in some 90 cases due to failures to implement correctly the regulatory framework.

What are the issues at stake in the March 2007 round of infringement proceedings?

1. Caller location information to emergency authorities

Principle

Telecommunications operators are obliged to provide, when they receive emergency calls from fixed and mobile phones, caller location information to emergency services, if technically feasible. This is to ensure that public safety answering points receive the most accurate information available about the caller's location. To guide the Member States in implementing this requirement, the Commission issued a Recommendatio[n]11 Commission Recommendation of the processing of caller location information in electronic communication networks for the purpose of location-enhanced emergency call services, C(2003)2657, 25 July 2003 in 2003. In March 2005[5] the Commission noted that from then onwards, they would regard the provision of caller location as technically feasible, since it was available in the majority of Member States.

Problem

Following the publication of the 11th Implementation Report (see IP/06/188), 13 cases have been opened against Member States concerning the non-availability of caller location information to emergency authorities for calls made from fixed and/or mobile phones. These concern Belgium, Greece, Ireland, Italy, Cyprus, Latvia, Lithuania, Luxembourg, Hungary, The Netherlands, Poland, Portugal, Slovakia. In the meantime, the cases against Ireland, Cyprus and Luxembourg have been closed.

Commission action

The Commission is now referring Italy, Lithuania, The Netherlands, Portugal and Slovakia to the European Court of Justice since there are still problems in the application of 112 in particular regarding caller location information for emergency calls.

Investigations are also still pending in the other Member States.

2. Failure to carry out market reviews

Principle

One of the cornerstones of the regulatory package on electronic communications is the process of market analysis and review of ex-ante obligations. Analysis and review of 18 relevant markets are required. If the market analysis of the national regulatory authority shows that there is no, or only limited, competition on certain electronic communications markets, then appropriate regulation should be imposed. If the market is effectively competitive, existing regulation should be withdrawn. National regulatory authorities must notify their findings for assessment to the Commission before implementing the proposed measures.

Without timely notification of the proposed measures by national regulatory authorities, there is a risk that the rules applicable to operators will no longer be appropriate for the level of competition in the relevant markets. This may result, in some cases, in operators being subject to regulatory obligations that are no longer justified by market conditions or consumer needs. Conversely, it may also lead to operators that are dominant in a relevant market not being subject to obligations that would ensure effective competition.

Problem

In October 2005, the Commission sent letters of formal notice to Belgium, the Czech Republic, Estonia, Cyprus, Latvia, Luxembourg and Poland for failing to notify the Commission of electronic communications market reviews as required by the regulatory framework (see IP/05/1269). Reasoned opinions, the second stage of infringement proceedings, were subsequently sent to Belgium, Latvia, Estonia and Latvia (see IP/06/464).

Commission action

Most Member States have substantially completed the market reviews. However, Estonia will be referred to the European Court of Justice as it is the only Member State that has failed to carry out most of the market analysis as specified in the Commission’s Recommendation on Relevant Markets.

3. Rights of way

Principle

The Framework Directive and the Authorisation Directives stipulate that when a relevant authority considers granting the right to install facilities using public property to an undertaking that is authorised to provide public communications networks, it must act transparently using publicly available procedures. These must be applied without discrimination, and without delay, and must follow the principles of transparency.

Problem

In July 2006, the Commission sent Cyprus a letter of formal notice for failure to grant "rights of way" concerning the fixed market (see IP/06/948).

Following a complaint for the mobile sector, the procedure for granting rights in Cyprus to install facilities have either not been fully applied or additional measures are needed to enable their correct application.

Commission action

The Commission is therefore sending a letter of formal notice to Cyprus.

4. Universal Service

Principle

Compliance with the European Union’s rules on the universal service in the electronic communications sector is a key element of the framework. These rules guarantee basic services for consumers such as connection and telephone services from a fixed location, public payphones, directory services and where appropriate, measures for disabled users with minimum levels of availability and affordability.

To this end, Member States may designate one or more undertakings to provide the universal service, and the EU’s Universal Service Directive stipulates that there should be no prior exclusion of telecoms operators from the possibility of being designated to offer such services.

Problem

The Commission expressed concerns as to whether this principle had been correctly transposed into the national laws of Finland. Following the adoption of new legislation abolishing prior exclusion the problem has now been solved.

Commission action

The Commission is therefore closing the case against Finland.

5. Transition to the new regulatory framework for electronic communications

Principle

To avoid any kind of legal vacuum, the Framework Directive on electronic communications provided that obligations imposed on operators under the previous regulatory framework should be maintained until the relevant markets have been reviewed under the new framework (see MEMO/06/271). Such legal certainty is crucial for private investment decisions and for creating competition.

Problem

In Luxembourg, the National Regulatory Authority had not verified the incumbent’s cost accounting system or published an annual statement of compliance, although this obligation is covered by the transitional regime.

Commission action

Since verification of the cost accounting system of the incumbent has finally started with the accounting year 2003, and statements of compliance for 2003, 2004 and 2005 have been recently published, the case against Luxembourg can be closed.

6. Non-conformity cases

Principle

Member States have to transpose correctly and comprehensively the electronic communications framework into their national legislation.

Problem

The transposition of the Universal Service Directive and the E-Privacy Directive was not fully compliant, and infringement proceedings were initiated against Germany in 2005. A third pending case concerns the Framework and Access Directives. However, legal uncertainties over the powers of the National Regulatory Authority still remain.

Commission action

Following amendments to the German telecommunications law, the cases concerning the Universal Service Directive and the ePrivacy Directive could be closed since the legislative amendments address the Commission’s concerns.

Commission action

Following amendments to the German telecommunications law, the cases concerning the Universal Service Directive and the ePrivacy Directive could be closed since the legislative amendments address the Commission’s concerns.

Where can I find further information on pending infringement proceedings concerning the electronic communications sector?
A complete overview of cases can be found on the implementation and enforcement website of the Information Society and Media DG:

http://ec.europa.eu/information_society/policy/ecomm/implementation_enforcement/

ANNEX

What is the EU regulatory framework for electronic communications?

The EU regulatory framework for electronic communications came into force in 2002 and consists of five Directives:

  • Framework Directive: outlines the general principles, objectives and procedures
  • Authorisation Directive: replaces individual licences by general authorisations to provide communications services
  • Access and Interconnection Directive: sets out rules for a multi-carrier marketplace, ensuring access to networks & services, interoperability, and so on
  • Universal Service Directive: guarantees basic rights for consumers and minimum levels of availability and affordability
  • e-Privacy or Data Protection Directive: covers protection of privacy and personal data communicated over public networks

Where can I find more information on the EU regulatory framework for electronic communications?

A complete overview of the electronic communications framework and policy can be found on the Electronic Communications website of Information Society and Media DG:

http://ec.europa.eu/information_society/policy/ecomm/


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