Telecoms markets in the European Union, liberalised in the 1990s, are highly regulated. The key objective of Europe’s legislative framework is to ensure that national regulators in the sector allow other operators to go into business alongside the former national monopolies. The European Commission nevertheless failed on different occasions to obtain the powers it was seeking, in particular to be able to take measures itself against dominant operators who fail to conform to anti-trust rules. The European range of regulations guaranteeing liberalisation of the sector is nevertheless substantial. The whole European information and communication technologies (ICT) market, which is evolving ceaselessly with the explosion of mobile telephony and high-speed internet, is now the focus of regulatory updates and new initiatives to facilitate the movement of goods and services, especially online, to boost competition, bring prices down and encourage investment. Legislation, however, always lags behind technological progress and the field is vast. The state of play for now is as follows.

TELECOMS PACKAGE

In 2009, the Union renewed its telecoms rules, which had not evolved since 2002, to help stimulate competition and protect consumers. It adopted a legislative package that includes the following measures:

- Directive 2009/140/EC amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to and interconnection of electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services.

This directive provides rules whereby national regulators may impose a ‘functional separation’ between networks and commercial services operated by the ex-monopolies if the latter drag their feet on providing access to their infrastructure. Most of the former monopolies see this as a drastic and extremely invasive remedy. However, functional separation may only be imposed as a last resort.

- Directive 2009/136/EC amending Directive 2002/22/EC on universal service and users’ rights, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy and Regulation (EC) 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws.

- Regulation (EC) 1211/2009 establishing the Body of European Regulators for Electronic Communications (BEREC). The role of this agency, based in Riga, Latvia, is to assist the Commission with monitoring enforcement of the new rules, particularly on competitors’ access to the networks of former telecoms monopolies, which the member states must apply by May 2011.

ROAMING REGULATION

Europeans learned the meaning of the term ‘roaming’ in 2007, when former Information Society Commissioner Viviane Reding decided to tackle the high rates charged for cell phone communications outside national borders. This was one of the main success stories of the Barroso I Commission. The idea was to lower prices by 60% to 70% for cell phone calls made or received in an EU member state other than the state in which the user’s operator is established.

- Regulation (EC) 544/2009 amending Regulation (EC) 717/2007 on roaming on public mobile telephone networks within the Community and Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services.

The first regulation on tariffs entered into force in 2007 and set ceilings that decrease annually. A year later, the EU amended the text to add ceilings for SMS tariffs and to impose transparency rules on the industry. Operators are obliged, for example, to provide information to consumers who use their cell phones to consult internet in the EU other than their state of residence, and to cut off the connection once a certain level of consumption has been reached, to avoid exorbitant bills.

PERSONAL DATA

- Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

- In the telecommunications sector, Directive 97/66/EC adds further details to Directive 95/46/EC.

The Commission plans a recast of the 1995 directive, which sets the standard at European level in terms of protection of personal data. The text needs to be adapted to the age of social networks and the posting of personal information on the internet, with the risks such practices represent to Europeans’ privacy. Another area to be explored is the duration of data storage on the internet. National data protection regulators have been critical of Google, Yahoo! and Microsoft on a number of occasions for exceeding a recommended period of six months’ storage before making the data anonymous.

COPYRIGHT

- Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

EU legislation on copyright in the information society, debated intensely by champions of intellectual property on the internet, on the one hand, and advocates of internet users’ freedom on the other, dates back to 2001. In terms of technological developments, that is close to eternity. With the explosion of high-speed internet, peer-to-peer (computer-to-computer) exchanges of protected works downloaded from illegal sites has become routine, as the pro-copyright and pro-users camps continue to battle it out at national and European levels and to call for EU action. The Commission remains cautious at this stage, neither ruling out nor giving precedence to any particular possibility or legal instrument. Its aim is above all to facilitate the marketing of legal content by encouraging the creation of transnational and pan-European licences. Copyright is currently managed at member state level.

RADIO FREQUENCIES

- Directive 87/372/EEC, or GSM Directive, on the use of frequency bands reserved for mobile communications.

The radio frequency spectrum, a rare resource, is highly sought after by mobile telephony operators and the electronics sector. Public television broadcasters, which are under pressure, are clinging to their frequencies set to be freed up soon with the switchover to digital TV across Europe. The subject is complex and sensitive because frequencies are used for many other uses, often public, such as defence, health, transport and Earth observation. The telecoms package makes provision for the launch of a multi-annual programme on more flexible management of the frequency spectrum, managed to date by member states. For now, the EU is adopting one-off decisions to harmonise the use of a given frequency (eg, the 2009 decision on the use at European level of the 900 MHz and 1,800 MHz bands by satellite operators to provide pan-European mobile services). One of the major achievements in this area is the GSM Directive adopted in the late 1980s, which regulates the use of bands reserved for mobile phone use in the EU.

Legislation, however, always lags behind technological progress and the field is vast

New Commission proposals

15 September 2010

- Recommendation on harmonised regulation of next generation networks

- Proposal for a European Parliament and Council decision on Radio Spectrum Policy Programme (RSPP)

- Communication on ‘European broadband: Investing in digitally driven growth’

29 September 2010

- Regulation on a modernised agency for network and information security

- Regulation amending Regulation (EC) No 460/2004 establishing the European Network and Information Security Agency as regards its duration