Member states agree on developing further cooperation in the electronic communications sector, on the condition that they maintain a certain amount of room for manoeuvre. This results from the negotiating mandate granted by the Committee of Permanent Representatives on Wednesday 11 October to the Estonian Presidency. Unsurprisingly, the text gets rid of the Commission’s idea of imposing licenses for periods exceeding 25 years.
Inter-institutional negotiations are therefore expected to begin by the end of the month, unless the European Parliament demands another vote on what was approved by the parliamentary committee responsible on 2 October (see EUROPE 11875). This would require one tenth of all MEPs to make an explicit request on 23 October next (Article 69 of the Parliament’s internal regulation).
Last minute change on co-investment
The negotiating mandate is 475 pages long and covers the four sections of the legislative proposal, namely, services, access, spectrum and institutional questions. It also incorporates the Presidency’s draft compromise, with the exception of the article on co-investments.
It should be pointed out that the Commission proposal sought to water down the rules on operators involved in co-investment, in an effort to encourage the development of new infrastructure. The Presidency compromise introduces further safeguards that enable the national regulatory authorities to check whether these offers were drafted in good-faith. The negotiating mandate also seeks to simplify the rules for operators who “provide agreements on market access to all operators during the life cycle of a network”.
With regard to the rest of the section on access, the negotiating mandate maintains the basic regulatory approach based on “significant market power” (SMP). It completes it, however, with a symmetrical regulation for all electronic communication network providers in certain situations. The Council’s mandate also introduces additional tools to help national regulatory authorities resolve problems that can occur in certain market circumstances, such as situations involving duopolies.
Services, spectrum and institutional aspects
The majority of amendments to the Commission text are guided by the wish of the member states to maintain a certain control. With regard to the section on “spectrum” in the proposal, the mandate proposes to mainly draw on the work carried out by the Radio Spectrum Policy Group (RSPG) for questions regarding coordination and harmonisation. It refuses to support the approach involving minimum duration for licenses and agrees to the introduction of a peer group review mechanism, whilst insisting that the use of this forum remains voluntary. In connection with the section on “institutional” aspects, the mandate reduces the role of the Office of the Body of European Regulators for Electronic Communications (BEREC) and replaces the reference to the “national regulators” with the “competent authorities”. Finally, in the part on “services”, the compromise replaces the distinction between the services “based on the number” and “irrespective of number” with an approach based on criteria. The document points out that, “this approach has helped to shift towards comprehensive harmonisation of final users’ rights, whilst allowing exceptions in domains where the member states need flexibility to tackle specific national questions”. It should also be pointed out that a supervisory mechanism has been introduced in this chapter, which will enable the Commission to introduce regulatory changes where it has observed shortcomings in areas affecting final users’ rights. The document is available at: http://www.consilium.europa.eu/en/press/press-releases/2017/10/11-new-eu-telecoms-rules/ (Original version in French by Sophie Petitjean)