On the night of 22-23 May, the co-legislators reached provisional political agreement on the access section of the electronic communications code.
The partial, temporary agreement comes on top of the agreement reached on the spectrum in March and paves the way for final agreement at the inter-institutional negotiations on 5 June.
The draft directive rehashes the 2002 framework directive, the authorisation directive, the access directive and the universal service directive (see EUROPE 11624). At this stage, seven trialogues have been organised on the 2016 proposal aiming to introduce greater predictability and legal certainty in order to encourage investment (see EUROPE 11624).
On Tuesday, the trialogue lasted nearly six hours, ending at 1am. It managed to temporarily settle the question of co-investment (Article 74) and oligopolies Articles 59(2) and 61).
Co-investment. The European Commission considered easing the rules for operators pledging to co-invest in order to encourage the development of new infrastructure.
The co-legislators have introduced new safeguards to the Article, agreeing to add a type of ‘reality test’ whereby the regulatory burden would not be lifted by the regulatory authorities unless an alternative operator accepts the co-investment agreement.
After a two-hour discussion, the concept of ‘co-investment’ was fleshed out in order to distinguish it from a simple commercial agreement. The co-legislators stress, for example, that this notion involves either co-ownership or a sharing of long-term risks via co-financing or a purchase agreement.
The provisional agreement notes that the co-investment regime is restricted to very high-capacity networks.
Oligopolies. On the question of oligopolies, the provisional agreement allows national regulators to intervene, under the 'guidelines on significant market power,' as long as the situation affects users and the regulator notes a lasting problem preventing another operator from replicating the network of an existing player.
Upon request from the European Parliament, the provisional agreement introduces a ‘double-veto’ mechanism that would apply to these two measures.
The mechanism requires the national regulatory authority (NRA) to provide the Commission with its analysis and remedies it is considering, and the Commission and European Regulators’ Body would have the option of reacting within one month and six weeks respectively. The Commission would have three months to demand that the NRA amend or withdraw its plans.
The co-legislators decided not to extend the authorisation regime to services not using numbers (WhatsApp, for example), and foresee a short-term (two-year) review clause for these specific measures.
Next trialogue
Given the progress achieved to date, the co-legislators decided to drop the idea of an extra trialogue meeting. The next talks will take place on 5 June and are expected to settle the last outstanding issues, viz. universal service, the rights of end-users, network security and international calls. (Original version in French by Sophie Petitjean)