The new European Electronic Communications Code marks the rise of BEREC, the common body of national regulators

21 Jan The new European Electronic Communications Code marks the rise of BEREC, the common body of national regulators

From several Directives to one Code

On 17 December, two texts were published in the Official Journal of the European Union, revising the regulatory framework for electronic communications in Europe. The four Directives comprising this framework (Framework Directive, Authorizations Directive, Access Directive and Universal Service and Consumer Rights Directive) have been incorporated into the European Code of Electronic Communications (EECC). The notion of the Code, well known in the countries that adopted the Napoleonic code in its time, is gaining ground in European law.

A reinforced BEREC

The previous overhaul of the European regulatory framework for electronic communications in 2009 created the BEREC (Body of European Regulators of Electronic Communications). Along with the Code has been adopted a regulation that reinforces the role of BEREC. BEREC remains composed of a Board of Regulators and Working Groups, but by default the decisions of this Board are adopted by a simple majority, and no longer by a two-thirds majority. However, the main changes to BEREC’s role lie in the impressive list of electronic communications policy documents, which in the previous framework would have been produced by the European Commission and will now be produced by BEREC.

To the Commission, the heart of the historical framework and the measures of political unity towards industry

With the Code, the European Commission retains an important role in the establishment of the European policy on electronic communications: the so-called recommendation on relevant markets (that are likely to be regulated a priori, and not a posteriori as under competition law), the guidelines on the criteria of significant market power and the convergence of the level of call termination, which remain the domain of the Commission, constitute the heart of the competition law exception that European electronic communications law represents. The Commission also maintains its leading role on two of the EU’s flagship policies: the regulation of wholesale and retail roaming prices within the single market and net neutrality. These two measures are indeed both consensual between the member states and perceived as very hard by all or part of the industry. However net neutrality implementation of the EU regulation is defined by BEREC guidelines.

To BEREC, new topics and disagreements between member states on telecoms policy

The European Code of Electronic Communications has given BEREC an impressive role in defining European policy: no fewer than 14 sets of guidelines are to be prepared and published by BEREC between 2019 and 2020, including 11 directly mandated by the Code:

• The notification form, according to Article 12 of the Code; this is to prevent the acknowledgment of receipt of the initial notification of activity made by the operator to the regulator becomes as complicated as obtaining a license.
• Consistent implementation of the requirements for network geographic surveys and deployment forecasts, in accordance with Article 22 of the Code;
• The relevant criteria for the implementation of Article 61 (3) of the Code; Article 61 defines the roles of regulators in terms of access and interconnection. Its paragraph 3 deals with obligations for sharing cables or fibres inside buildings or downstream from the first mutualisation point. We see here that a measure adopted in France with the law of modernization of the economy of 2008 entered the European framework in 2018;
• Common approaches to the identification of the network termination point according to different network topologies, according to Article 61 (7) of the Code; these second guidelines provided for in Article 61 aim to ensure the consistency of national regulations by a homogeneous description of the topology of very high-speed fixed networks;
• Common approaches to meet the transnational user demand, according to Article 66 of the Code; if the demand of individuals remains national (excluding roaming and international calls), that of businesses is indeed multinational; the purpose of these guidelines is to harmonize access offers for companies in the EU Member States;
• The minimum criteria to be met by reference offers, according to Article 69 of the Code; this is to harmonize the wholesale access and interconnection offers of dominant operators;
• Support for a consistent enforcement by regulators of the conditions for co-investment offers in fibre-optic local loop networks (Article 76 (1) and Annex IV of the Code); again, a French innovation entered into the Code, after very heated debates, some countries, such as Germany, judging the French regulation far too constraining for the incumbent operator;
• criteria for a network to be considered of very high capacity (Article 82 of the Code); this is important because only investment in such networks can be open to co-investment;
• The criteria for managing numbering resources and the risk of their exhaustion (Article 93 of the Code);
• Relevant quality of service parameters, methods for measuring quality, content and format of quality of service information publications, certification mechanisms of this quality (Article 104 of the Code);
• Evaluation of the effectiveness of public warning systems (Article 110 (2) of the Code).

In addition to these eleven BEREC guideline requirements established by the Code, there are three additional requirements instituted by previous documents:

• Wholesale roaming access (Article 3 (8) of Regulation 531/2012);
• Regulators’ implementation of open access obligations to the Internet (Article 5 (3) of Regulation 2015/2120);
• The parameters to be taken into account by the regulators to assess whether or not roaming is free on the retail market (Article 5a (6) of Regulation 2015/2120).

Six of the eleven sets of guidelines entrusted to BEREC, the most harmless ones, were already provided for in the draft Code published in 2016 by the European Commission, but, in the course of the debates in Parliament and with the Council, five other sets have been added, including those on the sharing of internal wiring, the location of the network termination point, the conditions for co-investment in fibre  local loops and the definition of very high capacity networks, subject of this co-investment between competing operators. These four additions promise sharp discussions among the BEREC regulators. The outcome of these discussions will depend in particular on the optional nature or not, for European operators of optical fibre networks, of the main characteristics of the model invented by France: mutualisation of the terminal segment by co-investment of operators and / or local authorities. However, the French model came up under very precise conditions: a weak cable operator, a copper network ill-suited to VDSL, strong local authorities eager to take the role of infrastructure operators. In the event of a disagreement, will the main tenets of this model hold firm? Or will there be an opening to regulatory holidays for the construction of new networks, as Deutsche Telekom is advocating in Germany? The new missions entrusted to BEREC have been the means to get the Code adopted by the European legislature which is now ending, leaving it to the regulators’ club to harmonize the most difficult subjects.