04 Feb Back to BEREC
BEREC, the Body of European Regulators of Electronic Communications, was instructed by the directive, establishing the European Code of Electronic Communications, and by the regulation updating its functions, to publish, in 2019 and 2020, eleven guideline documents, intended to specify the scope of the provisions of the directive on specific points:
- The notification form, in accordance with article 12 of the Code; This is to prevent the acknowledgment of receipt of the initial activity notification made by the operator to the regulator from becoming as complicated to obtain as a license.
- The consistent implementation of the obligations in terms of geographic surveys and network deployment forecasts, according to 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 the obligations of sharing cables or fibres inside buildings or downstream of the first mutualisation point; we see here that a measure adopted in France with the 2008 law on the modernisation of the economy entered the European framework in 2018;
- Common approaches to the identification of the network termination point according to the different network topologies, according to Article 61 (3) of the Code; these second guidelines provided for in Article 61 aim to ensure the homogeneity of national regulations by a homogeneous description of the topology of fixed very high speed networks;
- Common approaches to meet transnational user demand, according to Article 66 of the Code; if the demand of individuals remains national (excluding roaming and international calls), that of companies is indeed multinational; the aim of these guidelines is to harmonize access offers for businesses in the member states of the Union;
- The minimum criteria to be met by the reference offers, according to Article 69 of the Code; this is about harmonizing the wholesale access and interconnection offers of the dominant operators;
- Support for a consistent application by regulators of the conditions of co-investment offers in optical fiber local loop networks (article 76 (1) and Annex IV of the Code; another French innovation entered into the Code, after very heated debates, certain countries, such as Germany, judging the French regulations to be far too restrictive for the incumbent operator;
- The criteria for a network to be considered very high capacity (article 82 of the Code);
- The criteria for managing numbering resources and the risk of their exhaustion (article 93 of the Code);
- The relevant parameters in terms of quality of service, methods of measuring this quality, content and format of quality of service information publications, mechanisms for certifying this quality (article 104 of the Code);
- Assessment of the effectiveness of public alerting systems (Article 110 (2) of the Code).
Over the next eleven weeks, we will explore these eleven guideline documents one by one, to synthesize their content, explain why the subject has become a priority point in the regulation of electronic communications in Europe, try to understand which strategy each family of actors has developed around each obligation and how the common body of telecom regulators of the EU member states has decided each debate.
If we take these guidelines in order of the articles of the European Code which instructs BEREC to develop and publish them, we start with the guidelines relating to the form for notifying operators to the national regulator. This notification is to be done before starting an activity, when modifying its list of activities or when ceasing its activities. The requirement of Article 12, paragraph 4, of the Code is to collect only the following information: i) the name of the supplier; (ii) the legal status, the form and the registration number of the supplier, where the supplier is registered in a public trade register or the like in the Union; (iii) the geographical address of the provider’s main establishment in the Union, where applicable, and, where applicable, of any secondary branch in a Member State; (iv) the provider’s website address, if any, associated with the provision of electronic communications networks or services; v) a contact person and contact details; vi) a brief description of the networks or services to be provided; (vii) the Member States concerned; and viii) an estimated date of starting the activity.
At first glance, the form recommended by BEREC to national regulators closely resembles the forms used so far by these same regulators. The general trend was nevertheless known: in Europe, the further south and the further east, the more complex the forms. In contrast, before leaving the European Union, the United Kingdom was the only member state of the Union not to require operators to notify their activity.
France plans to abolish this notification obligation on the occasion of the transcription into French law of the European Code of Electronic Communications. Staff savings at ARCEP, lack of usefulness of the list of operators for a regulator less active than others on compliance issues, these factors may have played a role in such a development in French law. However, the list of all those who will request numbering resources or frequencies should remain complete, including when they do not have operator status. Finally, an operator without a receipt for his declaration of activity may find it difficult to prove his status as an operator to obtain rights of way from a recalcitrant town hall.
What information can be found in certain national notification forms that cannot be found in the BEREC one? If we take the Spanish form, we find in particular:
- A commitment to submit to the Spanish courts,
- A commitment to respect the applicable requirements,
- Benefiting from exclusive rights to supply monopoly network services (water, gas, electricity, etc.),
- Documentation attesting to the signatory’s ability to act on behalf of the company,
- A more detailed list of services,
- Whether the service is produced or resold …
If we take the Polish form, we notice the following request which BEREC fortunately does not take up: in the event of the applicant’s establishment abroad, the Polish regulator requests proof that the address indicated is valid (copy of the lease or title of the premises of the establishment, translated into Polish by a sworn translator).
More generally, in these earlier forms, as in the BEREC guidelines, we find the request that all the documents provided be translated into the national language (except in Belgium or the Netherlands for English). And this despite requests from the American Chamber of Commerce in the European Union, which wants any notification to a European regulator to be made only in English.
Apart from the issue of language (national or English), these requests from a particular regulator have several causes:
- The fear that an operator established abroad considers himself beyond the reach of national justice, or not recognize, when the time comes, that he is subject to it,
- Distrust of false information from an applicant,
- A curiosity for the details of the services, the mode of their development (production or resale), the area served.
As much as curiosity can be satisfied by subsequent requests for information from the regulator, so much distrust of the address of a head office is misplaced, when it appears on the certificate of registration in the register. trade, as much the fear that an actor is de facto beyond the reach of the authorities in a country where it operates without being established can have a basis, even within the framework of judicial cooperation between the member states of the EU . And, the longer a chain of reselling a service, the more difficult it is to investigate the originator of a call or the publisher of a premium rate service.
Finally, kick the list of operators out the door, it will come back through the window: the ongoing projects in the United States, Canada and France on the authentication of telephone numbers presented by callers are leading to the implementation of security certificates unambiguously identifying the operator of the caller.