Today's Official Journal of the European Union contains the two EC Directives amending the regulatory framework for electronic communications, and the EC Regulation establishing BEREC.

The BEREC Regulation enters into force within 20 days, i.e. on 7 January 2010, but it is clear that the European Regulators Group will continue to operate in parallel for a considerable period of time. 

The Directives enter into force tomorrow (19 December 2009), with a deadline for transposition into the national law of the Member States on 25 July 2011.  

Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 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. 

Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws.

Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office.

The European Commission has also adopted a Decision amending the Decisions establishing the Radio Spectrum Policy Group. 

Commission Decision 200/987/EU of 16 December 2009 amending Decision 2002/622/EC establishing a Radio Spectrum Policy Group.

The package published today also includes a European Commission "Declaration on Net Neutrality", which reads as follows: 

The Commission attaches high importance to preserving the open and neutral character of the Internet, taking full account of the will of the co-legislators now to enshrine net neutrality as a policy objective and regulatory principle to be promoted by national regulatory authorities (1), alongside the strengthening of related transparency requirements (2) and the creation of safeguard powers for national regulatory authorities to prevent the degradation of services and the hindering or slowing down of traffic over public networks (3). The Commission will monitor closely the implementation of these provisions in the Member States, introducing a particular focus on how the ‘net freedoms’ of European citizens are being safeguarded in its annual Progress Report to the European Parliament and the Council. In the meantime, the Commission will monitor the impact of market and technological developments on ‘net freedoms’ reporting to the European Parliament and Council before the end of 2010 on whether additional guidance is required, and will invoke its existing competition law powers to deal with any anti-competitive practices that may emerge.

(1) Article 8(4)(g) Framework Directive.

(2) Articles 20(1)(b) and 21(3)(c) and (d) of the Universal Service Directive. 

(3) Article 22(3) of the Universal Service Directive.

For a discussion of these matters, please contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it . 

Late this afternoon, the European Court of Justice published it's Judgment in the case opposing the European Commission and Germany.

The case relates to the 'emerging markets' clause which was introduced as § 9a (Regulierung neuer Märkte) in the German Telecommunications Act in February 2007.

The key paragraph 108 of the Judgment is as follows:

It follows from all of the foregoing considerations that, by adopting Paragraph 9a of the TKG, the Federal Republic of Germany has failed to fulfil its obligations under Article 8(4) of the Access Directive, Articles 6 to 8(1) and (2), 15(3) and 16 of the Framework Directive and Article 17(2) of the Universal Service Directive. 

The full text of the Judgment can be accessed by clicking here.

For background on this case, please search on Germany on this website. We covered the details extensively in 2006/7.

This morning, the European Parliament voted the Telecoms Package (in third and final reading): 510 votes in favour, 40 against, 21 abstentions.

This follows the adoption of various elements of the package by Council by decisions taken on 26 Oct 2009 and 20 Nov 2009. 

At the press conference held in the European Parliament, satisfaction was expressed by the Rapporteurs and by the Chairman of the Conciliation Committee, as well as by Commissioner Viviane Reding. 

  The revised EU directives will be officially signed by the President of the European Parliament and the Presidency of Council on 25 Nov 2009, followed by publication in the Official Journal in the next few weeks (expected on 18 Dec 2009), with a deadline for transposition in national law of the Member States 18 months after publication (June 2011).    

Outstanding issues, and outright disagreement, have already emerged, as follows:

Catherine Trautmann stated very clearly that Net Neutrality would come back on the agenda, and would be debated in Parliament in 2010. She added that 'we need to see clearly on this topic, on the basis of 'monitoring' conducted by the European Commission' and that 'it is not appropriate to simply take over elements from across the Atlantic'.

Groups of Member States made two declarations: 

• European Commission powers over regulatory obligations ('remedies'): Austria, Estonia, Finland, Germany, Greece, Ireland, Italy, Latvia, Malta, Poland, Portugal, Slovakia, Spain and United Kingdom issued a joint statement, declaring that the scope of the European Commission’s decision-making powers under Article 19 of the Framework Directive by reference to Articles 15 and 16 of the Framework Directive is limited to matters concerning market definition, assessment of significant market power and the effect of market analysis on whether obligations should be imposed or not on undertakings but does not extend to the choice and design of remedies under Articles 8 of the Access Directive or Article 17 of the Universal Service Directive.

• Privacy (consent for cookies): Austria, Belgium, Estonia, Finland, Germany, Ireland, Latvia, Malta, Slovakia, Spain and United Kingdom issued a joint statement (not further discussed here). 

At the press conference held over lunch today, Commissioner Reding stated forcefully that declarations by Member States do not have legally binding value, and that the European Commission will very seriously apply Art 19 if decisions by National Regulatory Authorities (including on remedies) could endanger the internal market. On privacy, she made a clear distinction between spyware/malware and 'technical cookies'.

Update 22 Nov 2009: European Parliament - presentation of Trautmann Report on 23 Nov 2009 and vote is scheduled for 24 Nov 2009.

This addresses a key hurdle to the completion of the Telecoms Package, although the revised Framework Directive still has to be voted (for the third time) in the European Parliament (in the session of 23-26 Nov 2009) and still has to be adopted by the Council. Expectations are that these two steps will occur within the next 6 weeks. 

A European Commission Press release, containing the new agreed wording for Article 1(3)a of the Framework Directive (Annex I of the press release), further elements, background material, etc. can be accessed by clicking here.

The agreed wording for Article 1(3)a is as follows:

“Measures taken by Member States regarding end-users’ access to or use of services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law.

Any of these measures regarding end-users’ access to or use of services and applications through electronic communications networks liable to restrict those fundamental rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and general principles of Community law, including effective judicial review and due process. Accordingly, these measures may only be taken with due respect for the principle of presumption of innocence and the right to privacy. A prior fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms . The right to an effective and timely judicial review shall be guaranteed.” 

The Belgian regulatory authority BIPT has issued (at the request of the Minister) a consultation document requesting market participants to provide input and impact assessments on proposals being debated in the Federal Chamber of Representatives, putting forward significant modifications to the Law on Electronic Communications.

The purpose of the proposals (and proposed amendments thereto) is to facilitate the process for users switching from one Internet Service Provider (ISP) – and presumably also from one e-mail provider/web hosting provider – to another.

The bill (filed by representatives Roel Deseyn and Jef Van den Bergh on 26 May 2009), entitled 'modification of the Law with regard to the changing of operator', is very short (3 articles fitting on a single – bilingual – page), indicates that users are inhibited from switching from one ISP to another by the fear of losing their e-mail address and hosted web pages, and seeks to facilitate switching by requiring (if the user requests it) free of charge temporary e-mail forwarding and URL redirection for a period of 6 months after contract termination. It also requires the service provider to inform users of this possibility upon contract termination.

On 8 July 2009, amendments were filed, including by one of the original authors of the bill (Roel Deseyn), which entail:

• Introduction of definitions of “number”, “e-mail address” and “e-mail” in the Law (whereby an e-mail address becomes a subset of a “number”, and whereby the concept of “e-mail” includes text, speech, sound and image messaging, with a user-server interaction), as well as an amended definition of URL compared to the original bill, and a definition of “domain name”.

• Introduction of an e-mail and URL 'capture' mechanism, whereby, if a user decides to terminate a contract with an ISP or e-mail provider, the user in question should, during a period of 6 months after termination or de-activation, be able to access incoming mail on his old e-mail address (using webmail). Simultaneously, the ISP or Host must send out a message to incoming contact attempts addressing the defunct addresses with a message that the e-mail address or URL is no longer in use. Upon explicit request of the user the message may also contain a pointer to a new e-mail address or URL. The Minister (upon advice of the BIPT) is given responsibilities with regard to detailed implementation of the proposed mechanisms.

Other amendments, also filed on 8 July 2009, by another representative (David Geerts), go much further, as they call for:

• Imposing an obligation on ISPs to provide “the facility of e-mail portability” (with the BIPT put in charge of defining rules in this context, a cost-accounting methodology, and “a method for sharing the costs between the parties concerned”).

• The BIPT to define rules to be adhered to by operators upon termination of an Internet subscription, such that the end-users do not lose information addressed to them upon termination of a subscription with an operator.

The BIPT invites interested parties to express their views on: financial implication for market participants; operational impact for users and market participants; implementation timeframe; legal aspects in terms of privacy, branding, contracts, etc. and calls for alternative proposals or other relevant remarks.

T-REGS Note: It will be seen that the proposals have major potential implications, in terms of what constitutes an electronic communications service, what constitutes a “number” (although Article 1,3° of the Royal Decree on Numbering is identical to what is being proposed to be included in the Law), (re)definition of activities on the Internet (potentially going beyond e-mail and web hosting), obligations on market participants, etc. For example, the proposed definition of electronic mail comprises all text, speech, sound or image transferred through an electronic communications network which can be saved in the terminal equipment of the receiver until it is fetched by the end-user of the internet service.

The full text of the consultation document (available only in Dutch and French) is available by clicking here.

Comments are invited by 31 August, 15:00 CET.

For a discussion, please contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it or This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

Update 27 July 2009: Conciliation meetings (between the Council of Ministers and the newly elected European Parliament) will be held in the first week of October 2009 with a view to reaching a new political agreement on the legal framework. The question as to whether conciliation will be limited to the Amendment 138/46 issue alone, the amendments to the Framework Directive, or whether the entire package will be re-opened for discussion remains unresolved.

In the meantime, the Council of Ministers today adopted the final text of the updated "GSM Directive". The updated Directive will be signed by the Presidents of the European Parliament and the Council of Ministers in September and will then be published in the EU's Official Journal in October 2009. At the same time, the European Commission will adopt a Decision, which will enter into force on the same day as the updated Directive, setting out the technical measures allowing for the co-existence of GSM and UMTS systems in 900 MHz spectrum in line with the Directive.

Update 26 May 2009: The Council of Ministers will discuss the situation informally on 11 June 2009 (but it is not a formal agenda point, given that the European Parliament has not yet transmitted the texts it has voted).  

The European Parliament plenary voted today on the revision of the EU directives on electronic communications, and adopted the text that was agreed in the Coreper I last week, but in addition the vote resulted in the reintroduction of Amendment 138/46 which the Council of Ministers had opposed. This amendment reads as follows:

applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent. 

La Quadrature du Net states that this is the result of "remarkable citizen mobilization".

The implications of this development are -as yet- uncertain. The Czech Presidency and the Council of Ministers could conceivably decide to agree with the European Parliament's amendment, following conciliation (quite possibly resulting in delay) or the entire package could be scuppered.

Following today's vote, the European Commission issued a memo, indicating what the Commission sees as the 12 key points of the package, and including a statement by Commissioner Viviane Reding, as follows: "Now the ball is in the court of the Council of Telecoms Ministers to decide whether or not to accept this package of reforms. There was one amendment voted by the Parliament today that was not included in the initial deal agreed between the three EU institutions. This amendment is an important restatement of the fundamental rights of EU citizens. For many, it is of very high symbolic and political value. I call on the Council of Ministers to assess the situation very carefully, also in the light of the importance of the telecoms reform for the sector and for the recovery of our European economy. The Telecoms Council on 12 June should be used for a political discussion on whether agreement on the package is still possible or whether the discussion will have to start again with the new European Parliament in autumn."

The European Parliament subsequently issued a press release, in which it indicates the following: "MEPs amend a political agreement reached with the Council [...] Therefore, the whole "telecom package" is likely to be subject to conciliation in Parliament's next legislative term after the European elections [...] Parliament and Council do agree on the citizens' right directive and the establishment of a new European body of telecom regulators called BEREC but amend the compromise reached with Council on the framework directive. Since all three proposals are interlinked, it is likely that the whole package will go to conciliation."

The provisional version of the text of the revision of the EU directives, as adopted in second reading by the European Parliament, can be accessed by clicking here.

Update 5 May 2009: The European Parliament has today published background material, which can be accessed by clicking here and Malcolm Harbour (MEP) has published an interview.

The next steps are formal debate (5 May 2009) and voting (6 May 2009) in the European Parliament plenary, and adoption by the Council of Ministers on 12 June 2009, followed by formal publication of the Directives in the Official Journal.

The Czech Presidency's press release can be accessed by clicking here.

Catherine Trautmann (MEP)'s press release (in French) can be accessed by clicking here. 

One consolidated texts are available, we will post them on this website. In the meantime, the pages showing the state of advancement of the Parliamentary process (not yet reflecting the agreement reached on 29 April 2009) can be accessed via these links:

Framework, authorisation and access directives

Universal service and users' rights directive + e-privacy directive + data retention

Creation of the Body of European Regulators for Electronic Communications (BEREC)

Please do not hesitate to contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it   for a discussion.

Update 16 Jan 2009: The deadline for responding to the OPTA consultation on wholesale FttH-unbundling fees is now 13 February 2009. The letter specifing this, and the link to the consultation document (in Dutch language only) are accessible by clicking here.

Update 24 Dec 2008: On 19 Dec 2008, the Dutch competition authority NMa approved the KPN-Reggefiber joint-venture (named Reggefiber Group B.V.), on condition that it practices maximum wholesale fees for FttH unbundling in the bracket of €14,5-€17,5/month (depending on geography) with an annual uplift to reflect inflation. T-REGS note: This wholesale rental fee is for two dark fibres to each customer.

Also on 19 Dec 2008, OPTA issued its market analysis decision for Market 4 (among a set of market analysis decisions it issued), issued final Policy Rules on FttH unbundling (the main difference compared to the draft is a clarification that these rules are explicitly only for Fibre to the Home, not for Fibre to the Office), and OPTA issued a further consultation document containing a draft decision on wholesale FttH-unbundling fees for the period 2009-2011. The deadline for responding to this consultation is 13 January 2009. 

OPTA puts forward regulatory principles, as well as tangible one-off and monthly maximum fees (e.g. monthly rental €14.5-€17.5 per FttH fibre pair), for the Optical Distribution Frame access (ODF-access) offer and related facilities (co-location, backhaul) of the envisaged Reggefiber-KPN joint-venture (JV).

This JV, in which KPN aims to have a 41% stake, is subject to clearance by the competition authority NMa, and OPTA has formally proposed that the JV would be included in the KPN designation as the operator with Significant Market Power (SMP) on Market 4 (wholesale (physical) network access at a fixed location), dated 5 Nov 2008. KPN and Reggefiber have opposed OPTA’s proposed SMP finding, although they publicly committed to providing voluntary fibre access.

Today’s OPTA consultation document makes numerous references to the European Commission's draft Recommendation on regulated access to Next Generation Access networks (and to the ERG response to it), and is presented as the first practical implementation of the principles put forward in these documents.

OPTA positions its proposed regulatory intervention in the context of a ‘trade-off’ between short-term promotion of competition (through access obligations on dominant operators) and the encouragement of (efficient) investment. Regulatory certainty is identified as an important contributor to a favourable environment for investment and innovation, for the benefit of market participants and consumers.

Key principles (this T-REGS news item is merely a selection/summary) put forward by OPTA are as follows:

• 5 rules to prevent discrimination between the network owner and its affiliates on the one hand, and third parties on the other hand, notably to prevent risks of margin-squeeze. Volume discounts, however, are proposed to be permitted. OPTA proposes to validate (page 41) a discount up to 20% on the monthly rental fee for fibre pairs, where 26.000+ fibre pairs per FttH (P2P) city  concentration point (the hierarchical level above the actual ODF-access locations) are taken up (the discount table shows discounts ranging from taking-up 2000 fibre pairs upwards at city concentration point level). Updates 26 and 27 Nov 2008: Following two questions put by T-REGS to it, OPTA has confirmed that: (i) the volume discounts in the table are to be awarded to all unbundled fibre takers per city concentration point (hierarchical level above the actual ODF-access locations), and (ii) based on the common volume achieved i.e. not on a taker-by-taker basis.

• Geographic differentiation, in particular to reflect demonstrable underlying construction costs, would be permissible.

• A ‘wholesale tariff ceiling’, T0, would be defined, on the basis of a cost model, for each element of unbundled fibre access. This ceiling would be indexed every year based on the consumer price index (CPI), within ‘regulation periods’ of 3 years (T-REGS Note: max. 3 years for market reviews as required by the Dutch transposition of the EC framework for electronic communications).

• T0 is proposed to be defined on the basis of the business model of the investor (not an OPTA cost model) and the investors’ internal rate of return (IRR) - in this case the Reggefiber-KPN JV which is proposed to be found as having SMP and is therefore proposed to be regulated -, not taking into account the risk of future regulation.

• OPTA introduces a notion of ‘all-risk WACC’ (weighted average cost of capital) for the 3-yearly review. The ‘all-risk WACC’ would include uplifts on the WACC that is applicable to the legacy copper network to reflect: (i) an uplift to cover fibre investment risk (risk on demand/take-up of fibre access), and (ii) an uplift to cover asymmetric risk (risk of future regulation for the fibre investor), to promote investment.

• The ‘all-risk WACC’ would be re-assessed at the start of every 3-year regulation period, and compared with the actual IRR achieved by the investor (based on the original business model, values of which can be amended based on achievements and expectations going forward).

• If the IRR (at the start of a 3-year regulation period) approaches the ‘all-risk WACC’, the investor would be allowed to choose to be price-regulated (capped) on wholesale fibre unbundling going forward, to offer greater volume discounts for wholesale fibre unbundling, or to extend the network to areas that are less profitable to avoid being regulated (goal: stimulate deployment). In case the further deployment option is not chosen, the cap would be reduced for the next 3-year period, but again allowing annual CPI-related increases.

• One-off connection fees should not dissuade take-up. OPTA proposes to validate (page 39), a one-off connection fee per customer of maximum €100.

As is indicated above, OPTA proposes to rely, to define T0, on the business model provided to it by the proposed Reggefiber-KPN JV – which was given insight in a draft of OPTA’s proposed policy rules. The JV has formulated a proposal, key elements of which are as follows:

• One-off FttH customer connection fee: €100; one-off telco-telco migration fee: €125.

• One-off Area-PoP connection fee (concentration point aggregating tens of thousands of lines): €3000.

• Monthly rental backhaul Area PoP to City PoP (2x28 fibres redundant): €600.

• Monthly co-location fee (6 footprints) in Area PoP: €500.

• Monthly fibre pair rental fee: €12 to €15 depending on capex profile. Other (lower and higher) capex profiles can be defined in the future. OPTA proposes to cap the fees at €14.5 (for the €12 offer) to €17.5 (for the €15 offer).

Interested parties are invited to comment on OPTA’s proposed policy rules until 8 December 2008, followed by further consultation on the draft Market 4 analysis, incorporating the policy rules on tariff regulation for unbundled fibre access, for a period of 6 weeks running from 19 Dec 2008.

The full text of the OPTA consultation document (in Dutch language) can be accessed by clicking here. On 1 Dec 2008, OPTA made available an English translation, which can be accessed by clicking here.

For a discussion of this important development, please contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .

Update 25 Nov 2008: KPN has made a press statement indicating that it has received what it terms 'sufficient clarity' (from OPTA and NMa) to continue rolling-out FttH as per its existing plans (its own selective FttH roll-out and its commercial agreement to take unbundled FttH from Reggefiber), with an evaluation following mid-2009, i.e. contrary to press and blog reports, no decision has been made on massive roll-out and the JV is still pending approval by the NMa.