The French Presidency of the Council of the European Union (FPEU), which will end on 30 June 2022, is reaching its midpoint. Major texts pertaining to digital issues are and will be negotiated during this presidency, to improve regulation of digital platforms in a way that benefits users and the environment.
Increasing protection for European citizens’ fundamental rights on the internet, empowering users in their choices and guaranteeing them the lowest prices, reducing the risks of being exposed to illegal content online: these are the advances in the area of content that need to be enshrined by the Digital Services Act (DSA).
The Digital Markets Act (DMA), on which a political agreement was reached on 24 March, will introduce regulation to foster a fairer and more competitive marketplace, thanks to a series of obligations imposed on the internet’s “gatekeeper” platforms. Among other things, the legislation is expected to require these heavyweight actors to give their users the ability to recover their data automatically, and in real time, to be able to transfer them to other services. It also imposes interoperability on certain messaging services such as WhatsApp. Arcep’s teams contributed heavily to the work done by BEREC and its involvement in discussions with the European Parliament and Commission.
Lastly, FPEU is expected to chair discussions on a draft directive that seeks to implement a universal charger: a real step towards reducing digital devices’ carbon footprint! The next, and highly anticipated, review of the Eco-Design Directive, is also expected to include new provisions regarding smartphones.
At the same time as France presides over the Council of the European Union, with ambitions that include the completion of the DMA (Digital Markets Act) and DSA (Digital Services Act), Arcep Executive Board member and Vice-chair of the Body of European Regulators for Electronic Communications (BEREC), Emmanuel Gabla, will coordinate several working groups in its copious programme for 2022.
Continuing discussions on the regulation of gatekeeper platforms, on digital’s environmental impact, examining (messaging, video) service interoperability, net neutrality, the digital divide, universal service, ensuring accessibility for people with disabilities, access to emergency services and roaming in Europe: adopted on 9 December of last year, BEREC’s work programme is heavily user-centric.
Under the chairmanship of the Dutch regulator, and working alongside other Vice-chairs, Arcep will be fully involved in this programme’s implementation. As Vice-chair, Emmanuel Gabla will keep a close eye on the progress of four working groups: End user, Fixed network evolution, Sustainability and Market and economic analysis, the latter two of which are co-chaired by Arcep. A very busy agenda for the coming year, then, with a total of no fewer than 47 parallel workflows!
This is one of European lawmakers’ flagship measures. And one that has had the greatest impact for consumers across the European Union: the end of roaming charges in Europe on 15 June 2017. The story began in the 2000s. Seeing the failed state of competition in this market, and that high prices were a barrier to creating a single market, European regulators suggested to the Commission that retail roaming charges be capped, along with the underlying wholesale tariffs.
And so the first European roaming regulation was born on 30 August 2007. As a result, European consumers saw the calling rates they were charged when travelling within the EU decrease dramatically: from €0.49 to €0.19 per call during the first seven years of the regulation’s application. The framework also strengthened operators’ obligations to inform users about roaming tariffs within the European Union. Thanks to its positive effect on the market, the price cap continued to be renewed for each of the following years.
A new milestone was reached on 15 June 2017 with the introduction of a new regulation introducing the principle of “roam like at home”. Since then, European users travelling within the EU can employ their regular mobile plan while roaming with no additional charge. This development triggered an explosion in traffic in Europe: French consumers now generate an average 1 Gb/month when roaming, compared to 100 Mb/month in 2017, prior to the new regulation. Having expired in mid-2022, this regulation will be extended for another 10 years. And operators will be required to provide the same quality of service to roaming users as they do to their domestic customers, whenever technically possible. So good news for Europe and its 500 million potential consumers!
Zero rating refers to practices whereby an operator excludes the data consumption of certain internet services from customers’ allowance. One example would be a mobile plan for which the data traffic generated by certain applications is offered free of charge.
On 2 September 2021, the Court of Justice of the European Union(CJEU) delivered rulings on three cases pertaining to zero-rating practices employed by two German operators who sold plans that did not count traffic to certain types of application, such as video streaming and social media, in customers’ data allowance.
In these rulings, the CJEU questioned the legality of a zero-rating practice under the Open Internet regulation, which stipulates that an internet service provider must treat all traffic equally, without discrimination, restrictions, or interference, regardless of the applications or services being used. Any different treatment must be duly justified by the exceptions permitted by the regulation, which was not the case in the matters in question.
To draw all the resulting conclusions from these rulings, the Body of European regulators (BEREC) will review its open internet guidelines in the coming months.
Having the ability to leave a social network with one’s content, switching messaging services without losing one’s contact list… Portability and interoperability that make it easy two switch to a rival service have become increasingly important issues in digital regulation. On 6 October, the Body of European Regulators adopted a report that seeks to reinforce the provisions set forth in the European Commission’s Digital Markets Act. It contains several recommendations for regulating digital gatekeepers more effectively.
Among other things, BEREC’s proposals seek to increase users’ autonomy. For instance, it recommends strengthening interoperability obligations that enable various tools, notably software, to “talk” to each other. This obligation would, in practice, enable social network users to employ alternative solutions without losing contact with friends from their previous platform.
BEREC also proposes making stakeholders a more integral part of the regulation process. This would enable the European Commission to tackle those issues encountered by business users who may depend on the digital gatekeepers. Additionally, the Body proposes creating a dispute settlement mechanism, to give business users access to an effective solution for enforcing the DMA’s obligations.
In April, the European Commission unveiled its proposed rules on artificial intelligence (AI). The text aims to introduce a balanced, future-proof framework that can stand up to the risks that the unbridled development of AI could have create for European citizens. The proposed rules include forbidding practices that are deemed unacceptable or contrary to fundament EU rights, such as public authorities’ social scoring systems. Strict obligations are also planned for what are considered “high risk” AI systems, such as those used in the areas of security and healthcare. Alongside this new framework, competent authorities are encouraged to develop regulatory sandboxes to foster innovation.
In its “Future Networks” brief of January 2020, Arcep identified AI as a major technological development that could usher in major socio-economic benefits, notably for telecoms where there is a host of potential use cases, such as optimising network functions and improving frequency planning. AI could also enable Arcep to develop automated, more efficient data-driven regulation, and so complete its toolkit. The Authority nevertheless also stresses the main challenges created by AI in terms of transparency, security, neutrality, accountability and ethics, and salutes the European Commission’s initiative in taking the first steps towards tackling those challenges
On 11 June, the Body of European Regulators for Electronic Communications (BEREC), published two proposals designed to deepen debates over the Commission’s proposed “Digital Markets Act”.
The first proposal explains how, in addition to the planned obligations, introducing a system of tailored remedies would make the proposed framework more effective. Remedies imposed on a case-by-case basis, that consider the particularities of the undertaking or situation in question, indeed seem far more suitable than a one size fits all solution, as currently set forth in the proposed regulation. Tailored remedies enable a regulator to specify a measure’s application, and so reduce the potential for circumventing it and the need for future intervention. To devise more robust solutions and reduce information asymmetries, BEREC also proposes a structured regulatory dialogue that includes all of the relevant stakeholders – gatekeeper platforms’ competitors, business users, consumers and civil society – and not solely with the gatekeeper platforms themselves.
The second proposal details the benefits of creating an independent advisory body at the European level, whose purpose would be to lend support and expertise to the future European regulator. Composed of relevant national independent authorities, among other things this group could provide deeper understanding of concrete cases, and so assist in crafting measures (thanks to data and information collected from stakeholders and monitoring of the digital environment), alert European regulators to specific issues, and potentially settle disputes raised by smaller undertakings who can be reluctant to appeal directly to the Commission.
Drawing on 20 years’ experience in ex ante regulation, these proposals from BEREC, which Arcep supports, complement its opinion and analysis published back in March, and seek to guarantee that the Commission’s proposed framework will be truly effective: ensuring the fairness and contestability of digital environments.
Ever since the first roaming regulation was adopted on 15 June 2017, European users travelling within the European Economic Area have been able to use their mobile phones under the same conditions as they would at home – hence the moniker, “roam like at home" (RLAH). This was a popular development with consumers, who have increased their usage while travelling abroad.
But the current framework only applies up to July 2022. Which is why, on 24 February, the Commission proposed a new draft roaming regulation which extends supervision of this market for another ten years. The proposal maintains supervision of wholesale prices and the ban on overbilling retail roaming prices. It also includes several new stipulations, including the requirement to provide equally good quality of service to roaming customers, whenever technically possible, as well as better information on special numbers, to avoid surprise billing.
Thanks to this proposal, European consumers should continue to enjoy decent pricing and technical conditions for their mobile use when travelling in the EU. The draft regulation nevertheless raises several application issues, which the Body of European Regulators (BEREC) set forth in an initial, overall positive opinion of the text. It must be possible to describe quality of service objectively, using as yet to be defined indicators, and factor in network availability, as well as existing and future agreements. The draft regulation will now be debated by the European Parliament and Council.
On 16 March, BEREC published its opinion on the European Digital Markets Act (DMA). The Body of European regulators welcomes the committed stance, which plans on targeted actions aimed at digital gatekeepers, notably search engines, social media and operating systems.
But BEREC also maps out avenues for improvement, and invites the European Commission to make its proposal more efficient thanks to real, proportionate and targeted ex ante regulation. The European body thus suggests strengthening the tools and means given to the Commission, notably to enable it to better tackle these markets and their malfunctions. For instance, when the text lists a series of obligations — such as enforcing non-discriminatory ranking conditions, forbidding bundling, giving users actual data portability, and the ability to install and disable any application on operating systems – BEREC points out that the lack of information, of flexibility, of reactivity and of dialogue with stakeholders can undermine their effectiveness.
BEREC is also calling on the Commission to take fuller account of the goal of an open digital environment, by more clearly incorporating users’ and citizens’ interests, particularly their freedom of choice in the access and supply of online content and services. Arcep has given broad support to this approach. BEREC will be hosting an open workshop on this topic in late April.
The Council of the European Union took a position on the environmental issues surrounding digital technology by adopting ambitious conclusions on 17 December of last year. The document recognises the need to continue to deploy digital infrastructures, while stressing how important it is to gain control over the sector’s environmental footprint by applying ecodesign and energy efficiency criteria. The Council called on the European Commission to provide indicators that will help shepherd the process of reducing this footprint. Among other things, the text encourages the development of tools to improve the information provided to consumers on the ecological effects that can be attributed to digital devices and services. The Council is also calling on European lawmakers to accelerate the pace of implementing measures to clarify data centres’ and telecom networks’ footprint. The European Parliament also expressed itself on the need to improve the measurement, transparency and reduction of this footprint, in two resolutions adopted in November 2020 and in February 2021. It was in this context that the Commission recently confirmed that it is working on indicators for monitoring and controlling the sector’s environmental footprint.
This work is expected to be completed over the course of 2021 and 2022. Meanwhile, at the national level, the “Digital and the Environment” roadmap that the Government published on 23 February mentions the Arcep and ADEME joint task force dedicated to assessing the impact of digital technology, as well as the creation of a Green Barometer based on data collected by Arcep, in keeping with European objectives.
This week, the European Commission published the Digital Market Act (DMA), proposed regulation designed to promote competition and innovation in digital ecosystems. Arcep welcomes this ambitious regulation, which it has been working to prepare for two years, in concert with the Government and other French regulators.
The text echoes what for Arcep are crucial recommendations: regulate a handful of tech giants and not the entire internet, be proactive in developing competition in areas where it is lacking; continually adjust the measures to keep pace with the market; entrust the task of regulation to an authority that is clearly in charge. All principles that have already proven themselves in the telecoms sector!
Upcoming discussions with the European Union Parliament and Council will be important steps in shoring up the ambitions set forth in the Commission’s text. Arcep will work to ensure that this planned ex ante regulation is fully operational.
In a judgement dated 15 September of this year, the Court of Justice of the European Union (CJEU) upheld a decision by Hungarian regulator, NMHH, regarding operator Telenor, which had contested it. In this decision, NMHH had prohibited Telenor from marketing a plan where the traffic generated from several mobile services was not be deduced from customers’ data allowance (i.e. zero-rated), and allowed them to continue to use these services even after they had reached their data allowance.
This type of practice has been regulated since 2015 by the European Open Internet Regulation, for which the Body of European Regulators for Electronic Communications (BEREC) issued guidelines in 2016, and updated them in 2020. The Court concluded that continuing to provide certain services after the data allowance had been reached infringed on end users’ ability to exercise their rights, as a result of which Telenor’s offer must indeed be discontinued. The Court issued a reminder that traffic blocking and throttling measures that discriminate against certain services, for business reasons, are forbidden by the regulation, and that customers’ subscription to these offers does not exempt the operator from its obligations.
This first precedent on the Open Internet Regulation confirms the interpretation published by BEREC, and upholds European regulators’ current practices which seek to impose strict rules on zero-rating offers.
The 2021 work programme for the Body of European Regulators for Electronic Communications (BEREC) was published for public consultation on 6 October, after having been approved at the latest plenary session. After the 2020 work programme that was dominated by the adoption of the new European Electronic Communications Code guidelines, and furthering discussions on regulating influential online platforms, the new programme will take BEREC’s work in brand new directions.
In keeping with current events, regulators’ experiences with 5G will cut across several working topics, including 5G’s impact on regulation, reducing rollout costs and 5G network security. BEREC will also tackle the topic of the transition from legacy networks to very high capacity ones, including fibre networks, to provide Europe’s citizens and businesses with future-proof solutions. As always, BEREC remains responsive to societal preoccupations, and heavily focused on environmental concerns. Lastly, the Body will take a deeper look at the relationship between online platforms and the internet’s openness, by analysing its value chain from every angle.
The public consultation on the Digital Services Act package initiated by the European Commission ended on 8 September. In their responses, the Body of European Regulators for Electronic Communications (Berec) and Arcep called on the European Union to arm itself with an ex ante regulation for the large, highly influential online platforms, and so make the internet once again a place where freedom of choice and freedom to innovate reign.
Following through on their work, Berec and Arcep suggest introducing a targeted and coordinated regulatory framework at the European level. The central role occupied by Big Tech and their impact on the internet, and beyond that on society, requires not blanket regulation of the entire internet, but rather regulation that targets a few highly influential players that control the intersections. The aim is to restore a normal framework of operations for the internet, in a global and preventive fashion, and no longer by just sanctioning transgressions after the fact.
Arcep and Berec are proposing a complete toolkit of “remedies” (notably interoperability and data-driven regulation) that draw their inspiration from the approach that has been successfully applied in the telecoms market. This framework would create the ability to promote an environment whose very openness ensures healthy competition, welcomes innovation, guarantees everybody’s rights and freedoms (consumers and business, citizens and civil society actors, etc.). And allows users to take back control, at last.
After performing an evaluation in 2018 on the application of the Open Internet Regulation, BEREC began a review of net neutrality guidelines in early 2019. Eighteen months of collaboration between Arcep and its European counterparts, and an ongoing dialogue with the ecosystem’s stakeholders, culminated in the publication of a revised version of the guidelines on 16 June of this year.
These revisions bring substantial clarifications on several points: the rules for examining zero-rating offers, ISPs’ ability to market internet access services with different levels of QoS, and supervising the add-on services supplied by ISPs (e.g. parental control) alongside their internet access plans. A number of points remain unchanged, such as the limits imposed on ISPs’ ability to inspect the data being relayed over their networks.
Ultimately, these guidelines reflect the conclusions reached by European regulators. Arcep welcomes BEREC members’ adoption of this document. This marks one more step towards guaranteeing net neutrality, ensuring strong protection of users’ rights, while leaving tremendous freedom to innovate
One could say that instant messaging services such as Messenger, WhatsApp and Skype are to telecoms what Uber is to taxis and Netflix is to TV channels. These over-the-top (OTT) players, which have disrupted the way our fellow citizens communicate with one another, will soon fall under the purview of Arcep and its fellow European regulators, all of which are members of BEREC: the Body of European Regulators for Electronic Communications.
To identify the metrics and indicators that regulators might collect to begin to monitor these IM providers and their development, BEREC plans on hosting a workshop in late 2020 on collecting data from certain OTT players, before publishing a report on the topic in 2021. The aim of this process is to quantify their impact on the telecoms market. It is set against the backdrop of the European Electronic Communications Code which lays down new obligations for these players, and new information gathering powers for regulators.
After the one-two punch of a global pandemic and the resulting confinement of their population, European Union Member States saw a massive surge in traffic on their telecoms networks. European NRAs who are members of BEREC and the European Commission were quick to make contact to discuss the status of the networks, and the actions that had been taken or needed to be taken under the circumstances, then issued a joint statement.
Arcep and its European counterparts are thus keeping a close and continuous watch over the status of network capacity, and the measures being taken to ensure the networks continue to run smoothly, working in concert with the European Commission. Regulators also issued a reminder of the rules that operators must follow, under the terms of the Open Internet regulation, notably that they are prohibited from blocking, slowing down or prioritising certain traffic streams. Exceptional traffic management measures may be authorised if they are necessary to handle impending or proven congestion, and only if they are applied equally to all applications and categories of application.
The message delivered across Europe remains optimistic: no major congestion issues have occurred, although the monitoring mechanism remains in place. Operators and content providers have acted on their own initiative and as part of a dialogue with public policymakers, to ensure the networks’ performance levels are maintained.
On 11 December, European Commission President, Ursula von der Leyen, announced the outlines of one of the Commission’s top priorities: the Green Deal for Europe. Among the Deal’s targets is a carbon neutral European Union by 2050. Digital technology will be fully mobilised to achieve this objective. The Commission will examine measures that would enable artificial intelligence, 5G, the cloud and the Internet of Things (IoT) to contribute in a positive way to climate-related challenges. An ambition that will go by way of progress in the circular economy and the sector’s energy efficiency, but also measures for recovering electronic devices and stricter rules governing new network rollouts. Digitisation also creates the ability to better monitor air and water pollution, optimise the use of energy and natural resources – all of which are key to the success of this “Green Deal”.
The climate emergency is an equally pressing issue for French authorities. On 16 December, nine independent authorities – Arcep, AMF, the Competition Authority, ARJEL, ART, CNIL, CRE, le CSA and HADOPI – elected to join forces and publish a joint memorandum. In September, Arcep published a brief as part of its Future Networks experts committee on “Digital tech’s carbon footprint”. Arcep also supports the creation of a “Yuka” app for digital technology, to foster consumer awareness of the environmental impact of their consumption and, as Arcep Chair, Sébastien Soriano, explains, “to encourage the market to make environmentally ethical choices”.
In the run-up to the new procedure set out in the European Code, in early September Arcep voluntarily submitted its plans for awarding new frequencies in the 3.4-3.8 GHz band for 5G deployment to a peer review by its European counterparts. This collaborative dialogue, in which the Body of European Regulators for Electronic Communications (BEREC) has become a stakeholder, has created a fruitful dialogue at a key stage in the process, before frequencies are awarded. It creates a forum for exchanging best practices and addressing the different parts of the procedure, even if they have not been strictly harmonised across Europe.
5G is also a priority in BEREC’s medium-term strategy. A study produced in 2018 examined 5G’s impact on operators’ business models. This year, a call for feedback will serve to examine how it affects regulation, but also to see how regulation can lay the groundwork for its successful deployment. Lastly, a feasibility study is currently being done on the opportunity to produce 5G coverage information that is harmonised at the European level.
The new European Commission will soon be taking up its functions. The centrepiece of its digital work programme, a Digital Services Act has already been announced. In keeping with the hopes of the new President, Ursula von der Leyen, this plan seeks to complete the Digital Single Market by updating platforms’ obligations in particular. It will reform the e-Commerce Directive of 2000, which defines the legal framework governing technical intermediaries. The Act will also establish new rules that apply equally to all digital services in the Digital Single Market, and redefine platforms’ responsibilities. Those pertaining to algorithms and online advertising will also be revised. Work on the Act is expected to begin next year.
With this same impetus, at its latest plenary meeting, the European Body of Regulators for Electronic Communications (BEREC) committed to assuming a proactive role of forum for discussion and advisor to European institutions, as part of its work programme for 2020. BEREC had already explored these issues in earlier reports (see links below) and plans to continue this work with the publication of a report in 2020 on platform regulation. While aligning itself closely with the Commission’s digital agenda, BEREC thus hopes to help the European Union to rise to the digital challenges that lie ahead.
After having worked through the summer, the Body of European Regulators for Electronic Communications (BEREC) has published its updated net neutrality guidelines. Several amendments have been made to the original 2016 text, drawing on regulators’ experience over the first three years of enforcement of the Open Internet regulation. It is now inviting anyone who so desires to provide feedback on how these guidelines could be improved. The deadline for submitting contributions is 28 November.
BEREC wanted to consult with industry stakeholders on operators’ possible ability to inspect the data (IP packet contents) being relayed over networks, as part of their regular traffic management process, for billing purposes. This is an important issue for Arcep as it endeavours to reconcile strong protection for personal data, while also enabling ISPs to sustain a functional modus operandi.
On 28 June, The European Regulators Group for Postal services (ERGP) held its first plenary meeting of 2019 in Portugal. Representatives of national regulatory authorities discussed a possible review of the Postal Directive, in addition to preparing for the upcoming ERGP work programme, including a public consultation on the draft work programme for 2020 and the medium-term strategy for 2020 – 2022.
Participants also discussed the programme for the second ERGP Stakeholder Forum which will be taking place on 18 September, and bring together the entire European postal distribution ecosystem. Lastly, ERGP members addressed the implementation of the 2018 regulation on cross-border parcel delivery, and particularly cross-border tariffs.
Two years after the Open Internet regulation came into effect, it is time for the first assessment. National regulators’ enforcement of net neutrality rules has made it possible to conclude that the guidelines, which may require further clarification, have largely done their job. In an opinion issued in 2018, however, while dismissing the need to revise the European regulation, BEREC drew up a list of those points in the guidelines that could be eligible for clarification, to ensure that the different stakeholders apply the regulation in a consistent fashion.
In keeping with this opinion, Arcep is making an active contribution to the work that BEREC is doing on revising the guidelines. The findings of this work will be the subject of a public consultation in autumn 2019.
On 28 March dernier, the European Commission published a report by Guillaume Klossa, special advisor to Vice-president Andrus Ansip and founder of EuropaNova, titled: “An Industrial Media Strategy to Leverage Data, Algorithms and Artificial Intelligence”.
One of the report’s goals was to answer the question: how can we guarantee that digital technology contributes to a democratic development of the media sector? Guillaume Klossa delivers 14 recommendations. The first is to co-construct a European media policy that undergirds a social democratic transformation.
The report also lobbies for a “New Deal on Data”. Here, it is recommends using regulation to implement an API on platforms to enable researchers, experts, associations and others to access the data they need for research and trials, striving to foster a media environment that aligns with our values.
The other recommendations include creating a “neutral” button that would allows users to see what content or information would have been proposed without using any of their personal data. Instilling data portability and interoperability as a “precondition to make competition possible”. Setting up systematic supervision of platforms at the European level, and creating a “pan-EU data commons”.
Guillaume Klossa suggests two courses of action to achieve all this: partnerships and co-construction. We can only agree wholeheartedly!
While the future of the Brexit process remains uncertain, what consequences could the UK’s withdrawal from the EU have on roaming charges, and on the country’s connectivity in general?
- On roaming charges
There are several possible scenarios here. If an exit deal is reached, there would be a transition period during which the principle of “Roam like at home”should continue to apply. At the end of this period, the terms governing roaming fees between the UK and the other European Union countries will need to be negotiated as part of a new economic partnership. If no deal is reached, Roam like at home will no longer be guaranteed by law, and everything will depend on the decisions and business negotiations between operators on either side of the Channel.
- On national connectivity
Back in February, the Confederation of British Industryexpressed its concerns over the consequences of a no-deal Brexit. It spoke in particular about the serious impact that it would have on fibre and 5G rollouts, and on bridging the country’s digital divide. The main threats concerned diminishing private investment, difficulties importing fibre and the exodus of qualified engineers.
The latest plenary meeting of the Body of European Regulators for Electronic Communications (BEREC) in 2018 marked the completion of several major undertakings, including the adoption of a common position on informing consumers on mobile coverage, and the publication for consultation of a report on infrastructure sharing.
This meeting also kicked off several major projects for 2019.
- Implementing the new European Electronic Communications Code, which was published last December;
- Performing a review of net neutrality guidelines;
- As well as delivering a preliminary analysis of the potential impact that the advent of 5G will have on regulation.
This ambitious work programme, to be spread out over two years, will be headed up by BEREC’s new Irish Chair in 2019, Jeremy Godfrey, followed by his Swedish counterpart, Dan Sjoblom, in 2020.
Further details on BEREC’s work programme for 2019
The new European Electronic Communications Code, which has just been officially adopted, has been published on 17 December. This final step wraps up a legislative process for reviewing the 2009 Telecoms Package that began in September 2016.
The Code’s main goal: to develop very high capacity network connectivity across Europe by promoting investment and the emergence of future technologies (notably fibre and 5G). To this end, the Code introduces measures designed to stimulate fibre rollouts and competition, which draw their inspiration to a large extent from the French experience.
The European Parliament and Council have also agreed to strengthen the role played by BEREC, the cooperation body between European regulators, by assigning it new tasks to ensure that the Code is enforced in a consistent fashion across the EU.
In 2019, Arcep will be involved in transposing this new framework into national law, which should be complete by 2020, and in the work being done by BEREC.
The European Commission created a quarterly 5G observatory in October, which tracks a range of data such as:
- planned spectrum use in every European country;
- status of 5G trials in Europe;
- national 5G rollout roadmaps;
- and other actions being carried out by industry stakeholders and Member States.
Click here for more information!
On 20 September, the European Regulators Group for Postal Services (ERGP) hosted its first ever “Stakeholders Forum” in Brussels. The event brought together postal, digital and e-commerce market stakeholders to discuss the future of regulation, around the central theme of: “When digital meets postal – Evolution or revolution?”
A chance to discuss the challenges and opportunities being ushered in by the tremendous growth of e-commerce in Europe. Andreas Marschner, Amazon’s VP of Transportation services for the EU, identified, for instance: 365-day shipping a year, the development of innovative technologies for ensuring delivery in the last drop (even with the recipient is absent), cutting out the maximum number of middlemen in the logistics chain to ensure even faster delivery.
There is also no shortage of challenges on the regulatory front: ensuring transparency, affordable prices, reliability, consumer protection… Let the debates begin! ERGP has begun a series of projects, with a view to delivering an opinion to the European Commission in summer 2019 on possible reforms to the Postal Directive.
Is consolidation the only way to revive the telecoms market? To answer this oft repeated question, BEREC decided to analyse the impact of three mergers that occurred in three mobile markets – Germany, Austria and Ireland – between 2013 and 2014*.
It published its conclusions in June, in a report that is now available in French on the Arcep website.
Sébastien Soriano spoke about the report in an interview with La Tribune on 14 September, and summarised it thus: “(…) there is no magic formula: everything depends on the state of the market and the measures agreed upon by the stakeholders… It has to be taken on a case by case basis!”
* These mergers reduced the number of mobile operators competing in these three countries from four to three.
• Read the report (in English)
The European Commission has just fined Google €4.34 billion for abuse of dominant position. A record fine that marks the end of an inquiry launched three years ago by Margrethe Vestager, European Commissioner for Competition.
In the crosshairs is the Android operating system. Google imposes illegal restrictions on Android device makers and mobile operators, to strengthen its search engine’s dominant position: for instance, Google obliges manufacturers to preinstall Google Search and Google Chrome on Android devices.
This is a landmark decision from the Commission as it affects innovation and, beyond that, every consumer’s freedom and freedom of choice. Arcep Chair, Sébastien Soriano, shared his reaction to the decision in a Medium post, following through on the report that Arcep published in February 2018, “Devices: the weak link in achieving an open internet”.
Google must put an end to these practices within 90 days. The company has appealed the decision.
A few figures: In 2017, Android had a roughly 85.9% share of the mobile OS market, compared to 14% for Apple’s operating system, iOS, and 0.1% for all the other OS. More than 1.3 billion Android smartphones were sold in 2017, compared to around 215 million for iOS, and 1.5 million for the other operating systems. (Sources: Gartner)
Read Sébastien Soriano’s post on Medium (in French): “Android decision: how smartphones took control, and how to get it back.”
In the night of 5 to 6 June of this year, a political agreement was reached between the European Parliament and EU Member States on the content of the European Electronic Communications Code. This completes a legislative process for reviewing the Telecoms Package Directives that began in September 2016. The Code’s core ambition: to develop connectivity to very high capacity networks in Europe (notably fibre and 5G), by updating the rules governing access regulation and by introducing greater coordination on 5G spectrum assignment timetables. The Code also seeks to strengthen consumers’ rights and adapt the framework to current realities (incorporating certain web-based services and including broadband in the universal service).
As the expert regulator, Arcep lent its support to preparing French authorities’ position on the legislative work done on reviewing the framework. Working within BEREC, it voiced EU regulators’ common positions in public debates, in its capacity as BEREC Chair in 2017, and played a very active role in the technical analysis work performed when crafting these positions. In 2018, the Authority continues to be heavily involved in this issue, examining and later transposing this new Code, which is due to be adopted in mid-2018 and come into force by 2020.
The new European regulation governing cross-border parcel shipments came into effect on 22 May. It increases transparency on the price of cross-border parcel deliveries for consumers and businesses in Europe, and introduces supervision of this fast-growing market. The goal: to make deliveries between European Union countries more affordable and more efficient for e-commerce across Europe.
This text is thus synonymous with the newfound powers assigned to national regulatory authorities in Europe – which in France is Arcep – and which will:
- collect data on parcel operators (products, revenue and volume of parcels handled) and their prices;
- ensure that the price of universal cross-border parcel services (which in France are provided by La Poste) is reasonable.
A declaration system for operators will be put into place before the end of 2018, while the tools for collecting statistical data will be implemented in the first half of 2019.
Find out more
On 28 March, the Centre on Regulation in Europe (CERRE) delivered its report on zero-rating in Europe. To mark the occasion, the Centre hosted an afternoon of debates whose participants included Arcep Chair, Sébastien Soriano, as well as DG Connect, the Chair of BEREC, BEUC, as well as Europe’s main telcos and leading internet companies.
Sébastien Soriano issued a reminder that freedom of choice is a central tenet of net neutrality, which must not be confined to only economic issues. He also spoke of the recommendations that Arcep set out in a dedicated report, to limit the influence that devices (smartphones, tablets, voice assistants) have on internet openness.
The afternoon’s other highlights included interesting discussions on data economics, the markets being built around these data, the competition issues they create and the regulatory questions they raise.
In a report on content and terminal equipment, the BEREC Markets and Economic Analysis group analysed the issue of internet openness by focusing on device manufacturers and operating system providers. Because the European regulation of 2015 does not impose any restrictions on the latter, the aim was to determine whether devices and operating systems were capable of restricting open access to online content.
The report points up the importance that applications have in providing internet access, and so the key role of app stores that have to the power to filter these apps. It also raises the question of the real possibility of users having an operating system that enables fully open internet access. BEREC thus deems it appropriate to monitor the development of device and operating system markets, and to employ data-driven regulation, by pushing for transparency on manufacturers’ and providers’ practices.
According to Pierre Moscovici, European Commissioner for Economic and Financial Affairs, the actual effective tax rate for large corporations is 9%, compared to 23% for every other enterprise in Europe. This is why, in late March, the Commission will introduce a corporate tax reform so that every business pays taxes according the principle that “profits should be taxed where value is created”. The idea is to identify indicators, such as number of clicks, number of IP addresses, amounts allocated to advertising, then to find mechanisms for taxing not only the GAFA heavyweights, but also service industry companies such as Airbnb and Booking.com.
In Germany as well, the issue of how to tax digital industry companies is on the table, as revealed by the coalition talks that are to result in the formation of a new government.
Just over a year after having adopted its net neutrality guidelines, last December BEREC published a report that delivers a scorecard for the first months of implementing net neutrality rules across Europe. Drawing on the 28 national reports published last June, and discussions between national experts on their own experiences, the report welcomes the consistency of national regulatory authorities’ (NRA) approach to practices that undermine net neutrality (blocking apps, discriminatory traffic management, etc.) and stresses that certain commercial practices that could have an impact on users’ rights, such as zero rating, warrant close analysis. The report underscores the importance of the dialogue between NRAs with BEREC, to ensure the consistent enforcement of European regulation.
In 2018, BEREC will draw on this initial experience to assess the enforcement of the Open Internet rules and the guidelines adopted in August 2016. This assessment report to be published in December 2018 will help inform the European Commission’s own assessment in 2019.
Why does Arcep have to notify its market analysis decisions to the European Commission before it can adopt them? According to the European “Framework” directive of 2002, national regulatory authorities must notify their draft decisions on the markets to be regulated, the designation of SMP operator(s) and the remedies applied. The process of notifying decisions to the European Commission is a lengthy one, involving several pre-notification meetings at which Arcep was required to provide details on its draft decisions that will have a decisive influence on market structure.
Following notification of the decisions on broadband and superfast broadband markets, the Commission issued no objections to their adoption by Arcep. It did, however, make two observations and, echoing them, Arcep reiterated that it would be mindful of ensuring that Orange puts into practice the changes it announced for remedying the operational problems that its competitors have experienced in marketing fibre access in France.
To find our more about the analysis decisions on fixed broadband and superfast broadband markets for 2017-2020
In October, BEREC decided to design a common tool for all European regulators, allowing each of them to measure the quality of fixed and mobile internet access services. Thanks to this tool, European NRAs would also be able to detect forbidden traffic management practices (such as blocking or restricting access to certain applications). Still in the design stage, the core elements of this common tool will be available in late 2019.
Now that the European Council and Parliament have ratified their negotiation mandate on the “Telecoms code,” three-way talks have begun between the European Council and the European Parliament, before the European Commission, and will run until early 2018. Several decisive issues will need to be resolved during these discussions: the role of independent regulators, conditions governing access to spectrum, and the scheme for the new network components subject to co-investment.
Moreover, on 2 October the European Parliament Committee on Industry, Research and Energy (ITRE) adopted a report on the draft regulation on BEREC, the Body of European Regulators for Electronic Communications. Contrary to the European Commission’s proposal, which would transform BEREC into an agency, the adopted report preserves the current structure that enables efficient cooperation between independent NRAs, while also bringing improvements to it.
Report on the draft regulation on BEREC
On 13 September the European Commission published its latest proposal on the free flow of non-personal data. Its core purpose: to lift any obstacles to data mobility. This proposal aims to stimulate innovation and unleash opportunities for the data economy in the European Union, at a time when the Internet of Things is growing exponentially.
The proposal is currently going through Europe’s legislative channels, and could come into effect at the national level by 2020. It will also be debated by European leaders at the European Digital Summit in Tallinn on 29 September.
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After several years of negotiation (see The Post No. 9 – “Arcep telling it like it is”), users in Europe have been able to “roam like at home” since June 15th!
This means that users travelling in any European Union country can make phone calls and send text messages and MMS at no extra charge, just as they would at home in France. To limit potential abuses of this new provision, operators may cap data traffic beyond a certain threshold, and could bill customers a (capped) surcharge. This is a major milestone in furthering the creation of the Digital Single Market, but also for users from the French overseas territories when travelling in other parts of France.
Arcep will be especially mindful of ensuring that operators comply with their newfound obligations.
And European regulators operating within BEREC will work to ensure that these rules are enforced in a consistent fashion across the European Union.
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On 11 May, the Body of European Regulators for Electronic Communications (BEREC) published 12 technical papers on the review of the European regulatory framework, and so delivering a follow-up to the BEREC opinion published in December 2016.
These papers provide European lawmakers with proposed amendments and improvements in areas such as co-investment, symmetric regulation, duration of spectrum rights and the proposed reform of BEREC.
The twelve papers can be accessed here.
1,341… That is the number of amendments to the draft of the European Electronic Communications Code filed to date in the European Parliament, since the code was first proposed by the European Commission in late 2016. The European Parliament committee responsible for the dossier has until 11 July 2017 to reach a compromise over the text. In the meantime, the EU Council, the other European co-legislator, is continuing its own reading of the draft text. Once each institution has achieved its own consensus, they will be able to began three-way discussions with the European Commission, and reach an agreement.
Every year, the European Commission compares the 28 Member States’ digital performance thanks to its Digital Economy and Society Index. Broadband and superfast broadband coverage and take-up rates, digital skills amongst the population, use of e-commerce and e-government services are among the indicators that make its possible to help Member States to identify those areas where they need to invest more and take action to achieve a digital single market in Europe.
What stands out from the findings published in early March?
At the European level:
- 76% of European households have access to a superfast connection (≤ 30 Mbit/s);
- 4G networks cover 84% of the European population;
- 79% of Europeans use the internet at least once a week;
- 34% of internet users complete administrative forms online rather than using hard copies.
And what about France?
France ranks 16th, below the European average, in terms of superfast broadband coverage and take-up and in internet use. It scores highest in the areas of e-government (9th) and digital skills amongst the population (9th).
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On 31 January, representatives of the European Parliament, Council and the European Commission reached an agreement over lowering the prices that mobile operators charge one another when their customers use other networks when travelling in another European Union countries.
These prices, also referred to as wholesale prices, will be capped as follows:
- 3.2 cents per minute of voice call, as of 15 June 2017;
- 1 cent per SMS, as of 15 June 2017;
- A step by step reduction over 5 years for data caps decreasing from €7.7 per GB (as of 15 June 2017) to €6 per GB (as of 1 January 2018), €4.5 per GB (as of 1 January 2019), €3.5 per GB (as of 1 January 2020), €3 per GB (as of 1 January 2021) and €2.5 per GB (as of 1 January 2022).
The Parliament’s formal adoption of this agreement in May will mark the final step needed to abolish the additional international roaming charges that users in the EU have to pay, and due to come into force on 15 June 2017.
European Commission press release
As part of its Digital Single Market strategy, on 10 January the European Commission unveiled its action plan for “Building a European Data Economy”. It will explore cross-border projects on “cooperative connected and automated mobility (CAD) that allow vehicles to connect with each other and with roadside infrastructure”. The conditions of use for 5G and the Internet of Things may also be explored. Here again the aim is to encourage the portability of non-personal data, and their free flow within the EU.
What are the advantages of the free flow of data?
Weather forecasts, customised healthcare, better road safety, fewer traffic jams… the advantages are many and various. Moreover, in 2015 the European Commission estimated that the data-driven economy would represent €272 billion in the European Union (with 5.6% annual growth) and could be employing 7.4 million people by 2020.
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European ministers responsible for digital affairs met in Brussels on 2 December during a session of the Council of the EU devoted to telecoms. Along with the Parliament, the Council, which represents Member States' governments, is one of the European Union's main decision-making bodies, where European laws are examined, amended and adopted.
At the heart of these Council debates were:
- the planned elimination of roaming tariffs on 15 June 2017;
On 7 November, the European Commission endorsed France's "Plan très haut debit" superfast broadband scheme, saying it is compatible with European rules on State aid. This plan, which aims to provide complete nationwide superfast broadband coverage by 2022, has projected an investment of €13 billion on superfast network rollouts in France, including €3 billion in State subsidies. The European framework requires a guarantee that public financing does not replace private funding, to ensure proper use of public monies, Commission also ensures that the networks this spending will finance will provide full access to all operators in a non-discriminatory fashion, at access prices that will be supervised by Arcep.
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La Commission européenne l'a annoncé le 21 septembre dernier : les particuliers comme les entreprises pourront utiliser leur offre mobile en itinérance au sein des pays de l'Union européenne sans frais supplémentaires à partir du 15 juin 2017.
Restent à définir certaines mesures accompagnatrices, actuellement en discussion au sein des instances européennes :
- la Commission européenne doit adopter, avant le 15 décembre 2016 après avis du BEREC, l'organe des régulateurs européens, un acte d'exécution pour éviter d'éventuels usages abusifs ;
- le Parlement européen et le Conseil de l'Union européenne négocient en parallèle la révision du marché inter-opérateurs de l'itinérance.
The current regulatory framework for telecommunications in Europe is based on directives adopted in 2002 and 2009. To adapt to rapid and ongoing developments in the sector, the European Commission has just published a complete review of the legislation, with two major objectives in mind:
- connectivity: give regulators and the sector's stakeholders the tools they need to meet Europe's increasingly ambitious fixed and mobile coverage targets, in a way that benefits both the economy and digital society;
- innovation: ensure the regulatory framework keeps pace with the rapid development of communication technologies (5G, the Internet of Things, OTT).
It is now up to the European Parliament and Council to examine these proposals and discuss them. European NRAs will take part in this debate, notably through BEREC (Body of European Regulators for Electronic Communications), of which Arcep will be Chair in 2017.
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