Paris, 21 December 2015
This opinion, which was adopted and submitted to the Government on 12 November 2015, concerns the version of the draft legislation transmitted to the Conseil d'Etat and made available online on 6 November 2015.
The opinion's main conclusions are the following:
The Digital Republic bill contains ambitious measures aimed at strengthening the protection of individuals and building their trust in the digital economy and the digital society.
On the matter of net neutrality, ARCEP welcomes the measures contained in the bill that enable the implementation of regulation establishing open internet access measures. It nevertheless invites the Government to draw all of the necessary conclusions regarding the significant change in position for ARCEP resulting from its newfound mandate of net neutrality watchdog, notably by listing safeguarding the Internet's open and neutral nature among the objectives assigned to ARCEP and the Minister responsible for electronic communications, and by strengthening the effectiveness of their powers of inquiry and investigation to this end.
The draft legislation also seeks to define regulations for certain digital activities. If ARCEP fully supports the stated objectives, it calls the Government's attention to the highly innovative nature and international dimension of these activities. At a time when Europe's regulatory framework is under review (fourth Telecoms Package, Digital Single Market, general data privacy regulation), market players' ability to innovate must not be stifled, nor must France become isolated within Europe. ARCEP therefore invites the Government, insofar as possible, to favour solutions based on flexible laws and regulation over defining new sector-specific regulations which, given the market's permanent state of development, run the risk of being too rigid and quickly obsolete.
On the matter of registered e-mail, ARCEP expressed serious reservations about the provisions contained in Article 36 of the bill, and believes that technical and legal work needs to be done beforehand, to define a coherent and consistent framework for these products and services. ARCEP suggests that this work be carried out as part of a task force, to which it could contribute in a useful way. In any event, should the provisions in the bill be adopted, ARCEP stresses that, as it was not consulted by the Government, it was unable to anticipate any new responsibilities it might be assigned, and cannot ensure they are fully met without additional means.
Lastly, ARCEP welcomes the introduction of measures, both general in scope and sector-specific, in support of Open Data. Taking the State-platform approach promoted by the Government in its digital strategy, it suggests implementing a discretionary mechanism for ARCEP approval, encouraging the dissemination of clear and comparable information concerning the sectors that fall under the Authority's purview.
