The Conseil d’Etat backs up ARCEP’s powers in interconnection and data routing markets, and confirms its ability to query all of the players in theses markets, including those located outside the European Union

Paris, 10 July 2013

Through an important decision dated 10 July 2013, the Conseil d’Etat (France’s highest administrative court) confirmed the legality of ARCEP’s decision of 29 March 2012 on gathering information on the technical and pricing conditions governing interconnection and data routing.

The ARCEP decision had been disputed by American carriers AT&T and VERIZON (MCI Communications Services), and by their French subsidiaries.  

The information gathering system that ARCEP introduced concerns the interconnection and data routing markets. These markets are home to complex and potentially strained relationships between internet service providers (ISP), providers of public online communication services (PPOCS) and technical intermediaries such as transit operators and content delivery networks (CDN). ARCEP considered that regular, twice-yearly information gathering campaigns were vital to the regulator’s ability to ensure that these markets run smoothly over time from a technical and economic perspective, particularly in relation to ARCEP’s ability to settle any possible disputes that might arise between ISPs and providers of public online communication services.
The Conseil d’Etat confirmed that ARCEP has the power to gather information in this way from ISPs and PPOCS. The Court thereby also upheld ARCEP’s power to query all market undertakings, including those located outside the European Union whose business and/or activity could have a significant impact on internet users in France.
The Conseil d’Etat also concluded that ARCEP’s information gathering campaigns were necessary and proportionate to the regulator’s ability to meet the responsibilities assigned to it by law, notably in light of the net neutrality provisions resulting from the transposition of the EU’s third Telecoms Package.

This decision from the Conseil d’Etat thus supports the measured approach to net neutrality that ARCEP has taken to date.