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European Electronic Communications Code finalised

A 'European Electronic Communications Code' has been finalised by EU law makers, with the new rules, on issues such as the rights to install new telecoms equipment and the use of radio spectrum, set to take effect before the end of 2020.06 Dec 2018

The Council of Ministers announced that it had approved a new directive establishing the Code (485-page / 2.93MB PDF) on Tuesday, with the legislation set to be formally written into EU law before Christmas.

The new EU directive represents an attempt to harmonise telecoms regulation across the EU, although many provisions are already reflected in national laws within the EU, including in the UK. The UK already has an Electronic Communications Code. It sets out rights and obligations regarding the deployment and maintenance of mobile phone masts and other telecoms infrastructure.

The new EU Code is broader in scope, however, and addresses a number of areas of telecoms law beyond rights of telecoms companies to install telecoms equipment on public or private property. It will impact both the activities of telecoms network and service providers as well as the national regulators in the EU countries they operate.

"This is another example of how the regulatory landscape continues to develop to help level the playing field for industry and support greater broadband penetration and consumer access and choice," said technology law expert Natalie Trainor of Pinsent Masons, the law firm behind Out-Law.com.

High-level rules on the co-location or sharing of "network elements and facilities" are set out in the directive for EU countries to expand upon with their own legislation.

The directive also promotes "strategic planning, coordination and harmonisation of the use of radio spectrum" within the EU, and stipulates conditions on the rights of use for radio spectrum. It also envisages that EU countries will coordinate with one another on their assignment of certain blocks of spectrum for the purposes of enabling new '5G' services to be provided.

The directive also requires governments across the EU to ensure that consumers have access to "affordable" broadband services throughout their "territories". In the UK, a universal service obligation for broadband has already been written into law. On Wednesday, Ofcom, the country's telecoms regulator, announced the provisional universal service providers.

The legislation also sets out how telecoms regulators might intervene to address competition concerns associated with cases where companies in telecoms markets have significant market power. It includes setting out a procedure for the national regulators to follow for identifying and defining markets and for analysing those markets, as well as the range of remedies available to them.

Further rules will require businesses that have been designated as having significant market power to engage with national regulators before migrating from legacy infrastructure, including "infrastructure necessary to operate a copper network".

It will be the duty of regulators to "ensure that the decommissioning or replacement process includes a transparent timetable and conditions, including an appropriate notice period for transition, and establishes the availability of alternative products of at least comparable quality providing access to the upgraded network infrastructure substituting the replaced elements if necessary to safeguard competition and the rights of end-users", according to the directive.

Security requirements and incident reporting rules for providers of public electronic communications networks or services are also set out in the directive. They include powers for regulators to require providers to submit to security audits.

In the UK, Ofcom already has powers, under the Communications Act, to require a network or service provider to submit to, and pay for, an audit of the measures they are taking to comply with their security obligations. The regulator has provided guidance on the security requirements providers of public electronic communications networks or services are subject to under the Act.

Among the directive's other provisions are rules governing what information retail telecoms service providers need to provide in consumer contracts, and which restrict the contractual period the companies can require consumers to sign up to. Further provisions are aimed at helping consumers to switch easily between internet providers.

The directive will also require national authorities to "conduct a geographical survey of the reach of electronic communications networks capable of delivering broadband".

According to the Council of Ministers, the new legislation is set to be signed by both it and the European Parliament on 12 December and published in the Official Journal of the EU on 17 December. The legislation will then enter into force three days after publication, and will need to be implemented into national laws across the EU within two years of the entry into force date – 20 December 2020 if the timetable scheduled is followed.