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European Commission begins legal action against countries that have still to implement telecoms laws

Most EU countries have two months to explain why they have not yet implemented new telecoms laws, the European Commission has said.20 Jul 2011

The Commission has written to 20 EU member states that have not yet introduced national laws to fully comply with the requirements of the EU Telecoms Package of reforms, it said.

The Telecoms Package of reforms was passed in late 2009 and had to be implemented into national law by 25 May this year. The new telecoms laws detail new rights for consumers in using phone, mobile and internet services.

Only seven countries, including the UK, have fully complied with its requirements, the Commission said.

The Commission said it had sent letters of formal notice to the 20 countries. The letters are the first legal stage open to the Commission when it identifies infringements from countries that have not enacted EU laws. The letters require member states to detail their views on any infringements they may have made, according to the Commission.

Countries that do not comply with the requirements of EU law could be referred to the European courts, the Commission said.

The twenty member states are Austria, Belgium, Bulgaria, Cyprus, Czech Republic, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, The Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia and Spain and must reply to 'letters of formal notice' within two months, the Commission said in a statement.

"If they fail to reply [to the letter of formal notice] or if it is not satisfied with the answer, the Commission can send the member states concerned a formal request to implement the legislation, and ultimately refer them to the European Court of Justice (ECJ)," the Commission said.

The ECJ can order EU member countries to implement EU Directives and fine them if they do not.

"Member states tend to comply with their obligations under EU law before a reference to the European Court of Justice is necessary, with over 90 per cent of infringement cases being resolved prior to a referral", said Claire McCracken, a technology law specialist with Pinsent Masons, the law firm behind OUT-LAW.COM.

All 20 member states have begun the process of drawing up new laws and a number have introduced measures implementing some of the new telecoms laws requirements, but only the UK, Denmark, Estonia, Finland, Ireland, Malta and Sweden have fully implemented the new rules, the Commission said.

The Telecoms Package of reforms included amendments to the EU's Privacy and Electronic Communications Directive that detailed a new requirement for website owners to obtain consent from users to track their online behaviour through 'cookies'.

Cookies are small text files that hold information about internet users' activity on websites. Websites store cookies on users' computers in order to remember their behaviour.

The EU Directive said storing and accessing information on users' computers was only lawful "on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information … about the purposes of the processing".

An exception exists where the cookie is "strictly necessary" for the provision of a service "explicitly requested" by the user – so cookies can take a user from a product page to a checkout without the need for consent, for example.

Last month EU Commissioner Neelie Kroes warned that the Commission would use its "full powers" against countries that did not comply with the Directive. At that stage only five EU countries had implemented the new cookie laws.

The Commission though has been criticised by its own privacy watchdog, the European Data Protection Supervisor (EDPS), who said earlier this month that the Commission had offered inconsistent guidance on how member countries could comply with the new laws.

EDPS Peter Hustinx criticised Kroes for supporting self-regulatory methods developed by the online advertising industry.

Adverts that track users' behaviour will display an icon if businesses sign up to voluntary regulations that were set out by advertising associations in April. If users click on the icon they are taken to a website that will enable them to switch off behavioural adverts delivered by companies that use the icon.

Hustinx said the methods did not comply with the requirements of the Directive. He also criticised Kroes' support for 'do not track' measures developed in the US that allow users to request websites not to monitor their activity. The system relies on websites honouring the users' requests.

In the UK new regulations were made in order to implement the changed EU Directive, whilst the Information Commissioner's Office (ICO), the data protection watchdog, was handed extra powers to enforce compliance with the new laws by UK businesses.

The new regulations require websites to obtain "informed consent" to tracking from users.

The ICO issued guidance on how businesses could meet the new requirements. It has suggested websites can use 'pop-ups' that ask users directly whether they give tracking consent, but has also said companies could obtain users' agreement by specifying the right to track behaviour in website terms and conditions. The guidance is a "starting point for companies to get complaint" rather than a definitive guide on how to comply with the new law.

The ICO detailed a number of other features and settings options some websites could use to obtain consent but said it hoped web browsers would develop enhanced settings that would detail whether users consented to being tracked. The Government has announced it is working with Microsoft, Mozilla, Google and other browsers to help develop this technical solution.

The ICO recently said it was giving UK websites a year to address their use of cookies and introduce appropriate technical solutions that detail users' consent preferences. Websites that show they are working towards the 'informed consent' requirements will not face punishment for non-compliance during this time, the ICO said.

Technology law news is also available from Bootlaw, a free resource for technology start-ups, with regular events hosted by Pinsent Masons.

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