A new EU Directive, adopted on 15 May 2014, will have important implications for Irish communications and utilities networks operators (e.g. gas, electricity, water, roads, rail, ports and airports). The impact of the Directive will also extend in some cases to planning authorities and the building industry.

New Infrastructure Obligations

Directive 2014/61/EU (the “Directive”) adopts ambitious measures intended to reduce the cost of deploying high-speed electronic communications networks.  It obliges Member States to pass laws by 1 January 2016 (to take effect by no later than 1 July 2016) requiring that all public communications networks operators and utility networks operators must:

  • meet all reasonable requests for access to their infrastructure from public communications networks operators (e.g. fixed and wireless broadband providers) with a view to deploying high speed electronic communications networks i.e. broadband networks capable of delivering broadband access speeds of at least 30Mbps;
  • give advance information about their infrastructure to public communications network operators to facilitate access requests (e.g. location, route, type and current use of their infrastructure and a contact point)
    • subject to considerations such as network security and integrity, national security, public health or safety, confidentiality, operating and business secrets;
  • meet any reasonable requests to co-ordinate civil works with public communications networks operators with a view to deploying high speed electronic communications networks. This obligation will apply to direct or indirect civil works which are fully or partially financed by public means. Requests may be refused where they would entail additional costs for the original works (including due to delays), would impede control over the coordination of the works or where  the request is not made within certain timeframes;
  • give advance notice of on-going or planned civil works including the location and the type of works, the network elements involved, the estimated start date of the works and their duration and a contact point, with a view to facilitating  civil works co-ordination requests; and 
  • meet reasonable requests for on- site surveys of specific elements of their infrastructure from public communications networks operators with a view to deploying high speed electronic communications networks.

The new obligations must be met in very prompt timelines with the possibility for appeals to a dispute settlement body (likely in Ireland to be ComReg) which may make binding decisions on disputes.

Member States are permitted to provide for certain exceptions to these obligations which are set out in the Directive (e.g. in respect of the access obligation: technical suitability, availability of space, safety and public health, integrity and security of the network, interference with other services and the existence of viable alternative means of wholesale access). In principle, however, the onus will now be shifted to infrastructure providers to justify the application of an exemption.

To what infrastructure will the new obligations apply?

The new infrastructure obligations will apply to the following network operators:

  • entities providing or authorised to provide public communications networks;
  • entities providing a physical infrastructure intended to provide a service of production, transport or distribution of:
    • gas;
    • electricity, including public lighting;
    • heating;
    • water, including disposal or treatment of waste water and sewage, and drainage systems (but excluding elements of water networks used for the provision of water intended for human consumption); and
  • entities providing a physical infrastructure intended to provide transport services, including railways, roads, ports and airports.

The obligations imposed on network operators apply to their “physical infrastructure”, which is any element of a network which is intended to host other elements of a network without becoming itself an active element of the network e.g. pipes, masts, ducts, inspection chambers, manholes, cabinets, buildings or entries  to buildings, antenna installations, towers and poles. Cables, including dark fibre,  are not physical infrastructure within the meaning of the Directive.

Other Significant Provisions of the Directive

New and renovated buildings – broadband- ready obligations

Another  significant  development  relates  to the  requirement  that  Member  States  ensure that all newly constructed buildings and buildings  which  undergo  major  renovation works for which applications for planning permission are submitted after 31 December 2016 must be equipped with infrastructure intended to host or deliver broadband access services with speeds in excess of 30Mbps. The same obligation applies in respect  of  multi-dwelling  buildings,  such  as apartments,  which must  be equipped with physical access points available to public  communications  network  operators. Important access obligations will also be imposed  with  respect  to  communications network access points. Member States must ensure that the holders of a right to use a network access point and associated in-building communications infrastructure must meet all reasonable requests for access from public communications network operators under fair and non- discriminatory terms and conditions including price.

Changes to planning permission procedures

Significant harmonisation measures will apply to planning applications in respect of civil works required to deploy high speed electronic communications networks. Member States must make all relevant information concerning the conditions and procedures applicable for granting permission in respect of such matters available via a single information point. Member States are required to stream-line their timeframes for granting such applications (with a four month indicative timeframe) and must provide for compensation measures for network operators who suffer damage as a result of non-compliance with these timelines.

Comment

Once implemented, the Directive’s measures will have far-reaching impacts not only for the communications sector but for those utility network operators which will be required to facilitate broadband roll-out by providing access to and co- ordinating civil works with respect to their network infrastructure.

In addition, the Directive is a measure of minimum harmonisation and the Irish government may impose obligations beyond those in the Directive.

The time table for implementation is short

  • 1 July 2016.Communications operators, other  network  operators,  public  bodies, planning  authorities  and  the  building industry should take steps now to identify the impact of these important changes for their   businesses.