December 2009 was momentous for the electronic communications sector. The amendments to the regulatory framework were finally officially published, after an exhaustive three year process of review. Mrs. Reding's reign as Commissioner of DG Information Society will come to an end, as President Barroso’s announced his new slate of Commissioners for the 2010-2014 term, initiating Mrs. Neelie Kroes to the DG Digital Agenda portfolio.
The framework amendments were adopted in the form of two directives and one regulation. The directives are labeled (a) the "Better Regulation" directive, amending the existing directives on the regulatory framework, access and authorizations; and (b) the "Consumer Rights" directive, amending existing directives on universal service and data privacy, plus the regulation on enforcement of consumer protection laws. These two directives are complemented by a regulation establishing a new regulatory body called the European Body of Telecoms Regulators, called "BEREC" for short.
This suite of legislation was first proposed in November 2007, after the Commission had conducted well over a year of consultations on review of the existing regulatory framework. Given the size of the industrial sectors affected by the review and the importance of electronic communications to the entire European economy, it is no wonder that the legislative process took so long to be resolved. An additional factor greatly affected the end stages of the review, however, leading to fears that the entire process would grind to a halt. By overwhelming majorities, the European Parliament adopted an amendment that guaranteed the right of access to Internet services to European citizens, protecting them against regulatory service interruption without protection of judicial rulings. Weighed against this position were the Member States, through the European Council, which sought to preserve authority to order service cut-offs for internet downloading of pirated copyrighted materials. The prime example of this authority was the French "three strikes law" which permits administrative proceedings plus some level of judicial review to cutoff access for unlawful downloading.
A compromise was agreed between the Parliament and the Council in the early hours of the morning on November 5. The agreed text on Internet access gives some level of protection for access without totally tying the hands of national legislators. The entire Parliament and Council quickly approved the deal, on November 20 and 24 respectively. The package was signed on November 25 and scheduled for publication on December 18.
With publication, the package comes into effect immediately, although Member States have 18 months in which to adapt their national legislation, i.e. by June 2011. The Commission said it would establish BEREC in the early months of 2010.
The most important elements of the new package will differ radically based on the point of view of the observer. From our perspective, the main six categories of change involve:
- Strengthened Regulatory Institutions, including creating of BEREC and provisions on national regulatory authorities;
- Provisions on defining and regulating Markets, including changes to the Framework and Access directives, in particular provisions on market definitions and a Commission veto, functional separation as a new remedy and sharing network elements;
- Spectrum Reform, including changes to the Framework and Authorization directives, most significantly new provisions on technology and service neutrality;
- Network Security and Neutrality, involving changes to the Universal Service and Framework directives;
- Data privacy provisions strengthened in the ePrivacy directive; and
- Internet Freedom, arising from the last minute compromise in the Framework directive, plus an associated Declaration on Internet Freedom that will lead to further Commission review in 2010.
The package was published in the Official Journal on December 18, 2009 (Official Journal of the European Union L337, Volume 52). The published texts of the agreed package is available here. After striving to conclude the framework review through so many years, it will not be Commissioner Reding who oversees enforcement. On November 27, Commission President Barroso announced his new set of Commissioners: Mrs. Reding moves to DG Justice, to be replaced by Mrs. Kroes moving from DG COMP. At the time of writing, it appears the name of the directorate general will be changed to the Digital Agenda DG.
The new Commission must gain approval from the European Parliament before it takes office for a term of office running until October 31, 2014.
Commissioners-designate will appear in individual hearings before Parliamentary committees from January 11 - 19, 2010. The vote of consent on the new Commission as a whole is foreseen to take place on January 26, with the Commission taking office on February 1.