On February 12, 2021, the Council of State (« Conseil d'Etat ») – France’s highest administrative court - ordered ARCEP to repeal restrictions on international calls and communications via automated systems. We describe hereafter the consequences of such decision for operators and companies.

Which provisions were overturned by the Council of State?

Like other European regulators, on July 24, 2018 ARCEP modified the National Numbering Plan in order to tighten the conditions of use of numbering resources. This decision intended for combatting fraudulent or abusive services therefore concerned the numbers that provide access to them. The regulator had adopted the following two measures in particular:

- a ban on the use of mobile (06-07), non-geographic now called multi-purpose (09) or geographic (01-05) numbers by automated calling and SMS/MMS systems, and

- the prohibition of multi-purpose and geographic numbers for international calls (unless an authentication mechanism is in place).

The telephone solicitation industry challenged the legality and legitimacy of these measures. A professional association (AFRC) and a union (SP2C) representing this sector asked ARCEP to repeal these provisions. Faced with the silence kept by ARCEP, the claimants brought the matter before the Council of State in order to challenge the regulator’s implicit decision of rejection and have the disputed provisions of the National Numbering Plan annulled.

In its decision of February 12, 2021, the High Administrative Court ruled that ARCEP had exceeded its jurisdiction by adopting the two measures. Consequently, the Conseil of State ordered ARCEP to repeal them within two months.

What are the practical consequences of this decision?

Slight change for international calls

The decision of the Council of State does not remove the ban on the use of multi-purpose and geographic numbers for international calls. In fact, the Naegelen law of July 24, 2020 incorporated two new obligations for operators into Article L.44 of the French Post and Electronic Communications Code:

- Since October 25, 2020 and for a period of 3 years: the obligation to block the issuance and routing of calls and SMS/MMS made outside the European Union and presenting a French number as caller ID (international filtering obligation). The law exempts mobile numbers (06 - 07) and allows ARCEP to provide an exemption for special numbers;

- from October 25, 2023: implement an interoperable caller ID authentication mechanism between operators, which will replace international filtering.

Until October 25, 2023, operators will therefore have to continue to filter international calls. The rules of the Naegelen Law - which are the only ones that apply today - can be considered more restrictive than those that were existing until then in the ARCEP Numbering Plan. Indeed, in the absence of the adoption of this law, the provisions annulled by the Council of State would have allowed companies to use geographic (01 - 05) and multipurpose (09) numbers when they mandated a third party to make calls from abroad or when they were established abroad, if technical measures had been put in place by their operator to guarantee the absence of usurpation of the number. This exemption is not included in the Naeglen Law.

A strict interpretation of the law could therefore lead to the blocking of calls made by large companies trading legally in France, from a head office or call centre located outside the European Union. It is therefore prudent to question ARCEP if this is the case.

• The end of restrictions on calls via automated systems

This decision of the Council of State must allow again companies and call centers to use, via automated systems of call and SMS/MMS sending, mobile (06 - 07), multipurpose (09) or geographic (01 - 05) numbers.

It puts an end to the uncertainty that existed for companies regarding the possibility of using systems that combine computerized call management and telephony (predictive dialling systems), which are very widespread today.

In addition, operators are no longer obliged to set up a detection and filtering system for calls from automated systems. The complexity of implementing this system had also led to the postponement of the measure to January 1, 2021 for multi-purpose (09) and geographic (01 - 05) numbers.

The decision of the Council of State is available here.