The EU Communications Code – Time to get to work
By 21 December 2020, EU member states shall adopt and publish legislation necessary to comply with the European Electronic Communications Code (Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code, OJEU L 321/36, 17.12.2018 – "the Code”). As the Code is addressed at member states and does not have the level of detail of an EU regulation, transposition into national law will require substantial amount of work. The legislation shall be applied in EU member states from 21 December 2021.
Adaptations to the Code are being discussed between the EU and EFTA and the Code has yet to pass the EEA committee. No national public consultation has therefore yet been implemented in Norway. Although Norway has a good record of accomplishment in fulfilling obligations to transpose directives, such transpositions are often delayed due to the EU/EFTA consultation for reasons of in particular national sovereignty, and the fact that Norway, as not being member of the EU, cannot due to the Constitution submit to the authority of EU institutions. In a letter of 23 July 2020, the EFTA Surveillance Authority ("ESA") in connection with review of the Norwegian Communications Authority's ("Nkom") draft decision on requiring Telenor to delay decommissioning of the copper network for 5 years (e.g. until September 2025) noted that the Authority understands that it will enter into force in Norway prior to the finalisation of the replacement of Telenor’s copper network. One would certainly hope that the Code will be implemented in Norway well before the fall of 2025; 4 years after the Code will be implemented in the EU. Indeed, it is expected that the Ministry of Local Government and Modernisation, under which ecom legislation falls, will initiate the public consultation this year.
Regardless of the pace of the Norwegian transposition process, it should be noted that both the ESA and Nkom have started to align its decisions with the content of the Code even before it has formally been adopted. In its draft decision on Telenor's decommissioning of the copper network – in the English version notified to the ESA on 30 June 2020 - Nkom noted in section 146 that Nkom also remarks that the process outlined by Telenor for migration from copperbased broadband infrastructure to fibre- and mobile-based broadband infrastructure also deviates from the procedure outlined by the new framework for regulation of electronic communication services. In this respect, Nkom refers to Article 81 of the [Code]. In its letter of 23 July, the ESA also found support for its position by referring to the Code as it stated that the obligations proposed by Nkom were aligned with Article 81 of the [Code]. Nkom maintained the reference to the Code article 81 in section 145 of its final decision of 2 September 2020.
Based on the fact that both the ESA and Nkom have already started glancing at the Code to find support of their decisions well before formal adaptation of the Code in Norwegian legislation, there is good reason not to await the public consultation, but to get to work to understand the Code and it effects already now.
The Code replaces four of the original five directives of the 2002 ecom package (framework, authorisation, access and USO directives). Services on new platforms (including M2M), internet access and an important distinction between number-based and number-independent interpersonal communications service are introduced in the Code. The Code regulates also i.a. conditional access systems (CAS) for broadcasting; APIs made available by broadcasters or service providers; the new concept of total conversation service; and emergency communication, including by way of text messaging.
The main purposes of the Code are to increase consumer protection by way of a set of totally harmonized rules, stimulate investments in and construction of broadband networks in an efficient manner. Market analysis are to be more detailed and the tools to regulate SMP actors will be relaxed if the SMP actor give competitors reasonable opportunity to co-invest in construction of broadband networks.
It is not our ambition at this time to present the specifics of the Code. Our main message is to recommend not putting aside detailed study of the Code. The Code contains the new rules of the ecom game, and arguments therefrom may to some extent be used already now. So, time to get to work!