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17.3.6.  Telecommunications in the EU

    Digital technologies, developed by the information industry, allow the integrated transmission of sound, text and image in one communication system and project Europe into the information era, radically changing the modes of consumption, production and organisation of work. On the other hand, advanced communications technologies and services are a vital link between industry, the services sector and market as well as between peripheral areas and economic centres. These services are therefore crucial for consolidation of the internal market, for Europe's industrial competitiveness and for economic and social cohesion in Europe. They can also contribute to social progress and to cultural development.

    The common policy on telecommunications is developing since the 1990s around four axes: the creation of a single market of telecommunications equipment and services; the liberalisation of telecommunication services; the technological development of the sector with the assistance of European research; and the balanced development of the regions of the Union by means of trans-European telecommunication networks.

    The regulatory framework for telecommunications terminal equipment follows and affects the new approach to standardisation, testing and certification that we have examined in the chapter on the common market [see section 6.2.3]. A Council Decision and a Resolution on standardisation in the field of information technology and telecommunications pursue the objective of creating a European market in telecommunications equipment [Regulation 1025/2012]. Such standardisation of information technology and telecommunications prevents distortions of competition and ensures exchanges of information, the convergence of industrial strategies and, ultimately, the creation and exploitation of a vast European information technologies and telecommunications (IT&T) market. European standards are used in many common policies, above all those connected with the single market, eEurope [see section 17.3.5], general product safety and environment protection. A Directive establishes a single market for radio equipment and prescribes the mutual recognition of their conformity based on the principle of the manufacturer's declaration [Directive 2014/53].

    European institutions and standardisation bodies endeavour to ensure the coherence with the regulatory framework applicable to information equipment in order to meet the challenge of interoperability. The Commission collates requirements with regard to standardisation on the part of users and establishes the priorities of a work programme, which is entrusted to the CEN (European Committee for Standardisation) and the CENELEC (European Committee for Electrotechnical Standardisation), with the participation of the CEPT (European Conference of Postal and Telecommunications Administrations). In addition to the European Telecommunication Standards Institute (ETSI), private organisations representing industry and consumers are involved in the pre-standardisation process and in the effective application of harmonised standards in the Member States, including for public contracts.

    The creation of a single market in telecommunications services necessitated the progressive liberalisation of telecommunications markets, which were traditionally State monopolies. Telecommunications services had to be liberated and conditions of free provision of services by the networks had to be defined. To pursue this objective, which represents the second axis of the European policy in this sector, the Commission adopted a Directive based on Article 90 of the EEC Treaty [Article 86 TEC], requiring Member States to introduce arrangements ensuring free competition on the European market in telecommunications terminal equipment (modems, telex terminals, receive-only satellite stations, etc.) [Directive 2002/77, see section 15.5.4]. This Directive gives users the possibility of connecting terminal equipment, which they are able to procure freely without being obliged to apply to a single national telecommunications authority. Through its successive amendments, the Directive entitles suppliers of telecommunications services to use capacity on cable television networks for all telecommunications services, primarily data communications, "closed" corporate networks and multimedia services. It also requires Member States to abolish the exclusive and special rights remaining in telecommunications, the restrictions on the installations used for mobile networks and the obstacles to direct interconnection between such networks. Last but not least, the Commission Directive provided for the complete liberalisation of voice telephony and telecommunications infrastructures on 1 January 1998.

    Liberalisation of telecommunications services cleared the way for the creation of the single telecommunications market. This is the aim of the "telecoms package", adopted in 2002. The package constitutes a single regulatory framework covering the converging telecommunications, media and information technology sectors. It is made up of a framework Directive and four specific Directives concerning access, authorisation, universal service and protection of privacy. National regulatory authorities must contribute to the development of the internal market by cooperating with each other and with the Commission to ensure the consistent application, in all Member States, of the provisions of those Directives.

    Directive 2002/21 established a harmonised regulatory framework for electronic communications networks and services across the EU. This Directive covers all electronic communications networks and services within its scope, namely: transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed (including Internet) and mobile terrestrial networks, electricity cable systems, networks used for radio and television broadcasting, and cable television networks. It sets out a number of principles and objectives for regulators to follow, as well as a series of tasks in respect of management of scarce resources such as radio spectra and numbering.

    The aim of the "access directive" is to lay down a framework of rules that are technologically neutral, but which may be applied to specific product or service markets in particular geographical areas, to address identified market problems between access and interconnection suppliers [Directive 2002/19]. It covers, in particular, access to fixed and mobile networks, as well as access to digital broadcasting networks, including access to conditional systems and other associated facilities such as electronic programme guides and application programme interfaces. The directive provides legal certainty for market players by establishing clear criteria on their rights and obligations and for regulatory intervention. It indicates clearly what obligations concerning access and interconnection can be imposed in which circumstances, whilst at the same time allowing for sufficient flexibility to allow regulatory authorities to deal effectively with new market problems that hinder effective competition.

    The Commission has set out the competition rules to access agreements, which are central in enabling market participants, including new economic agents, to reap the benefits of liberalisation in the telecommunications sector [COM/96/649]. In order to stimulate competition and technological innovation and hence promote the availability of a complete range of telecommunications services, including broad-band multimedia and high-speed Internet services, newcomers should have access to "local loops", i.e. the physical circuits between the subscribers' premises and the telecommunications operator's local switch or equivalent facility in the local access network [COM/2000/237 and Recommendation 2000/417].

    The aim of the "authorisation directive" is to implement an internal market in electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions in order to facilitate their provision throughout the European Union [Directive 2002/20]. According to the Directive, "general authorisation" means a legal framework established by the Member State ensuring rights for the provision of electronic communications networks or services and laying down sector specific obligations that may apply to all or to specific types of electronic communications networks and services. The general authorisation system should apply to all such services and networks regardless of their technological characteristics and should limit administrative barriers to entry into the market to a minimum.

    As required by Directive 2002/21, the Commission has adopted guidelines on market analysis and the assessment of significant market power (SMP) for electronic communications networks and services [Commission guidelines]. As the framework directive gives a definition of a company with SMP, based on the concept of "dominant position" within the meaning of Article 82 of the EC Treaty [see section 15.4.1], the guidelines set out the principles that national regulatory authorities will apply in defining the relevant markets and assessing the existence of a dominant position on those markets. As a result of the deployment of interactive digital services using the "Multimedia home platform" standard, the only open standard for application programming interfaces (APIs) adopted by EU standards bodies, European citizens should have at their disposal an increasingly wide range of interactive television services [COM/ 2004/541].

    The aim of the "universal users" directive is to ensure universal service provision for public telephony services in an environment of greater overall competitiveness, with provisions for financing the cost of providing a universal service in the most competitively neutral manner and for ensuring a maximum of information transparency [Directive 2002/22, last amended by Regulation 2015/2120]. It also establishes the rights of users and consumers of electronic communications services, with corresponding obligations on undertakings, including the free provision of the European emergency number ''112'' [see section 9.2]. It aims to ensure the interoperability of digital consumer television equipment and the provision of certain mandatory services, such as leased lines. Finally, it lays down harmonised rules for the imposition of "must carry" obligations by Member States on network operators.

    The Regulation on roaming on public mobile telephone networks within the European Union  lays down rules aiming at ensuring that users of public mobile communications networks, when travelling within the Union, do not pay excessive prices for Union-wide roaming services in comparison with competitive national prices, when making calls and receiving calls, when sending and receiving SMS messages and when using packet switched data communication services [Regulation 531/2012, last amended by Regulation 2017/920]. It thereby contributes to the smooth functioning of the internal market while achieving a high level of consumer protection, fostering competition and transparency in the market and offering both incentives for innovation and consumer choice.

    The Regulation laying down measures concerning open internet access aims to establish common rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights [Regulation 2015/2120]. It aims to protect end-users and simultaneously to guarantee the continued functioning of the internet ecosystem as an engine of innovation. Reforms in the field of roaming should give end-users the confidence to stay connected when they travel within the Union, and should, over time, become a driver of convergent pricing and other conditions in the Union.

    Network and information systems, and primarily the internet, play an essential role in facilitating the cross-border movement of goods, services and people. Therefore, a Directive concerns measures for a high common level of security of network and information systems across the Union [Directive 2016/1148]. Inter alia, it creates a Cooperation Group in order to support and facilitate strategic cooperation and the exchange of information among Member States and to develop trust and confidence amongst them and it creates a computer security incident response teams network (‘CSIRTs network’) in order to contribute to the development of trust and confidence between Member States and to promote swift and effective operational cooperation.

    The EU has promoted the coordinated introduction of public pan-European cellular digital land-based mobile communication networks and services (mobile telephones, messaging, wireless Internet access, multimedia applications) by harmonising frequencies and launching the standards GSM (Global System for Mobile Communications) and UMTS (Universal Mobile Telecommunications System) [Decision 87/232]. The pan-European land-based public radio paging service (ERMES) enables pan-European public radio paging services, including assistance for people with disabilities [Directive 2005/82 and Decision 2013/752]. An EU procedure for the common selection of operators of mobile satellite systems that use the 2 GHz frequency band facilitates the development of a competitive internal market for mobile satellite services (MSS) across the Union [Decision 626/2008].

    A policy and legal framework decision ensures the coordination of policy approaches and, where appropriate, harmonised conditions with regard to the availability and efficient use of the radio spectrum necessary for the establishment and functioning of the internal market in several sectors [Decision 676/2002 and Decision 2007/131, last amended by Decision 2014/702]. The frequency spectrum serves a wide range of activities in sectors such as telecommunications, broadcasting, transport, research and public services. The range is so wide that congestion is almost inevitable, since the demand for frequencies exceeds the supply. The "radio spectrum" framework decision concerns the use of electromagnetic waves propagated in space without artificial guide in certain frequencies, taking into consideration inter alia economic, safety, health, public interest, freedom of expression, cultural, scientific, social and technical aspects of European policies as well as the various interests of radio spectrum user communities. Activities pursued under this Decision take due account of the work of international organisations related to radio spectrum management, e.g. the International Telecommunication Union (ITU) and the European Conference of Postal and Telecommunications Administrations (CEPT). As mandated [Decision 710/97], the CEPT produced a frequency plan and a channel arrangement allowing six types of preferred applications to share the band in order to meet several European policy needs. A multiannual radio spectrum policy programme aims at the strategic planning and harmonisation of the use of spectrum [Decision 243/2012 and implementing Decision 2013/195].

    The Body of European Regulators for Electronic Communications (BEREC) promotes cooperation between national regulatory authorities (NRAs) aiming to ensure a consistent application of the EU regulatory framework for electronic communications [Regulation 1211/2009]. Α programme on interoperability solutions for European public administrations (the ISA programme) supports cooperation between European public administrations by facilitating the efficient and effective electronic cross-border and cross-sectoral interaction between such administrations, including bodies performing public functions on their behalf, enabling the delivery of electronic public services supporting the implementation of common policies and activities [Decision 922/2009, see also section 5.1.2].

    The Commission has clarified the assessment criteria for national schemes for the costing and financing of universal service [COM/96/608 and COM/98/494]. It has also issued recommendations on interconnection charges [Recommendation 98/195 and Recommendation 98/511], on accounting separation and on cost accounting [Recommendation 98/322]. Incumbent telephone operators, who own cable TV networks, might have no incentive to upgrade them to be able to supply telecommunications services which might compete with those offered by their telecommunications networks. In order to reduce this conflict of interest, a Commission Directive requires a legal separation of the two networks. Telecommunications operators are, thus, required to hive their cable television operations off in a structurally separate company [Directive 1999/64 and Directive 2002/77].

    The protection of privacy directive translates the principles set out in Directive 95/46 [95/46, replaced by Regulation 2016/679, see section 9.2] into specific rules for the telecommunications sector [Directive 2002/58]. In fact, publicly available electronic communications services over the Internet open new possibilities for users but also new risks for their personal data and privacy, in particular with regard to the increasing capacity for automated storage and processing of data relating to subscribers and users. Therefore, the Directive on privacy and electronic communications harmonises the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the European Union. However, another Directive harmonises Member States' provisions concerning the obligations of the providers of publicly available electronic communications services or of public communications networks with respect to the retention of certain data which are generated or processed by them, in order to ensure that the data are available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law [Directive 2006/24].

    Technological development in telecommunications - third axis of the European policy in this sector - is pursued by research in advanced communication technologies and services. A key action of the fifth R & D framework programme (1998-2002) [Decision 182/1999] aimed at promoting excellence in the technologies and networks, including broadband ones, which are crucial to the information society, at speeding up their introduction and broadening their field of application.

    The fourth axis of European telecommunications policy turns round trans-European telecommunications networks [see section 6.8]. A Regulation lays down guidelines for the timely deployment and interoperability of projects of common interest in the field of trans-European networks in the area of telecommunications infrastructure [Regulation 283/2014]. In particular, this Regulation provides for: (a) the objectives for and operational priorities of projects of common interest; (b) the identification of projects of common interest; (c) the criteria according to which actions contributing to projects of common interest shall be eligible for Union financial assistance in accordance with the Connecting Europe Facility (CEF) [Regulation 1316/2013, last amended by Regulation 2016/1649] in their development, implementation, deployment, interconnection, and interoperability; and (d) priorities for funding projects of common interest. In general, the trans-European telecommunications networks aim at optimising the use of EU instruments and financial resources, facilitating the transition to the information society, making European firms more competitive and improving economic and social cohesion [Decision 1336/97, see section 12.1.2]. Integrated services digital networks (ISDN) already offer a wide range of services, designed mainly for enterprises: videosound, videoconference, computerised exchange of data, texts and images, bank transactions at a distance.

    A Directive aims to facilitate and incentivise the roll-out of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure and by enabling a more efficient deployment of new physical infrastructure so that such networks can be rolled out at lower cost [Directive 2014/61]. It establishes minimum requirements relating to civil works and physical infrastructure, with a view to approximating certain aspects of the laws, regulations and administrative provisions of the Member States in those areas.

    Telematics applications play a central role in the development of trans-European networks. Therefore, the EU has adopted a series of guidelines, actions and measures in order to create and operate a telematic network for the electronic interchange of data between administrations (IDA), particularly those needed for the operation of the internal market and the implementation of common policies [Decisions 1719/1999 and 1720/1999, last amended by Regulation 885/2004, see section 6.8]. Telematics applications also promote: the interconnection of networks in universities and national research institutes; the interconnection of library services, notably those of national libraries; networks for cooperation between local authorities in tele-working and tele-services; cooperation among staff specialising in public health and tele-medicine; the use of telematics tools in the road transport sector [Council Resolution]; and the operation of satellite navigation services [COM/94/248].

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