EU Council pushes for ‘minimum harmonisation’ in draft telecom law

EU countries seem to have accepted the regulation format for the telecom legislation on the condition that it respects minimum harmonisation, according to a first iteration of the text seen by EURACTIV.

The Gigabit Infrastructure Act is a legislative proposal to fast-track the deployment of high-capacity networks such as 5G and fibre across the EU. The proposal is meant to replace the Broadband Cost Reduction Directive, initially presented as a regulation but watered down into a directive by member states.

Although some countries like the Netherlands made the case for changing the type of legal instrument again, that option no longer seems to be on the table, according to a first compromise text, dated 4 July and seen by EURACTIV.

The document is the first iteration from the Spanish presidency, which took over the helm of the EU Council of Ministers at the beginning of the month and placed the telecom sector on top of its digital priorities.

The text admits that several EU countries preferred to keep the legal instrument a directive rather than a regulation. Still, the presidency considers this “avoidable, on the condition that member states have enough flexibility.”

The document is set to be discussed on Tuesday (11 July) at the Telecom Working Party, a technical body of the EU Council.

Flexibility

Giving enough flexibility to the national governments means, in concrete terms, that the scope of the regulation was limited to set minimum requirements for member states, which might go further with measures that provide better solutions.

In addition, the provision of guidance on applying the regulation to access existing physical and in-building infrastructure and coordination of civil works from the hands of the European Commission to that of the member states.

Almost all references of notification to the Commission were also deleted across the board, giving EU countries more flexibility in the rules they can apply to data they deem relevant to share via the single information point.

The idea of a single information point has been kept, and data that should flow to it is almost kept as per the initial version of the text.

Conditions for access

The draft telecom law allows network deployers to gain access to existing physical infrastructure from network operators and public sector bodies under certain conditions, which were significantly amended.

In particular, the Council text introduces the elements to be considered for determining the price of access to the contracts and commercial terms agreed between the two parties, the business model of the deployer and existing guidance.

In cases where access is refused, the network operator or public body should provide a detailed explanation within two rather than one month from the request’s receipt.

The legislation also provides for a national body to coordinate such access requests. The new text indicates that this task can be trusted upon an existing body rather than the EU countries having to establish a new one.

Minimum information

Before requesting access, network deployers can request some minimum information on the physical infrastructure via a single information point. The deadline for providing such information was 15 working days, extendable to 15 more in duly justified cases.

The deadline for private operators and public bodies to provide the minimum information via the single information point was moved from 12 to 18 months since the regulation entered into force.

The information provided can be limited to ensure the security of the networks, including that of critical infrastructure.

Definitions

The definitions for key concepts were aligned with those of the European Electronic Communications Code. Certain definitions were made more detailed to include train stations, urban roads and buildings’ rooftops.

Timeline

Representatives of the member states seem to consider the Commission’s proposal’s timeline too tight, as they were generally extended.

For instance, the time for competent authorities to assess the completeness of a permit application was extended from 15 to 30 working days.

However, they kept the “tacit approval” principle that a permit is automatically approved if the competent authority does not object within four months, with the additional specification that the process can be reiterated once only.

The regulation’s entry into application was moved to 18 months since its entry into force, including specific provisions regarding the in-building physical infrastructure and fibre wiring, such as the member states’ adoption of the relevant technical standards.

[Edited by Luca Bertuzzi/Alice Taylor]

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