European Commission Slaps Down French President

by Ulrika Lomas, LawAndTax-News.com, Brussels

09 November 2008

A surprise Telecoms Package proposal issued on Friday by the European Commission flies in the face of French plans for an Internet 'police force' which would have the power to cut off users' access to the Internet without a court order if for instance they persistently violate copyright by downloading pirated materials.

In November 2007, the Commission made proposals for the reform of the EU Telecoms rules, designed to create a Single EU Telecoms Market with improved rights for consumers and businesses, more competition and investment to boost the take-up of cross-border services and wireless high-speed broadband for all.

The Commission has issued the revised Telecoms Package after the first reading of the Package in the European Parliament in September gave rise to a number of amendments, including one which required judicial authority before end-users could be cut off.

Amendment 138 adopted by Parliament in its plenary vote on 24 September provided that "no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent."

President Sarkozy then specifically requested the President of the European Commission (EC), José Manuel Barroso to make sure that Amendment 138 was scuttled.

Something of a scandal ensued, and Martin Selmayr, the EC's spokesman for information society and media issued a statement pointing out the necessity to adhere to democratic decision-making processes for the adoption of the Telecoms Package.

"The European Commission respects this democratic decision of the European Parliament. In our opinion this amendment is an important re-affirmation of the basic principles of the rule of law in the EU, in particular the fundamental rights of its citizens. It is important to create a healthy balance between the right to privacy, the right to freedom of information and the rights of others," he said.

The new text presented by the Commission will be discussed in the Council of Telecoms Ministers on 27 November. The new regulatory framework is expected to become law in all 27 EU Member States by 2010.

Said Viviane Reding, EU Telecoms Commissioner: "The European Parliament and Council agree with the Commission on the need to strengthen the EU single telecoms market. We now need to move beyond this consensus on the objectives and reach agreement also on the concrete legislative texts. With the text proposals published by the Commission today, we intend to facilitate the work of the European lawmakers. We have focussed on what is important and have left out what is not essential at this moment in time. I hope this will help the French Presidency to make substantial progress on the EU Telecoms Reform in view of the next Council meeting on 27 November."

The Commission's modified proposal on the EU Telecoms Reform covers the following main points:

• The European Telecoms Authority proposed by the Commission will be substantially smaller in size and competences than initially envisaged. Following the wishes expressed by Parliament and Council, it will be a lean and efficient office that will focus on telecoms regulation and have no competences with regard to spectrum or network security. In contrast to the initial Commission proposal, the European Network and Information Security Agency (ENISA) will not be merged with the new office, but continue to exist separately, as it had been requested by Parliament and Council.
• The Commission also accepted the Parliament's proposal that 50% of the staff of the new office can be seconded by national regulators. Including such seconded staff, the new office should employ no more than 20 experts, according to the Commission’s proposal: 10 experts recruited by the new office itself, and 10 seconded from national regulators.
• The Commission reaffirmed its proposals of 13 November 2007 to entrench the personal and financial independence of national telecoms regulators in the reformed EU Telecoms rules, a proposal that had been endorsed already by the European Parliament.
• The modified proposal reaffirms the power of national regulators to impose, where required to overcome persistent competition bottlenecks, the remedy of functional separation. This remedy would require a dominant operator to separate its network infrastructure from its service branch (without changing the ownership structure) to improve competition in the market. This remedy can only be imposed by a national regulator with the approval of the Commission which, as "guardian of the Treaty", needs to ensure that it is used in a way consistent with the principles of the EU's telecoms rules.
• With regard to radio spectrum policy, the strategic coordination of radio spectrum policy will be strengthened at political level through a process whereby the Commission submits a multi-annual EU radio spectrum policy programme to be jointly adopted by Parliament and Council. The promotion of cultural and media policy objectives has also been strengthened in line with the European Parliament's amendments, even though the Commission has made sure in its modified proposal that this does not unduly restrict the increased flexibility in the use of spectrum and does not call into question the promotion of wireless broadband in rural and other non-metropolitan areas in line with the Commission's "broadband for all" policy.
• More transparency and better information, better access for users with disabilities, consumers' right to change fixed or mobile operator within 1 working day while keeping their number, as well as a more efficient 112 European emergency number, are major consumer benefits proposed by the Commission and supported strongly by the European Parliament.

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