The European Electronic Communications Code – An Update
21 December 2020
The deadline for the transposition of Directive (EU) 2018/1972 establishing the European Electronic Communications Code (the “EECC”) into Irish law is today, 21 December 2020. However, the Department of Communications confirmed last week that it could not meet this deadline, leaving the State open to infringement proceedings and penalties. The Department has however, shared certain text of the draft implementing legislation relating to end-user rights, and this may be instructive to providers of electronic communications services.
The EECC consolidates the existing EU telecoms regulatory framework and revises it in light of technological and market developments. In addition to the previous three primary objectives of promoting competition, the internal market and end-user interests, the EECC now introduces a new objective of increasing connectivity.
Some of the key changes introduced by the EECC are as follows:
Regulation of ‘Number-Independent Interpersonal Communications Services’
The EECC introduces a light-touch regulatory regime for interpersonal communications services which do not connect with publicly assigned numbering resources or do not enable communication with a number. Such services include for example, WhatsApp, Facebook Messenger, Gmail and Apple FaceTime. Companies providing these services will not be required to seek general authorisation from national regulatory authorities, but they may be subject to:
- information requests from national regulatory authorities;
- requirements to ensure the security of their services and to report security breaches;
- interoperability requirements in justified cases, where end-to-end connectivity between end-users is endangered due to a lack of interoperability between interpersonal communications services; and
- requirements relating to end-user rights (unless the company is a microenterprise, in which case only general obligations not to discriminate and to safeguard fundamental rights apply).
Personal Data as “Remuneration”
In order to fall within the scope of the EECC, electronic communications services need to be “normally provided for remuneration”. The recitals to the EECC state that “remuneration” should include situations where:
- the provider of a service requests and the end-user knowingly provides personal data or other data directly or indirectly to the provider;
- the end-user allows access to information without actively supplying it, such as personal data, including the IP address, or other automatically generated information, such as information collected and transmitted by a cookie; and
- the end-user is exposed to advertisements as a condition for gaining access to the service, or situations in which the service provider monetises personal data it has collected.
The EECC requires maximum harmonisation of end-user rights at EU-level, preventing member states from applying measures which are either more or less restrictive than those laid down in the EECC.
Before a consumer is bound by an electronic communications service contract, they are entitled to two sets of information, namely: (i) a standardised and easily readable ‘summary’ document, which summarises the key elements of the contract (a “Contract Summary”); and (ii) the minimum set of pre-contractual information in a clear and comprehensible manner on a durable medium (the “Pre-Contractual Information”). There is an exception to this requirement for contracts in respect of transmission services for machine-to-machine services. End-users who are microenterprises, small enterprises and not-for-profit organisations, also have a right to receive the Contract Summary and the Pre-Contractual Information unless they have explicitly agreed to waive those rights.
The EECC also sets out requirements relating to the accessibility of contractual information, requires national regulatory authorities to make available to end-users an independent price and quality comparison tool and provides that national regulatory authorities may require electronic communication services providers to publish information on quality of service. The EECC provides that conditions and procedures for contract termination must not act as a disincentive to switching and that minimum contract periods must not be longer than 24 months. It prescribes various conditions relating to termination and switching and provides that the obligations in the EECC relating to the Contract Summary, transparency, contract duration, termination and switching apply to all elements of a bundled contract.
The above are just some of the key changes that will be brought about by the EECC.
The extension of the regulatory framework to number-independent interpersonal communications services is a significant development that is reflective of the fact that end-users are increasingly substituting ‘traditional’ communications services with number-based interpersonal communications services and that such services should therefore be regulated in the public interest. The enhanced end-user rights under the EECC (including the right to receive the Contract Summary and the Pre-Contractual Information) is reflective of the need identified to allow the end-user to make a well-informed choice.
Given the delay in its implementation in Ireland, there will be uncertainty in the interim as regards how providers of electronic communications networks and services should adapt their policies and procedures to account for the provisions of the EECC. When the EECC is ultimately implemented into Irish law they will need to again adapt to account for any requirements brought about by the implementing legislation.