Wednesday, 21 July 2010

Commission let's Sky Italia participate in Italy's DTT beauty contest

Mediaset suffers a second blow in just two months. The Commission has lifted the restriction imposed on Sky Italia on a previous antitrust settlement and let's Sky Italia free to participate in Italy's DTT beauty contest (see FT, Euractive). However positive this may be for Sky Italia it does not guarantee that it will be assigned with one of the five frequencies and in addition it will be let to launch its broadcasting service after 2015 (if it is assigned with the frequency).

Council concludes Agreement on classified information with Liechtenstein

The Council has concluded the Agreement between the European Union and the Principality of Liechtenstein on security procedures for exchanging classified information.

Commission approves state aid for high speed internet in Estonia

The Commission has approved Estonia's state aid plan setting out the builing of the necessary infrastructure to connect rural areas with the main national optical fibre lines. The approval came as a result of setting the same conditions to all operators and owing to the lack of economic viability for operators to set up such an infrastructure (see the Commission's press release).

This case is important in view of the upcoming Greek FTTH plan. It should be mentioned that from the existing case law and the abovementioned Commission's decision, the lawyers to advise on the Greek plan (see the Ministry of Infrastructure's consulation on the tender for the legal counsel to expire on the 23rd of July, in greek)should probably be really careful when reviewing the conditions under which access will be granted to operators. Also, it seems that a homogenuous plan for the whole of the Greek territory may not pass through and therefore different models ought to be adopted depending on the particularity of each area.

Monday, 19 July 2010

Art. 29 WP findings on data retention

Art. 29 Working Party, in its 76th Meeting which was attended by Commissioner Reding has found that Member States have incorrectly implemented the Data Retention Directive (see the press release of the Meeting and the Communication to Commissioner Reding). The data retention period envisaged in each Member State varies from 6 months to 10 years where the Directive provides for a maximum of 24 months. Also, the specific list of data allowed to be retained is not followed and various other data may be retained. The WP therefore, calls for correct implementation of the Data Retention Directive, for more harmonisation, clarification of the concept of "serious crime", reduced period for data retention and strengthening of the national authorities' powers. It mentions lastly, that this incoherence should be taken into account when the Commission decides to propose the amendment or withdrawal of the Data Retention Directive.

Friday, 9 July 2010

Swedish ban on internet gambling permitted

The ban imposed on internet gumbling by the Swedish State is permissible according to the CJEU's ruling in the Sjöberg case as long as the penalties foreseen for the internet gubling operators are not any stricter than those provided for Swedish operators (see also outlaw.com).

SWIFT Agreement adopted

The Parliament accepted the Council's decision on the conclusion of the Agreement. However, it is proposed by some members of the EP recourse to the CJEU, viewing the deal as unconstitutional (see for example GUE/NGL party's press release). In essence, transfer of bulk data, the main reason why the EP rejected the agreement in February, will be allowed under the supervision of Europol which is going to be the authority that the US authorities will submit any request for data transfer and until an appropriate body is being set up. In addition, a group of specialists will have their seat in the US, supervising the process of the data.

Thursday, 8 July 2010

Google as a dominat search engine operator

The European Commission has been investigating from February, Googgle's behaviour with regard to the operation of its search engine (see press release). Almunia, in a lecture before the UCL Jevons Institute (always glad to see UCL's commitment to organise such events...) did not refer to this case individually, but mentioned the potential problems when dominant search engine operators engage in anti-competitive conduct (see press release). It remains to be seen how this case will end-up although it is insinuated in the Press that this case may lead to litigation (see euractiv and the wsj).

Portugal Telecom's golden shares case

The CJEU delivered its judgement by which the Portuguese state's holding of Portugal Telecom's golden shares, restricts the free movement of capital. It ought to be mentioned that several states engage in the same tactic, engulfing public utility companies to deter loss of control (see The European Telecommunications Law Blog), and the Greek state has to some extent endorsed this method in relation to OTE.

Greek Data Protection Authority on the census of the state's public servants

The Greek government issued a ministerial order setting out the conditions and method for the census of the state's public servants, given their excessive number and financial burden on the country's public finances. The order was issued after the IMF-EU MOU became part of the country's internal order. The Greek Data Protection Authority delivered a decision yesterday (see here in greek and laso an rticle of imerisia in greek), prescribing that the Greek state should not include in the electronic system on which the details of the public servants will be gathered, any details not related to the servans' salary, like decree gardes and others. The Authority moreover, demanded that the Greek state uses various methods (encyrption etc.) so that the servants' data will be safely enclosed in the database.

A preliminary examination of the decision, raises some issues. First, decree grades do sometimes relate to the servants' salary. Various servants join committees based on their qualifications. Their participation in the committees is payed (although the Greek government has announced its intention to refrain from paying servants that are part of the committees). And this participation is based on the servants' qualifications. Secondly, the part of the decision providing that the state should use specific methods to deter disclosure of the data, should perhaps had been given through a recommendations as a more suitable instrument if no detailed examination on the state's electronic system and its safeguards is undertaken.

Greek frequency map

The Ministry of infrastructure is purported (source: naftemporiki, in greek) to be instigating a consultation in order to reach to a final version of the country's frequency map as far as radio broadcasting is concerned. This is one of the many steps the Greek State has to take in order to clarify the frequency map that will enable an efficient distibution of the digital dividend bringing new services to the Greek market.

Tuesday, 6 July 2010

France Telecom considers charging bandwith

According to FT, France Telecom, following AT&T's example, may opt for charging smartphone users for making excessive use of their phones to connect to the internet.

Friday, 2 July 2010

The 2009 Annual Report of the Hellenic Authority for Communication Security and Privacy

A few days ago the 2009 Annual Report of the Hellenic Authority for Communication Security and Privacy was uploaded to its website (in greek). In its report, the Authority delivers its criticism in a rather straight forward way, for not enjoying clear competence in various matters, investigatory powers and independence as far as its public financing is concerned. It also provides with suggestions on the upcoming law amending law 3115/2003 that founded the Authority.

Finland - every citizen is vested with the right to a 1Mb broadband connection.

Finland is the first country to make the minimum of a 1Mb broadband connection a legal right (see cnet.news and kathimerini).

And something out of the ordinary...

A seminal case was decided two days ago by the WTO panel. It involved the allegations of the US (supporting its national aircraft manufacturer, Boeing) that the EU and several countries granted illegal subsidies to Airbus. The WTO panel found in fact that these subsidies constitute illegal export subsidies. It remains to be seen whether there is going to be an appeal before the Apellate body. For a synopsis of the judgment and imlications see euractiv (the decision goes on for 1.000 pages and if anyone has the courage to read it, click here).

Ruling on Polska Telefonia Cyfrowa

Number portability normally entails two functions. First, the charge of an "interconnection fee" by the donor to the recipient company. Secondly, the passing on to the consumer of the whole or part of the aforementioned fee by the recipient. Of course it may well be that the donor ccompany may impose on the consumer with a fee (as it is the case here) in addition or not to that imposed by the recipient.

According to AG Bot, the Universal Service Directive Art. dictates 'that the national regulatory authorities shall take account, in the manner they consider most appropriate, of the indicator obtained from the costs incurred by telecommunications operators in implementing number portability when they assess whether the direct charge which may be levied in that regard on the subscriber acts as a disincentive' (para 73-conclusion of the Opinion). The AG suggested that cost-orientation in such cases is prescribed by the framework (presenting as the basis of which mainly the ONP directives, see contentandcarrier) and that measuring disincentives by consumer polls alone is not a safe and objective tool that satisfies the USD's requirements.

On the other hand, the CJEU differentiated its approach on the issue to a certain extent by stating: the answer to the question referred is that Article 30(2) of the Universal Service Directive is to be interpreted as obliging the NRA to take account of the costs incurred by mobile telephone network operators in implementing the number portability service when it assesses whether the direct charge to subscribers for the use of that service is a disincentive. However, it retains the power to fix the maximum amount of that charge levied by operators at a level below the costs incurred by them, when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility. Therefore, the Court did not stopped at the AG's suggestion but went a step further, stating that it may well be that the subscriber fee may be set lower than the "interconnection" cost to lessen the disincentives that a subscriber faces when thinking of changing provider.

Too my personal view, the structure of the AG's perception of the number portability pricing mecchanism and that of the CJEU's is different. Whereas the AG adoptes number portability as a two distinct steps function as mentioned above, the CJEU has a more holistic view on the issue considering the two functions as intrinsicly connected to each other. The AG seems to introduce cost-orientation which is explicitly provided from the directive for the first leg of the funtion, that of "interconnection" to the leg of the subscriber's fee whereas the Court seems to perceive that both the "interconnection" and the subscriber's fee require cost-orientation and lessening of the disincentives to use number portability.


The obvious difference between these two approaches is the element introduced by the Court according to which an NRA may set the subscriber fee lower than the costs incurred.

Now let's assume that there are two operators. The first one charges 1 euro per min., the donor, and the second one (which has a minor market share for antitrust purposes here) 0,3 euro per min, the recipient. The cost of "interconnection" is at 10 euro and indeed the recipient pays the donor that amount but then the recipient sets the subscription fee at 30 euro but still its services are that cheap that all consumers would rather pay the subscription fee. How would an NRA treat such a case?According to the AG and the CJEU this behaviour is not in line with the USD. Do we have in such case market foreclosure? NO. Is there a disincentive for the consumer not to port his number?NO again. This example i think depicts that the only way to interpret Art. 32 of the USD is by proceeding into a purposive approach. What did the legislator wanted to prevent? First, market foreclosure so that effective competition takes place. And thus, the "interconnetion" tariff should be cost-orientated. Second, consumers so that they are not dissuaded from porting their number to other competitive providers. And thus the criterion of the non existence of disincentives should be satisfied. In what way does the Court's approach using the disincentives criterion as an incidental and not the primary benchmark provides any useful guidance? The only answer to this could be that in that way there might be some additional pressure on NRAs to investigate potential disincentives using more "acceptable" methods or they will face overturn of their decisions by their national courts once there is not such a careful examination and there is additionally deviation from costs.

M6-TF1 case. Commission was right, France Televisions keep the money

The Ceneral Court ruled (decision in French and the press release) that the Commission rightly considered the state aid granted to France Televisions by the French state as compatible with EU law. The French state was perceived to be financing part of France Televisions' public service and not its commercial activities (the advertisement part of which is in course to be abolished).