Wednesday, 27 March 2013

Commission issues Justice Scoreboard

"The European Commission has today unveiled a new comparative tool to promote effective justice systems in the European Union and thereby reinforce economic growth. The ‘European Justice Scoreboard’ will provide objective, reliable and comparable data on the functioning of the justice systems in the EU’s 27 Member States. Improving the quality, independence and efficiency of judicial systems already forms part of the EU’s economic policy coordination process under the European Semester, which is aimed at laying the foundations for a return to growth and job creation.


Effective justice systems are crucial for growth: trusting that the rule of law is fully upheld directly translates into the confidence to invest in the economy. And as national courts play an essential role in upholding EU law, the effectiveness of national justice systems is also fundamental to the effective implementation of EU law. Shortcomings in national justice systems are therefore not only a problem for the Member State in question. They can also affect the functioning of the EU's Single Market and the implementation of EU instruments based on mutual recognition and cooperation, as well as undermining the protection that citizens and businesses can expect in enforcing their EU law rights.

The 2013 Justice Scoreboard focuses on the parameters of a justice system which contribute to the improvement of the business and investment climate. In particular, it examines efficiency indicators for civil and commercial cases, which are relevant for resolving commercial disputes. It also covers administrative courts, as they play an important role in a business environment, for example, with regard to delivering licences or for disputes with tax authorities or with national regulatory bodies.

The key findings of the first scoreboard include:

  • The length of judicial proceedings varies considerably between EU Member States, with one third of Member States having a length of proceedings at least two times greater than the majority of Member States. Problems can be compounded where low rates of resolving cases lead to an increasing number of pending cases.
  • Monitoring and evaluation help to improve the speed and quality of justice. While most Member States have a comprehensive monitoring system, several lag behind.
  • Alternative methods for resolving disputes, such as mediation reduce the workload of courts. These should be used more widely.
  • Perceptions of the independence of national justice systems also vary widely. Even though several Member States are among the top 10 worldwide leaders in terms of the perception of judicial independence, there is a rather low level of perception of judicial independence by business end-users of the justice system in certain Member States" (see the press release, related page and the document).

Commission releases its proposed draft Trade Marks Regulation and Directive

"The Commission adopted proposals for a revision of the Regulation on the Community trade mark and for a recast of the Directive approximating the laws of the Member States relating to trade marks. The package of initiatives aims at upgrading, streamlining and modernising the current legislation in order to make the trade mark registration systems all over the Union more accessible and efficient for businesses in terms of lower costs and complexity, increased speed, greater predictability and legal security" (see related page with all draft documents).

Commission consults on simplification of the Merger Regulation

"The European Commission invites the public to comment on a proposal to simplify certain procedures for notifying mergers under the EU Merger Regulation. The proposal aims to make EU merger control even more business-friendly by cutting red tape and streamlining procedures. The proposed changes could allow up to 70% of all notified mergers to qualify for review under the Commission's simplified procedure, i.e. about 10% more than today. This could result in savings for the merging companies concerned, cutting lawyers' fees by up to one half and reducing preparatory in-house work. In addition, the Commission proposes to reduce the net amount of information required to notify all mergers, which will significantly lessen the administrative burden. This initiative is part of the Commission’s overall effort to make administrative procedures less burdensome for business, thereby stimulating growth and making Europe more competitive.

In particular, the Commission proposes to update the Notice on a simplified procedure for treatment of certain mergers. Under this notice, companies can use a shorter notification form for certain categories of mergers that are generally unlikely to raise competition problems. If the combined market shares of the two merging companies are below a certain threshold, the merger is treated under the simplified procedure. The Commission can then clear such cases without an extensive market investigation.

The Commission now proposes to expand the scope of the simplified procedure, in light of experience and the Commission's substantive merger guidelines. Expanding the simplified procedure would reduce the burden for business further. In particular, the market share threshold for treatment under the simplified procedure for mergers between firms competing in the same market should be raised from 15% to 20%. For mergers between firms active in upstream and downstream markets - such as between a producer of car parts and a car manufacturer - the threshold should rise from 25% to 30%. The Commission also wants to make it possible to treat a case as simplified where the combined market share of two firms active in the same market is above the 20% threshold but the increase in market share resulting from the merger is very small.

In addition, the Commission proposes to amend the Regulation implementing the Merger Regulation in order to update and streamline the merger notification forms. In particular, in cases that do not fall under the simplified procedure, merging firms would only have to submit detailed information for those markets where their market share actually exceeds the threshold for applying the simplified procedure" (see the press release and the related page with all draft documents).

Art. 29 WP on data transfer systems between Europe and APEC

"The WP29 recently concluded a study of the CBPR system in order to identify the similarities and differences with the BCR system. Using this initial comparison as a starting point, the WP29 and participating APEC Economies are cooperating to develop practical tools, including a common referential, for those multinational companies that have data collection and/or processing - related activities in both the European Union and APEC region.

On 31 January 2013, the so called BCR/CBPR Committee met for the first time to discuss this topic. Participants from the EU included representatives from the CNIL (France), the German Federal Commissioner for Data Protection and Freedom of Information,the European Data Protection Supervisor and the European Commission.

From APEC 10 member Economies participated including Canada, Chinese Taipei, Japan, Korea, Malaysia, New Zealand, the Philippines, Singapore, Thailand, and the United States. It is anticipated that a roadmap will be adopted in the upcoming months by the WP29 and the APEC in order to continue their cooperation and to materialize such practical tools for use by companies doing business in Europe and the Asia - Pacific region" (see Art. 29 WP's press release).

Tuesday, 26 March 2013

Commission concludes consultation and proposes draft Regulation to cut broadband installation costs

"The European Commission today proposed new rules to cut by 30% the cost of rolling out high-speed Internet. Civil engineering, such as the digging up of roads to lay down fibre, accounts for up to 80% of the cost of deploying high-speed networks. Today's proposal may save companies €40 to 60 billion.

High-speed broadband is the backbone of the telecoms and wider Digital Single Market, the Commission is attempting to build. Its rollout is currently slowed down by a patchwork of rules and administrative practices at national and sub-national levels. "In most places, today's rules hurt Europe's competitiveness," said European Commission Vice President Neelie Kroes.

Today's draft regulation builds on best practices in place today in Germany, Spain, France, Italy, Lithuania, The Netherlands, Poland, Portugal, Slovenia, Sweden and United Kingdom, but leaves organisational issues very much to the discretion of Member States.


The Rules would become directly applicable across the EU after agreement by the European Parliament and Council.

The Commission wants to tackle four main problem areas:
  • Ensuring that new or renovated buildings are high-speed-broadband-ready.
  • Opening access to infrastructure on fair and reasonable terms and conditions, including price, to existing ducts, conduits, manholes, cabinets, poles, masts, antennae installations, towers and other supporting constructions.
  • Ending insufficient coordination of civil works, by enabling any network operator to negotiate agreements with other infrastructure providers
  • Simplifying complex and time-consuming permit granting, especially for masts and antennas, by granting or refusing permits within six months by default and allowing requests to be made through a single point of contact.
There is currently little transparency on existing physical infrastructure suitable for broadband rollout and no appropriate commonly-used rules when deploying broadband across the EU. At the moment, there is no market-place for physical infrastructure and the potential to use infrastructure belonging to other utilities. Regulations in certain Member States even discourage utility companies from cooperating with telecom operators" (see Commission's press release and memo).

Monday, 25 March 2013

AGCOM issues FTRs in TDM technology for 2012

The Italian NRA issued the fixed termination rate of 0,361€ (in italian) while an art. 7a respective case is pending before the Commission and BEREC (see here).

Commission releases commissioned study on EU online Trustmarks

"This study realized an analysis of the current state-of-play on trustmarks in Europe and gave an insight into the international situation. In the same time, it stimulated the stakeholders' engagement via a survey, workshops, desk research, helping in understanding how trustmarks respond to the question of confidence in e-commerce, favouring cross-border e-commerce. Cross-border eCommerce is one of the economic activities which policy makers regard as very important in generating a EU-wide economic growth and creating new job opportunities. The Digital Agenda for Europe clearly pursues the creation of an online internal market, putting in place policies fostering cross-border eCommerce in the EU. One of the key factors of eCommerce, be it cross-border or at national level, is trust between the parties: the purchaser and the merchant. Trustmarks can play a role in establishing trust relations: a trustmark is a sign displayed on an eCommerce website, it has the purpose to provide an independent guarantee of the trustworthiness and reliability of the webshop. Trustmarks are especially useful for smaller webshops that are not (yet) a strong online brand of their own. Four policy options are reviewed by the study and the final report addresses the pros and cons of these options. The Commission is currently considering the results of the study. It is assessing, more specifically, the possibility of taking the trustmark topic into a multi-stakeholders platform. We are looking at the effects of other similar initiatives like the recent Multi-stakeholder Dialogue on Comparison Tools (websites), conducted by DG SANCO. You will find below the study itself – with its 2 annexes" (see related page).

RSPG consults on draft Opinion on Strategic Challenges facing Europe in addressing the Growing Spectrum Demand for Wireless Broadband

The Radio Spectrum Policy Group consults on a draft Opinion on Strategic Challenges facing Europe in addressing the Growing Spectrum Demand for Wireless Broadband (see related page).

Sunday, 24 March 2013

Polish competition watchdog initiates proceedings against Orange, Plus and T-Mobile

"The proceedings regarding the practice of mobile telephony operators were instituted upon reporting irregularities by the President of the Office of Electronic Communications and the company P4 (Play network operator).The information concerned applying varied rates for connections to this network by three largest operators of mobile telephony: Polkomtel (the owner of, among others, Plus), Polska Telefonia Cyfrowa (including T-Mobile and Heyah) as well as Polska Telefonia Komórkowa Centertel (including Orange)" (see press release).

Spanish NCA issues report on draft new Telecoms Law

CNC issued its report on the draft new Telecoms Law (see press release).

Commission consults on revision of De Minimis State Aid Regulation

The European Commission launched its consultation on the revision of the De Minimis Regulation (see related page).

AGCOM consults on Regulation for provision of electronic communication services from distance

The Italian NRA consults on the revision of its Regulation for the provision of electronic communication services from distance (see related page, in italian).

AGCOM concludes SMS termination review

The Italian NRA concluded its SMS termination review (see related page, in italian).

EETT launches broadband quality map

The Greek NRA launched a digital map tool, inviting consumers to measure their broadband speeds and thus compile a database of broadband speeds across the country (see related page, in greek, and the regulator's press release, in greek).

EETT consults on the incumbent's wholesale leased lines Reference Offer

The Greek NRA launched its consultation on OTE's draft wholesale leased lines Reference Offer (see press release, in greek).

Greek NRA issues new Authorisation Regulation

EETT has issued its new Authorisation Regulation, enhancing consumers' rights and protection (see press release, in greek).

AG delivers Opinion in Case C-657/11 - use of a domain name and metatags could qualify as advertising

AG Mengozzi delivered his Opinion (in french) the Belgian Electronic Sorting Technology case, the conclusion's of which read as follows (translation is mine):

"The registration of a domain name does not constitute advertising in the sense of article 2 of Directive 84/450/EEC ... and article 2 of Directive 2006/114/EC ....

The use of a domain name and metatags in a website's metadata could constitute advertising in the sense of the said Directives. It is to the referring court however to ascertain if in the present case, the conditions set by the said Directives qualifying for the term advertising, are met."

CJEU decides in Belgacom and others case

The Court delivered its jugment in Case C-375/11, the operative part of which reads as follows:

"1.      Articles 12 and 13 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), must be interpreted as not precluding a Member State from charging mobile telephone operators holding rights of use for radio frequencies a one-off fee payable for both a new acquisition of rights of use for radio frequencies and for renewals of those rights, in addition to an annual fee for making the frequencies available, intended to encourage optimal use of the resources while at the same time also covering the cost of managing the authorisation, provided that those fees genuinely are intended to ensure optimal use of the resource made up of those radio frequencies and are objectively justified, transparent, non‑discriminatory and proportionate in relation to their intended purpose and take into account the objectives in Article 8 of Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), which it is for the national court to assess.
Subject to that same condition, the fixing of the amount of a one-off fee for rights of use for radio frequencies by reference either to the amount of the former one-off licence fee calculated on the basis of the number of frequencies and months to which the rights of use relate, or to the amounts raised through auction, may be an appropriate method for determining the value of the radio frequencies.
2.      Article 14(1) of Directive 2002/20 must be interpreted as not precluding a Member State from charging a mobile telephone operator a fee such as that at issue in the main proceedings, provided that that amendment is objectively justified and effected in a proportionate manner and notice has been given to all interested parties in order to enable them to express their views, which it is for the national court to assess in the light of the circumstances at issue in the main proceedings.
3.      Article 14(2) of Directive 2002/20 must be interpreted as not precluding a Member State from charging a mobile telephone operator a fee such as that at issue in the main proceedings."

AG delivers Opinion in Telefónica v Commission case

AG Kokott delivered her Opinion (in french) in Case C-274/12P involving the doctrine of standing under Art. 263 TFEU, concluding that the Court could not hear Telefonica's case questioning the Commission's decision finding state aid in a Spanish tax law provision, since the Commission's decision required further implementing measures.

Council of the European Union adopts FRA’s multi-annual framework for 2013-2017

"The Council of the European Union adopted FRA’s multi-annual framework for 2013-2017 on 11 March. The Council decision determines the nine themes on which the agency will work over the next five years" including that of "information society and, in particular, respect for private life and protection of personal data" (see FRA's press release and the Council's Decision).

EP's LIBE Committee calls for annual monitoring of Member States' media laws

"Investigative journalism should be supported in the EU and media independence protected from political and economic pressures, says the Civil Liberties Committee in a resolution on media freedom voted on Thursday. MEPs want annual EU-wide monitoring of media laws and measures, both to protect media freedom and to help prevent excessive media concentration" (see press release).

European Commission consults on media freedom & pluralism and audiovisual regulators' independence

"The European Commission launches today two public consultations, open until 14th June 2013. The consultations formalise a debate started by recommendations made in January 2013 by an independent High Level Group (HLG) on Media Freedom and Pluralism convened by the Commission.

The first and wider consultation invites comments on issues such as the scope of the EU's competence to act in order to protect media freedom, the respective roles of public authorities and self-regulation or protection of journalistic sources in Europe. The consultation's findings will allow the Commission to identify if broad support exists for European or national action in areas covered by the EU Treaties.

The second consultation is specifically limited to the High Level Group's recommendation that audiovisual regulatory bodies should be independent. Audiovisual media are already subject to EU regulation. The consultation asks whether independence could be better ensured if Article 30 of the Audiovisual and Media Services (AVMS) Directive were revised" (see press release).

UK's Data Protection Authority issues further analysis on Data Protection reform package

ICO issued a second analysis paper on the Data Protection reform package.

EDPS issues and presents before LIBE Committee further comments on Data Protection reform package

"Last week, the EDPS sent additional comments on the reform of the EU rules governing data protection to the European Parliament, the Commission and the Council in view of today's debate on the subject in the Civil Liberties, Justice and Home Affairs Committee (LIBE)" (see EDPS' press release and Comments).

EP's JURI Committee adopts Opinion on Data Protection reform package

"The "right to be forgotten", explicit consent before a person's data is collected and a ban on profiling on the basis of ethnic, religious or sexual orientation criteria are among the main demands for data protection reform made by the legal affairs committee in a non-binding opinion adopted on Tuesday" (see European Parliament's press release as well as the Commission's press release welcoming the opinion and anticipating for the LIBE Committee's Opinion).

Tuesday, 19 March 2013

CJEU invalidates GC and finds possible state aid in France Télécom case

The CJEU invalidate the General Court's decision and found that there was possible state aid involved in Joined Cases C399/10P and 401/10P.

The Commission in its statement mentions:

"The European Commission welcomes a judgment by the Court of Justice of the European Union in joined cases C-399/10 P and C-401/10 P, regarding a shareholder declaration and loan carried out by the French State in favour of the national telecommunication incumbent France Télécom. In particular, the Court of Justice invalidated the General Court's (GC) findings of May 2010 (case T-425/04) that the public declaration of support for France Télécom by the Minister for economic affairs and the subsequent shareholder loan by the French State did not entail a transfer of State resources – and thus did not constitute state aid. The Court of Justice found that the General Court wrongly required a close connection between the advantage and the commitment of State resources. Although this loan was not taken up by France Télécom, it conferred an advantage granted through State resources that could potentially have burdened the State budget. The Commission was therefore right to qualify that advantage as state aid in favour of France Télécom. The judgment clarifies the position with regard to EU state aid rules of a State that intervenes in favour of a company of which it is also the owner. The case has been sent back to the General Court, which will have to rule on the other aspects of the case that it had not dealt with when it annulled the Commission decision."

Moldova's NRA approves technical and commercial conditions for number portability implementation

"With the launch of number portability, all mobile and fixed users will be able to benefit from portability services within five business days from the date they send a request to the provider in whose network they wish to have their numbers ported. This is a provision of the Technical and Commercial Conditions for number portability implementation in the Republic of Moldova..." (see press release).

BIPT issues analysis on universal service aspects of the electronic communications market

The Belgian NRA issued its analysis on "universal service aspects of the electronic communications market (payphones, enquiry service and directories) with a view to modernise their provision" (see related page).

ARCEP reviews French NCA's Opinion on network sharing and roaming

"In response to a government request, the French Competition Authority (Autorité de la concurrence) today made public its decision on the terms governing mobile network sharing and roaming.

Having been invited to share its observations, ARCEP adopted an opinion" (in french) "on the matter on 20 December 2012, which it sent to the Competition Authority at the time and is now making public.

The Competition Authority reiterates its belief that infrastructure-based competition is vital to ensuring a healthy state of competition and strong capital investments. Roaming and network sharing are not incompatible with this goal of a competitive marketplace: they can even help stimulate competition and satisfy other regulatory objectives such as balanced regional development.

It is up to public authorities to guarantee a balance between infrastructure-based competition and infrastructure sharing, to achieve the various regulatory objectives set by European and national law, and particularly the goal of ensuring fair and balanced competition between mobile network operators, which is beneficial to consumers. To this end, roaming and network sharing schemes have been in place in France and abroad for a number of years, in some cases.

As to its analysis of the competitive risks associated with network sharing agreements, the Competition Authority recommends such agreements be examined in light of three criteria: the degree of competition between the two parties, their joint market power and the features of the areas covered by the agreement. The Authority also offers differing recommendations for high-density and sparsely populated areas. The Competition Authority thus echoes the case-by-case approach that ARCEP recommended in its opinion. It is therefore up to the Competition Authority or the magistrate to assess whether an agreement is likely to be detrimental to competition, when issuing authorisations that fall under their purview. The Competition Authority’s analysis also confirms the relevance – both from a legal standpoint and in terms of timeliness – of the network sharing regulations that ARCEP introduced back in 2011 when allocating 4G spectrum in the 800 MHz band.

On the matter of roaming, the Competition Authority also shares ARCEP’s belief that any assessment of a roaming agreement’s impact on competition cannot be theoretical, but rather based on an examination of each agreement’s economic and technical terms and conditions. As to the roaming privileges accorded to Free Mobile, the Competition Authority recommends that – as stated in its opinion of 14 June 2010 – national 3G roaming be switched off in 2016 or 2018, while not excluding the use of local roaming. It also suggests scaling back the 2G roaming enjoyed by Free Mobile customers, either by setting a time limit or by confining it only to customers with a 2G handset. 

Lastly, on the issue of 4G roaming, the Authority voices its support for the terms that ARCEP set in its call for applications for 800 MHz spectrum licences: in the priority rollout area, Free will be given roaming rights to the SFR network – SFR having been awarded two frequency blocks during the 800 MHz band licence awards. The Authority has, however, expressed reservations about the possibility of extending these roaming rights to higher density areas, which is not included in the terms set by ARCEP.

These recommendations, which match ARCEP’s position, are based largely on an approach rooted in competition law which must, when applicable, be enforced by the competent authorities. Meanwhile, ARCEP is also keen to reiterate that, as promised in early 2012, it will continue to keep a close watch on Free Mobile’s investments and coverage levels – particularly as part of the quarterly statistical survey introduced by ARCEP Decision 2013-0064 – to ensure that the operator’s rollout schedule complies with the obligations contained in its licence" (see ARCEP's press release).

Skype refuses to register as an operator in France and faces possible cirminal prosecution

"The company Skype Communications S.a.r.l.* (referred to hereafter as “Skype”), which is headquartered in Luxembourg, provides French internet users with services that allow them to make phone calls to or from a device connected to the internet, e.g. a computer or a smartphone, using software produced by another company in the Skype group, Skype Software S.a.r.l.

If not all of the solutions that Skype provides are electronic communications services, this does seem to be the case for the service that allows internet users located in France to call fixed and mobile numbers in France and around the world, using their computer or smartphone.

Here, ARCEP offers a reminder that a company is not required to obtain administrative approval to become an electronic communications operator in France, but only to declare themselves beforehand, pursuant to Article L. 33-1 of the French Postal and electronic communications code (CPCE). A failure to comply with this obligation does, however, constitute a criminal offence.

The fact of engaging in the business of electronic communications operator, and particularly the fact of providing a telephone service to the public, also implies compliance with certain obligations, which include the routing of emergency calls and implementing the means required to perform legally ordered interceptions.

As a result, ARCEP has requested several times that Skype declare itself as an electronic communications operator, which the company has failed to do thus far.
In keeping with his responsibility to ensure that these essential provisions of France’s electronic communications law are upheld, in accordance with CPCE Article L. 36-10, the Chairman of ARCEP has apprised the Paris public prosecutor of these facts, which could be classified as a criminal offence" (see the French NRA's press release).

ARCEP gives green light to Bouygues Telecom to deploy 4G in the 1800 MHz band

"ARCEP authorises Bouygues Telecom to deploy 4G in the 1800 MHz band, starting on 1 October 2013, provided the operator relinquish certain frequencies beforehand" (see press release).

Cypriot NRA consults on markets 4 and 5 draft reviews

OCECPR consults on its draft market 4 and 5 reviews (see press release and related page for market 4 and press release and related page for market 5, all in greek).

Austrian NRA issues tenders for the 800/900/1800 MHz bands

Austrian NRA issued the tenders for the 800/900/1800 MHz bands (see related page, in german) and a warning on potential collusion (see press release).

High Court proceedings come to an end in Irish PRS case

"High Court proceedings challenging the regulatory framework applicable to PRS were commenced in April 2011 by the Plaintiffs and were listed for hearing in the Commercial Court in June 2013.

These proceedings have now been brought to an end and were struck out on consent of all the parties in the Commercial Court today.
The conclusion of these proceedings is very much welcomed by ComReg.
ComReg, in accordance with its statutory obligation, is fully committed to ensuring the interests of end-users of PRS are protected and to this extent it actively enforces the Code of Practice for PRS
which is in full effect since 25 July 2012.
ComReg looks forward to continuing to work with stakeholders, industry and consumers alike, to further develop its approach to PRS regulation and in the coming period ComReg will be undertaking the following initiatives:
- Establishing an industry forum to meet periodically to discuss industry and market developments which are relevant to the regulation of PRS.
- Commencing a consultation in respect of the PRS code which will address inter alia the issue of whether a threshold value should be introduced below which the Double Opt-in requirements set out in sections 5.15 to 5.18 of the Code of Practice (“the Double Opt-in Requirements”) would not apply or might apply in a modified manner.
- Publishing an information notice outlining its approach to the granting of permission, pursuant to section 3.3 of the Code of Practice, for the use of third party PIN verification systems as an alternative means of complying with the Double Opt-in Requirements of the Code" (see Information notice).

Irish NRA issues information notice on MCV

ComReg issues information notice on its approach to Mobile Communications on board Vessels.

MCA issues final market 4 and 5 reviews

MCA issues final market 4 and 5 reviews (see related page).

Portuguese NRA consults on draft mobile call termination market review

"By determination of 1 March 2013, ANACOM approved a draft decision on the definition of the wholesale market of call termination on the public telephone network at a fixed location, assessment of significant market power (SMP) in that market and imposition, maintenance, amendment or withdrawal of regulatory obligations, including the price-regulating mechanism for the period up to July 2014" (see related page).

Ofcom prepares for second phase of local TV licensing

"Ofcom ... invites expressions of interest to offer local TV services in 30 locations across the UK, ahead of a second phase of licensing" (see OFCOM's press release).

OFCOM consults on spectrum pricing for terrestrial broadcasting

OFCOM consults on its "revised policy proposals on the introduction of charges for radio spectrum used by terrestrial broadcast multiplex operators" (see related page).

OFCOM consults on future demand for mobile broadband spectrum and consideration of potential candidate bands

OFCOM consults on future demand for mobile broadband spectrum and consideration of potential candidate bands in view of the forthcoming WRC-15 (see related page).

UK Law Commission issues advice paper on Unfair Contract Terms

The Law Commission issued its Advice as regards "the review and update of the recommendations made by the two Law Commissions in their 2005 Report on Unfair Terms in Contracts in so far as they affect contracts made between businesses and consumers and examine in particular article 4(2) of the Unfair Terms Directive on terms exempt from review in the light of recent case law" (see related page).

UK Law Commission's Report on the Electronic Communications Code revision issued

"...The reforms that we recommend would:
  • provide a clearer definition of the market value that landowners can charge for the use of their land, giving them greater confidence in negotiating and giving providers a better idea of what their network is likely to cost;
  • clarify the conditions under which a landowner can be ordered to give a designated network provider access to his or her land, bringing more certainty to both landowners and providers and helping them to reach agreements more easily;
  • resolve the inconsistencies between the current Code and other legislation;
  • clarify the rights of landowners to remove network equipment from land;
  • specify limited rights for operators to upgrade and share their network equipment; and
  • improve the procedure for resolving disputes under the Code.
As agreed with the Department for Culture, Media and Sport at the inception of the project, our report does not include a draft Bill; it will be for Government to draft and implement a revised Code." (see the Law Commission's related page).

Commission consults on European Small Claims Procedure - Impact in eCommerce

"The European Commission has today launched a public consultation on how to improve access to justice for consumers and small businesses in small-scale cross-border disputes. The European Small Claims Procedure offers a cheap and easy way to resolve cross-border disputes for amounts below €2,000, without complicated legal procedures. It can be used in cases where consumers need to enforce their rights, for example because of non-delivery of goods ordered from another EU country. But a report last year from the European Consumer Centres Network found that this user-friendly procedure is not yet widely known and is often under-used .... The European Commission is now asking for input from consumers, businesses and the general public on how the Small Claims Procedure currently operates and how it could be improved, simplified or modernised. The aim is to improve confidence in cross-border shopping, helping consumers and businesses make full use of Europe’s Single Market.


The consultation launched today will run until 10 June 2013, after which time the Commission will assess the contributions received. The Commission will then report back before the end of 2013 on how the Small Claims Procedure is operating after its first five years. The report will be accompanied, if necessary, by a proposal to revise the Small Claims Regulation. The consultation will ask for input about how the Small Claims Procedure is currently being used and how it can be improved, asking questions such as whether the threshold for claims should be raised above EUR 2,000, whether legal documents used in the procedure should be able to be sent electronically or whether the Procedure should address the issue of Court fees." (see the Commission's press release).

Kroes commits to present measures for a digital single market, before European Council's October "deadline"

Kroes commits to present measures for a digital single market, before European Council's October "deadline" (see Kroes' press release and the Council's Conclusions).

Commission's Art. 7 Comments to CMT on the latter's reviews of leased lines markets

The European Commission made the following comments, in its decision addressed to the Spanish NRA, on the latter's reviews of the wholesale terminating and that of the wholesale trunk segments of leased lines markets:

"CMT's commitment to impose regulation for terminating segments of Ethernet leased lines above 1 Gbit/s
In accordance with Article 8(4) of the Access Directive, obligations imposed shall be based on the nature of the problem identified, proportionate and justified in light of the objectives of Article 8 of the Framework Directive, including the need to comply with the principle of technological neutrality. If the competitive conditions vary between the provision of lower and higher leased lines capacities, but at the same time, the boundaries between different types of leased lines are not stable enough to identify separate relevant markets, CMT should consider imposing differentiated remedies. The Commission is of the view that there is a risk that imposing regulation only on lines based on Ethernet interfaces with a limited speed would lead to a foreclosure of alternative operators of important parts of the relevant market.
Against this background, the Commissi on welcomes CMT's commitment to amend the original draft measure and to impose appropriate obligations for leased lines with Ethernet interfaces above 1 Gbit/s, which are already provided by the SMP operator.
Accounting separation in the market for trunk segments of leased lines
The Commission recalls that, according to Article 8(4) of the Access Directive, obligations imposed shall be based on the nature of the problem identified and shall be proportionate and justified in light of the objectives of Article 8 of the Framework Directive (including the need to safeguard competition). In this respect, the Commission notes that CMT itself highlights the need for transparency and accounting data, especially on the Peninsula-Canary Islands route, as the SMP operator may cross-subsidize some of its services, thereby raising further barriers to entry and ultimately increasing the risk of market foreclosure. Therefore, the Commission invites CMT to consider the imposition of accounting separation in order to properly address the identified competition problem".

Friday, 15 March 2013

Court decides in ITV Broadcasting case

The CJEU delivered its judgment in Case C-607/11, the operative part of which reads as follows:

"1.      The concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, must be interpreted as meaning that it covers a retransmission of the works included in a terrestrial television broadcast
–        where the retransmission is made by an organisation other than the original broadcaster,
–        by means of an internet stream made available to the subscribers of that other organisation who may receive that retransmission by logging on to its server,
–        even though those subscribers are within the area of reception of that terrestrial television broadcast and may lawfully receive the broadcast on a television receiver.
2.      The answer to Question 1 is not influenced by the fact that a retransmission, such as that at issue in the main proceedings, is funded by advertising and is therefore of a profit-making nature.
3.      The answer to Question 1 is not influenced by the fact that a retransmission, such as that at issue in the main proceedings, is made by an organisation which is acting in direct competition with the original broadcaster."

AG delivers Opinion in International Sales and Others case

AG Mangozzi delivered his Opinion (in french) in Case C-521/11, the International Sales and Others case, the conclusions of which read as follows (translation in English is mine):

"1) A national legislative scheme shall be regarded as compatible with the notion of  'fair compensation' of Directive 2001/29/EC, where

(a)    the persons entitled under Article 2 of Directive 2001/29/EC have a right to equitable remuneration, exercisable only through a collecting society, against any person who, acting on a commercial basis and for remuneration, is first to place on the domestic market recording media capable of reproducing the works of the rightholders, and
(b)    which provides first, the possibility of a priori exemption from the obligation of fair compensation, as regards persons, natural or legal, for which it is reasonable to assume, based on objective criteria - even mere indications - that they acquire the recording media for purposes manifestly different from those based on which the fair compensation is foreseen, and second, the general possibility of reimbursement of the fair compensation in all instances where it is proved that the use of the recording media did not constitute an act capable of causing damage to the creator.

2) In view of the proposed answer to the first question, I do not consider it necessary to answer the second question. If the Court were to consider it necessary to respond, I propose that the answer shall be as follows:

2.1) It shall be regarded as compatible with the notion of  'fair compensation' of Directive 2001/29/EC, where the right to equitable renumeration exists only where recording media are marketed to natural persons who use the recording media to make reproductions for private purposes, and

2.2) under which, in case of sale of the recording media to natural persons, it shall be assumed until the contrary is proven, that they will use such media with a view to making reproductions for private purposes. Natural persons shall have the possibility of a priori exemption from the obligation of fair compensation or that of potential reimbursement of the paid fair compensation when it is proved that the recording media is acquired for purposes manifestly different from those of reproduction for private purposes or that the use was for purposes manifestly different from those based on which the fair compensation is foreseen.

3) It does not follow from Directive 2001/29/EC that the right to be exercised by a collecting society to payment of fair compensation does not apply if, in relation to half of the funds received, the collecting society is required by law not to pay these to the persons entitled to compensation but to distribute them to social and cultural institutions. It is up to the Court to decide to what extent does the application of the national provision ensure in concreto a form of indirect compensation without undue discrimination between different categories of creators.

4) Directive 2001/29 does not preclude an obligation to fair compensation in the Member State where the damage is incurred, when a renumeration has already been paid in the Member State where the recording media has been placed in the market. The Member State, though, in which the fair compensation has been unduly paid, has the obligation to ensure that the persons not obliged to pay the fair compensation, may have the possibility to succesfully, potentially through legal recourse before national judicial authorities, receive reimbursement of the unduly paid amounts as fair compensation.

For a better translation see IPKat.

Commission concludes review of the Unfair Commercial Practices Directive

"Today, the European Commission outlined a series of actions to tackle aggressive commercial practices across the EU such as fake ‘free’ offers, ‘bait and switch’ advertising for products which cannot be supplied, and exhortation of children. Five years after it entered into force, the Commission reviewed the application of the Unfair Commercial Practices Directive and announced plans to step up enforcement of the rules to increase citizens' trust when shopping in Europe’s internal market.
The initiative is part of the Commission’s action to boost consumer confidence under the European Consumer Agenda .... By shopping online across EU borders, consumers can benefit from up to 16 times more products from which to choose, but 60% of consumers are still not taking advantage of this. As a result, consumers do not fully benefit from the variety of choice and lower prices available in the Single Market. Improving consumer confidence by better enforcing the rules can provide a major boost to economic growth in Europe. Indeed, surveys show that more consumers are now interested in making cross-border purchases and are willing to spend more money cross-border than in 2006, when the EU rules had not yet come into force.

Thanks to the Unfair Commercial Practices Directive, national consumer protection watchdogs have been able to curb a broad range of unfair business practices, such as providing untruthful information to consumers or using aggressive techniques to influence their choices. By replacing 27 national regimes with one set of rules, the Directive has simplified rules on unfair commercial practices, making it easier for consumers to know what their rights are, no matter where in the EU they are shopping. But both consumers and traders are still faced with uncertainty in knowing how these rules will be enforced by the different national enforcement bodies.

Four out of five EU online consumers (81%) used a price comparison website in 2010. However, such tools can only help to boost consumer confidence if they provide clear and accurate information – which is not necessarily the case today. Various stakeholders have signalled problems with price comparison websites, particularly in relation to transparency and incompleteness of the information given.

What's more, recurring issues or emerging commercial practices, such as those taking place in the on-line environment, often have a cross-border dimension and raise common questions for national enforcers. This calls for a more coherent approach to enforcement.
By way of example, a leading market player in electronic devices was fined by a national enforcer for offering consumers a 2 year warranty on their products for a charge, despite consumers already having a right to this service for free under EU law. Given that similar concerns had arisen in other Member States, Vice-President Viviane Reding wrote to all Consumer Affairs Ministers to draw attention to the case and enquire as to the enforcement action taken nationally. The responses received highlight a lack of consistency in interpreting and enforcing the Directive by national authorities.

The Commission will therefore seek to play a more prominent role in reinforcing cooperation between national enforcement bodies by:

  • Strengthening the efficiency of the European consumer protection network and further promoting coordinated enforcement actions ("sweeps");
  • Assisting Member States in effectively applying the Directive with guidance and sharing best practices;
  • Developing enforcement indicators to detect shortcomings and failures that require further investigative and/or corrective action;
  • Establishing regular thematic workshops between national enforcers and organising training for enforcers and the judiciary.

The travel and transport, digital, financial services and property markets have been identified as the major sectors where consumers continue to lose out and where more efforts are required. In addition, enforcers need to take a closer look at environmental 'green' claims by retailers, which are often very general, vague and not always used responsibly." (see the Commission's press release).

ADR Directive and ODR Regulation approved by the Parliament

ADR Directive and ODR Regulation approved by the European Parliament (see the press release).

Art. 29 WP issues Opinion on smarphone apps

Art. 29 WP issues Opinion on smarphone apps (see press release as well).

Conclusion of the IoT consultation

"The European Commission published the results of the public consultation on the Internet of Things and the output from the work of the group of experts on the Internet of Things" (see related page with documents).

COCOM - Implementation of 112

The Communications Committee has adotped its working document (update) on the implementation of the European emergency number 112 (see annex as well).

RSC mandates CEPT to develop harmonised technical conditions for the "700 MHz" frequency band in the EU for the provision of wireless broadband

Under the Radio Spectrum Committee's mandate, "CEPT is herewith mandated to undertake work to develop technical harmonisation conditions for the use of the 694-790 MHz frequency band for the provision of wireless broadband electronic communications services and shared use with other services or applications in support of EU spectrum policy priorities.

In the work carried out under the Mandate, the general and specific policy objectives of the RSPP, such as effective and efficient spectrum use and the support for specific Union policies shall be given utmost consideration. In implementing this mandate, CEPT shall, where relevant, take utmost account of EU law applicable and support the principles of service and technological neutrality, non-discrimination and proportionality insofar as technically possible.

CEPT is also requested to collaborate actively with the European Telecommunications Standards Institute (ETSI) which develops harmonised standards for conformity under Directive 1999/5/EC. In this regard, CEPT must indicate the potential impact of the deliverables on this Mandate on non-radio end-user equipment for fixed broadcasting and broadband electronic communications services in support of standardisation work relating to interference mitigation.

In particular, CEPT is mandated to carry out technical studies intended to support the policy objectives presented above, in fulfilment of the following tasks:

(1) Develop a preferred technical (including channelling) arrangement and identify common and minimal (least restrictive) technical condition for wireless broadband use in the 694-790 MHz frequency band for the provision of electronic communications services, subject later to a precise definition of the lower band edge under task (3), as well as PPDR services that can make use of such technical conditions. These conditions should be sufficient:

     (a) to avoid interference between wireless broadband use and other services in the 694-790 MHz band and in adjacent bands, and in particular to ensure the appropriate protection of broadcasting and PMSE services below the lower band edge, as well as compliance with EU harmonised conditions for the 790-862 MHz band;
     (b) to facilitate cross-border coordination, including at the EU external

(2) In performing (1), study the possibility of identifying suitable spectrum to
accommodate incumbent uses in the 694-790 MHz band such as PMSE (in particular wireless microphones), and develop common technical conditions for the coexistence of such uses with wireless broadband use in the band, taking into account spectrum sharing requirements and efficient spectrum

(3) In addition to and based on (1) and taking utmost account of the possibility of
international harmonisation, assess the need to refine the conditions developed under (1), in particular the common and minimal (least restrictive) technical conditions, in order to ensure that they are sufficiently precise for the development of EU-wide equipment. The overall aim of a coordinated European approach should be considered, as implemented through detailed national decisions on frequency rearrangements in line with international frequency coordination obligations.

The Commission may provide CEPT with further guidance on this mandate depending on future agreements at EU level (which may involve the European Parliament and the Council) concerning spectrum resources to be made available in the context of specific EU policies, as well as relevant impact assessments the Commission may undertake in this context. Also, the impact of spectrum demand assessments for different uses at national level may require to be taken into account during the work on the Mandate.

CEPT should provide deliverables under this Mandate according to the following schedule:

Delivery date                       Deliverable                                               Subject
November 2013               Interim Report from CEPT             Description of work undertaken and
                                           to the Commission                         interim results on tasks (1) and (2)
July 2014                       Final Draft Report A from                Description of work undertaken and
                                       CEPT to the Commission                      final results on tasks (1) and (2)
November 2014            Final Report A from CEPT                 Description of work undertaken and
                                     to the Commission, taking                  final results taking into account the
                                     into account the outcome of               results of the public consultation on
                                        the public consultation                      tasks (1) and (2)
March 2016                  Final Draft Report B from                Considering international developments
                                     CEPT to the Commission                  such as outcomes of the ITU WRC-15- 
                                                                                                 description of work undertaken and final
                                                                                                 results of the Mandate on task (3) as
                                                                                                well as review of the results of the Final
                                                                                                      Report on tasks (1) and (2)
July 2016                   Final Report B from CEPT              Considering international developments
                                    to the Commission                             such as outcomes of the ITU WRC-15-
                                                                                          description of work undertaken and final
                                                                                            results of the Mandate on task (3) as
                                                                                             well as review of the results of the Final
                                                                                              Report on tasks (1) and (2), taking into
                                                                                        account the results of the public consultation. 

CEPT is requested to report on the progress of its work pursuant to this Mandate to all meetings of the Radio Spectrum Committee taking place during the course of the Mandate.

The Commission, with the assistance of the Radio Spectrum Committee and pursuant to the Radio Spectrum Decision, may consider applying the results of this mandate in the EU, pursuant to Article 4 of the Radio Spectrum Decision and subject to the results of the inventory process and the guidance of the RSPG."