Udtalelse fra Bundesrat vedr. forslag til direktiv om en kodeks for elektronisk kommunikation

Bundesrat Official Document 612/16 (Decision)
16.12.16
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ISSN 0720-2946
Decision
Of the Bundesrat
Proposal for a Directive of the European Parliament and of the
Council establishing the European Electronic Communications
Code (Recast)
COM(2016) 590 final; Council doc. 12252/16
In its 952nd
session on 16th December 2016 the Bundesrat adopted the following
Opinion pursuant to §§ 3 and 5, Act on Cooperation between the Federation and the
Federal States in European Union Affairs (EUZBLG):
Fundamental issues
1. The Bundesrat welcomes the Commission’s inclusion in its 14th September
2016 Connectivity Package of a proposal to recast the legal framework for
telecommunications to take account of recent and future developments in the
telecommunications and broadband market. The Bundesrat considers the
proposal that has been submitted to constitute a good basis for the forthcoming
discussion process at the European level. The Bundesrat takes the view that it
is also appropriate to combine the provisions previously incorporated into four
Directives (Framework Directive; Authorisation Directive; Access Directive;
Universal Services Directive) in a single piece of legislation. In this context
the Bundesrat would however like to see more concise drafting of the Code.
2. The Bundesrat considers it essential that the successful principles enshrined in
existing legislation be maintained in the recast of the legal framework for
telecommunications; these existing provisions should only be restricted,
modified or supplemented if this is justified in the light of market
developments. The underlying principle in this process must be to ensure
effective competition, which has made a decisive contribution to the
development of telecommunications and broadband markets.
Europaudvalget 2016
KOM (2016) 0590 Bilag 2
Offentligt
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3. The Bundesrat therefore welcomes the fact that the new legal framework
essentially adheres to the principle of regulation of operators with “significant
market power” (SMP regulation), as well upholding competition as a
fundamental principle of regulation. Making the SMP provisions less stringent
would in the Bundesrat’s opinion only be justified if this did not jeopardize
competition.
4. The Bundesrat also supports the new Code’s aim of making a significant
contribution to the establishment and utilisation of “very high capacity”
networks (VHC networks). At the same time, the Bundesrat emphasises its
view that there should be no priority or subordinate objectives in the legal
framework, now or in the future.
5. On the whole the Bundesrat is concerned that the new Code will not give rise
to greater simplification, as is intended, but will instead lead to more
regulation and render the procedures more complex.
Objectives
6. The Bundesrat welcomes the introduction of a new objective in Article 3, Sub-
section 2, Letter a, namely promotion of broad-based access to and utilisation
of very high capacity data connections (VHC networks). However the
Bundesrat considers that there is a need to clarify that the four objectives
indicated in Article 3, Sub-section 2 are of equal importance, as these
objectives are not only connected but in many cases inter-dependent. For
example, competition should be seen as the key factor driving innovation and
investment in infrastructure in Europe (cf. BR Official Document 145/15
(Decision)).
Right of veto for the Commission concerning remedies (for market failures)
7. The Bundesrat is opposed to the right of veto for the Commission (together
with GEREK; “double lock procedure”) envisaged in Article 33, Sub-section
5, Letter c, as this would constrain the fundamental autonomy of national
regulatory authorities to an unacceptable degree.
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Frequency policy
8. The Bundesrat is furthermore also opposed to the proposed broad extension of
the Commission’s rights to intervene in particular in the light of the numerous
individual provisions foreseen for all general and specific aspects of frequency
allocation procedures.
The mandatory decision-making powers foreseen in particular in Articles 38,
45, 46, 47, 51, 53 and 54, with GEREK involvement, would prevent Member
States from freely choosing the form and means of regulation. It is however
crucial for Member States to be able to decide freely, pursuant to the wording
of Article 288 TFEU, which is a primary law provision; the level and detail of
regulation envisaged by the Commission would therefore not be compatible
with the legal instrument proposed in this case, namely a Directive.
9. In the Bundesrat’s view, the Commission proposals on frequency policy do
not reduce bureaucracy or lead to a more rapid and efficient allocation
procedure, but would instead cause considerable delays and make regulatory
decisions significantly more complex.
By giving the Commission the authority to have the final say on decisions
relating to frequency allocation, the proposed configuration of the peer review
process described in Article 35 would lead to quasi permanent legal and
expert oversight of national regulatory authorities, including Germany's
constitutionally enshrined cooperation between the Federation and the federal
states on matters pertaining to frequency regulation.
10. In its Opinion on the proposal on utilisation of the 470 - 790 MHz frequency
band in the European Union, the Bundesrat has already rejected stipulation of
far-reaching coverage requirements by the Commission concerning utilisation
of this frequency band (cf. BR Official Document 60/16 (Decision)).
The Bundesrat therefore reiterates its view, as elucidated in that Opinion, that
stipulating coverage requirements is a matter for national procedures and must
be defined on the basis of national market situations.
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11. The Bundesrat is opposed specifically to undifferentiated determination of
frequency allocations for a period of at least 25 years pursuant to Article 49,
Sub-section 2. The Bundesrat cannot identify any basis that would justify such
a blanket stipulation, nor any indication of the scrutiny of the impact on
market access, competition, innovation incentives and future technical
developments that would be required before introducing such a measure.
12. Similarly the Bundesrat cannot agree to powers being granted to the
Commission pursuant to Article 53 that would empower the Commission,
with the argument of harmonisation across the European Union, to abitrarily
reduce the utilisation period for frequency bands that have already been
allocated. A decision of this kind would lead to a high degree of legal
uncertainty for market participants and potential claims for compensation from
rights holders.
13. The Bundesrat takes the view that the proposed Directive, contrary to the
Commission’s intentions, would have rather negative effects on states in the
EU that have played a “pioneering role” in frequency spectrum allocation. In
its Opinion on the Commission Communication on a Digital Single Market
Strategy for Europe (BR-Official Document 212/15 (Decision)), the Bundesrat
has already expressed its view that national administration of radio frequencies
has proved to be an efficient means to maintain a balance between economic,
social and cultural aspects. The Bundesrat continues to hold that Germany’s
rapid and forward-looking allocation of frequencies functions as an incentive
for other Member States to meet the Commission’s ambitious goals for the
implementation schedule.
14. The Commission’s proposals on frequency policy therefore in the Bundesrat’s
view extend far beyond the requisite level of regulation.
The Bundesrat is of the opinion that the new provisions on frequency policy
should be limited to stipulation of a timeframe for implementation deadlines
within the EU, establishment of substantiated minimum requirements for
frequency allocation procedures, and realisation of the associated
implementing provisions and implementation-related powers for the
Commission.
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Access regulation
15. Market analysis procedure (Article 65): the Bundesrat welcomes the
establishment of the three criteria test as the fundamental basis for systematic
regulation of matters pertaining to competition law. However, the Bundesrat
takes an extremely critical view of the exemptions from the SMP regulation
envisaged by the Commission. The Bundesrat for example would question
whether VHC networks with been complementary expansion as part of a co-
investment scheme involving more than one network operator should be
exempt from existing access obligations for third parties, in as much as
(virtual) access to the network is guaranteed before the new expansion was
implemented. The Bundesrat doubts that curtailing competition in this manner
would produce additional incentives for investments in new networks.
Extending market analysis cycles to up to 5 (+ 1) years appears acceptable, but
a more precise description is needed of the scope for national regulatory
authorities to respond to market developments by initiating a new market
analysis at an early stage.
Evaluating market failure solely from the perspective of end-user markets is
not a sufficient response in the Bundesrat’s view; market failure should (also)
continue to be related to an appraisal of wholesale markets.
16. Access to civil engineering (Articles 70 and 71): in the Bundesrat’s view such
access is to be welcomed, however for systematic reasons it should be
restricted to SMP firms. There should not however be any stipulation or
recommendation of such a primary wholesale product. Instead, alternative
wholesale products should be available on the basis of the infrastructure and
market-related preconditions in each Member States.
17. Symmetrical obligations (Article 59): The Bundesrat considers that
introducing additional symmetrical obligations would constitute an
unacceptable paradigm shift compared with the provisions to date, which
worked on the postulate that regulation is essentially only required for
operators with significant market power. In the Bundesrat’s view the proposed
approach would lead to more regulation, would reduce market competition
and impede investments by competitors. Furthermore, the EU Directive on
Broadband Cost Reduction (transposed in Germany in the Bill on Facilitation
of the Development of Digital High-Speed Networks (DigiNetzG)) has
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already introduced additional symmetrical obligations; the market impact of
these measures should first be observed. The Bundesrat is therefore opposed
to the introduction of further symmetrical obligations.
18. Transnational markets (Articles 63 and 64): The Bundesrat does not in
principle see any need for scrutiny and regulation of transnational markets.
This would also risk devaluing national regulation. However, the Bundesrat
requests the Commission to examine whether it might be advisable to foresee
“an arbitrator function” for GEREK should problems arise at the borders
between Member States.
19. Geographical surveys (Article 22): The Bundesrat acknowledges the
Commission’s efforts to address the problem of “blank spots” in broadband
network expansion and to tackle the risk entailed in overbuilding of existing
high-performance networks. The Bundesrat however points out that the legal
framework for telecommunications falls within the ambit of competition law
and that it is not a suitable policy area to take action through state aids or
other support, let alone for state planning of broadband network expansion. In
addition, the instrument of geographical surveys would involve signficant
bureaucratic effort, without this producing any tangible benefits in the spirit of
the proclaimed objectives. This measure could not be viewed as a viable
incentive mechanism if national regulatory authorities were to be obliged in
future to conduct geographical surveys of network operators’ intentions to
invest in network infrastructure, with powers to impose penalties if false
information were provided; instead, there is good reason to fear it would
trigger increased reluctance to make new investments. The Bundesrat
therefore proposes that these provisions be deleted and requests the
Commission to examine alternative instruments, compatible with the legal
framework for telecommunications, in order to attain this goal. Furthermore,
the Bundesrat also calls for improved linkage of regulatory and state aid
regimes.
20. Pricing flexibility for SMP operators (Article 72): the Bundesrat requests the
Commission to substantiate why special provisions, deviating from the three
criteria test, are purportedly justified.
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21. Regulatory treatment of new network elements (Article 74): the Bundesrat
considers that this provision (tantamount to a “regulatory holiday”) would
have a significant detrimental impact on competition. This provision should
therefore be deleted.
22. Migration from legacy networks (Article 78): the Bundesrat considers that it is
very prudent to ensure transparency and national regulatory authorities'
involvement in the migration process, as envisaged in the proposal. However
the same regulatory provisions must apply for the new networks as for legacy
networks on the basis of the three criteria test.
GEREK
23. The Bundesrat welcomes the proposed reinforcement of national regulatory
authorities' independence and the proposed harmonisation of their remit.
24. The Bundesrat considers that the organisational form of GEREK to date, as an
“umbrella” structure for the Regulatory Council, consisting of representatives
of national regulatory authorities and the GEREK Bureau, has proved its
worth. This structure ensures that GEREK functions as a grouping of national
regulatory authorities to harmonise EU-wide provisions on
telecommunications regulation, rather than being an EU Agency attached to
the Commission with its own sovereign rights. The Bundesrat views this
structure as providing the best guarantee of national regulatory authorities’
independence.
25. The Bundesrat is therefore opposed to the establishment envisaged in the
proposed Regulation for a “GEREK” Agency with its own legal identity and
an expanded remit, and is also opposed to areas of responsibility previously
within the ambit of national regulatory authorities being transferred to such an
Agency. The Bundesrat also has particular concerns pertaining to the realm of
frequency regulation, where it is envisaged that the new Agency would be
granted substantial powers in all issues relating to grant and allocation of
frequencies, even for detailed provisions.
26. The Bundesrat notes that the Commission has not yet provided a substantiated
justification of the need for this type of comprehensive centralisation of
frequency regulation. Instead, only general catch-all expressions such as
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“harmonisation”, “uniform implementation of the legal framework”,
“shortcomings in the existing institutional structure”, “ a lack of coherence”
“efficient oversight”, “greater influence”, “cross-border aspects”, “centralised
register-keeping” are cited by way of justification.
27. The Bundesrat is opposed to the proposal that national regulatory authorities
be subordinated to stipulations drawn up by a European Agency and the
Commission; this would mean a loss of independence for national regulatory
authorities.
28. The Bundesrat also takes a similar view of centralisation of frequency
administration. The possible advantages of central coordination would be
outweighed by cumbersome and bureaucratic harmonisation procedures,
which, given the average level of development in the EU, would slow down or
even prevent future developments in frequency utilisation.
29. The Bundesrat therefore vigorously rejects centralisation of GEREK in an
Agency as envisaged in the proposed Regulation, and likewise rejects the
proposal that such an Agency would handle frequency administration.
30. Instead the Bundesrat advocates independent regulatory authorities and
frequency administration at Member State level. The Bundesrat underlines in
this context that the existing GEREK structure and frequency administration
system have, generally speaking, proved their worth and that their basic
structure should in essence be maintained. The Bundesrat would however
welcome measures to further strengthen GEREK (including improved staffing
levels) within the framework of its existing structure and competences.
Regulation of Over-The-Top Players (OTT)
31. The Bundesrat broadly welcomes the Commission’s appraisal that OTT
communications services are to be categorised as electronic communications
services, as well as noting its awareness in this context of the fundamentally
different market modalities for OTT communications services, which are
often provided in return for a non-monetary consideration, for example access
to personal data or end users’ willingness to view advertising.
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Particularly in the light of the pronounced innovative potential of OTT
communications services, the Bundesrat takes the view that
telecommunications-specific regulatory obligations cannot be transposed
verbatim to the structures of new OTT services. The Bundesrat however
considers it advisable to ensure equal treatment of OTT communications
services that constitute functional substitutes for telecommunications services,
particularly with regard to data protection and consumer protection.
32. The Bundesrat shares the Commission’s assessment that a future-oriented
definition of electronic communications services cannot be based solely on
technical parameters but must instead adopt a functional approach. However,
the Bundesrat has considerable doubts as to whether the distinction proposed
by the Commission between number-dependent and number-non-dependent
interpersonal communications services can provide a practicable and enduring
basis for further development of the legal framework for electronic
communications in the long term, as the question of whether a national or
international numbering resource is used, pursuant to ITU-E.164 stipulations,
is primarily a technical parameter, which, for example, does not provide any
information about the substitutability of an electronic communications
services from an end-user perspective.
33. Against the backdrop of this extremely complex challenge, the Bundesrat
notes that the Commission has on many points taken the right decision about
the general orientation of policy, for example concerning measures to
guarantee interoperability if there is a genuine threat to connectivity, or
effective access to emergency services. With regard to other points in the
proposed Directive, the Bundesrat however has a number of doubts as to
whether in the long term the legislation will be able to reflect the foreseeable
dynamics of innovation, as, for example, social networks are explicitly not
categorised as interpersonal communications services, although further inte-
gration of communications services in this sphere appears possible.
34. Against this backdrop and in the light of the fact that there does not at present
appear to be sufficient clarity as to the overlapping impact for example of the
forthcoming ePrivacy Directive and the Data Protection Basic Regulation in
terms of important aspects of inter-personal communications services such as
data protection and consumer protection, the Bundesrat proposes that a
structure that is fundamentally open to developments should be adopted in
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categorising OTT communications services. To that end, the Electronic
Communications Code should grant GEREK authority to use a replacement
identifier or another such suitable identifier, as could for example be stipulated
in the relevant “GEREK Guidelines for Electronic Communication”; this
could create a basis that would offer scope for development and for a demand-
driven approach, also concerning categorisation of OTT communications
services.
35. The Bundesrat takes the view that this kind of forward-looking structure
would in the long term afford greater scope to take a demand-driven approach
in striving to attain an equal focus on data protection, data security and
consumer services in classical telecommunications services and OTT
communications services. Furthermore the Bundesrat also draws attention to
its Resolution “Adapting the Legal Framework to the Digital Age in the
Telecommunication Sector – Legal Security for Messenger Services,
Location-Based Services and other new business models” of 22nd April 2016
(BR-Official Document 88/16 (Decision)).
Universal Services
36. The Bundesrat welcomes the moves to modernise provisions on Universal
services by moving away from services that are no longer up-to-date, through
a focus on language-based communication services and a functional Internet
access service.
37. In the spirit of harmonisation of conditions across the EU, the Bundesrat takes
the view that the sole definition mechanism foreseen for the Member States to
establish arrangements for basic broadband coverage must not lead to a
disproportionately differentiated approach in devising the policy on basic
broadband coverage. The Bundesrat therefore requests that steps be taken in
the further stages of the procedure to ensure that policy details devised by
individual Member States are set within an EU-wide framework of provisions
and procedures.
38. The Bundesrat also advocates steps to ensure that the successful model of
market-driven broadband expansion in Germany, linked to market-compatible
funding models developed for Germany to provide coverage for “blank spots”
in broadband provision, is not thwarted by an inexpedient design of basic
broadband coverage provision focused on universal services.
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Consumer Protection
39. The Bundesrat broadly welcomes greater harmonisation of Europe-wide
regulations on consumer protection.
40. The Bundesrat points out that particular attention has already been paid to
sector-specific consumer protection in the telecommunications sector in
Germany in recent years.
41. The Bundesrat notes that a high level of sector-specific consumer protection is
guaranteed in Germany and that operators in the telecommunications industry
have adapted to the associated regulations and procedures on a regular basis,
expending considerable effort to do so.
42. The Bundesrat therefore requests that measures be taken to ensure as much
continuity and legal certainty as possible in carrying over the existing German
sector-specific consumer protection framework into the new EU-wide harmo-
nised sector-specific regulatory framework that is to be established.
43. The Bundesrat reserves the right to address and comment on the proposed
Directive again on the basis of progress in deliberations at the European level.
Direct transmission to the Commission
44. The Bundesrat shall transmit this Opinion directly to the Commission.