Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and services, and 2002/20/EC on the authorisation of electronic communications networks and services Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on consumer protection cooperation Proposal for a Regulation of the European Parliament and of the Council establishing the European Electronic Communications Market Authority COM(2007) 697 final — 2007/0247 (COD) — COM(2007) 698 final — 2007/0248 (COD) — COM(2007) 699 final — 2007/0249 (COD)
Date: 2008-08-30
Institutions: European Economic and Social Committee
Subjects: competition law, consumer protection, electronic mail, protection of privacy, regulation of telecommunications, single market, telecommunications, transmission network

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Opinion of the European Economic and Social Committee on the

— Proposal for a Directive of the European Parliament and of the Council amending Direc-
tives 2002/21/EC on a common regulatory framework for electronic communications networks
and services, 2002/19/EC on access to, and interconnection of, electronic communications
networks and services, and 2002/20/EC on the authorisation of electronic communications
networks and services

— Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/
22/EC on universal service and users' rights relating to electronic communications networks,
Directive 2002/58/EC concerning the processing of personal data and the protection of privacy
in the electronic communications sector and Regulation (EC) No 2006/2004 on consumer
protection cooperation

— Proposal for a Regulation of the European Parliament and of the Council establishing the Euro-

pean Electronic Communications Market Authority

COM(2007) 697 final — 2007/0247 (COD)

COM(2007) 698 final — 2007/0248 (COD)

COM(2007) 699 final — 2007/0249 (COD)

(2008/C 224/11)

On 10 December 2007, the European Commission decided to consult the European Economic and Social
Committee, under Article 95 of the Treaty establishing the European Community, on the

Proposal for a Directive of the European Parliament and of the Council amending Directives 2002/21/EC on a
common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and
interconnection of, electronic communications networks and services, and 2002/20/EC on the authorisation of electronic
communications networks and services.

Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal
service and users' rights relating to electronic communications networks, Directive 2002/58/EC concerning the proces-
sing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC)
No 2006/2004 on consumer protection cooperation.

Proposal for a Regulation of the European Parliament and of the Council establishing the European Electronic Commu-
nications Market Authority.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 8 May 2008. The rapporteur was
Mr Hernández Bataller.

At its 445th plenary session, held on 28 and 29 May 2008 (meeting of 29 May 2008), the European
Economic and Social Committee adopted the following opinion by 80 votes and 1 abstention.

1. Conclusions and recommendations

The EESC shares the Commission's goals of enabling
1.1
users to derive maximum benefit from the electronic communi-
cations market, ensuring that there is no distortion or restriction
of competition, encouraging efficient investment in infrastruc-
ture and fostering innovation, promoting efficient use and
management of radio frequencies and numbering resources.

Given the high level of

innovation and
1.2
in the electronic communications
highly dynamic markets
sector, the EESC accepts the regulatory model for the electronic
communications framework and the proposed modifications,
which are based on the following aspects:

technological

with a common set of principles and procedures. The indepen-
dence, day-to-day management and discretion of NRAs are also
strengthened, ensuring that they have their own budgets, suffi-
cient human resources and stronger enforcement powers in
order to improve the implementation of the regulatory frame-
work;

1.2.2
strengthening of the internal market, assigning certain
powers to the Commission for transnational markets that fall
outside the responsibilities of a Member State;

1.2.1
decentralised regulation in the Member States, giving
national authorities the task of overseeing markets in accordance

improvement of

legislative consistency, modernising
1.2.3
specific provisions to bring them into line with technology and
market developments,
including the deletion of a number of
obsolete or redundant provisions;

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1.2.4
the definition of an efficient spectrum management
strategy in order to achieve a Single European Information
Space;

of the technical, social, cultural and political needs of all the
Member States, according to the provisions of national legisla-
tion in accordance with Community law.

1.2.5
in exceptional cases, functional separation, adopted by
to ensure the
to the Commission's approval,
NRAs subject
provision of fully equivalent access products to all downstream
operators,
including the vertically integrated operator's own
downstream divisions;

1.5
The establishment of a European Electronic Communica-
tions Market Authority, as a body which is independent from
the Commission and reinforces the powers of the NRAs, could
be useful, as it would provide the means for effective partner-
ship between the Commission and national regulators for issues
in which EU consistency is required, such as market definitions,
analysis and solutions, the harmonisation of radio spectrum use,
and the definition of cross-border markets.

the achievement of reliable, effective communication
1.2.6
the
over electronic communications networks. To this end,
Authority should contribute to the harmonisation of appro-
priate
security measures by
technical
providing expert advice;

and organisational

2. Introduction

reinforcement of consumer

rights with regard to
1.2.7
certain aspects of contracts,
transparency and publishing of
information, availability of services, information and emergency
services and number portability. However, the proposals do not
attain a high level of consumer protection as set down in the
Treaty on consumer protection, as they do not cover other
aspects such as regulation of customer services, minimum
quality levels, penalty clauses or potential joint procurement of
services and terminals;

2.1
In 2002 a reform of the telecommunications market was
approved, which led to the establishment of a regulatory frame-
work for electronic communications (including all satellite and
terrestrial networks, both fixed and wireless), comprising the
Framework, Access, Authorisation and Universal Service Direc-
tives and the Directive on the Processing of personal data and
the protection of privacy in the sector.

This EU regulatory framework was designed to facilitate
2.2
new operators' access
to existing infrastructure, encourage
investment in alternative infrastructures, and offer consumers
greater choice and lower prices.

greater protection of privacy, although not all

1.2.8
the
proposals are sufficiently ambitious, for example in terms of
spam protection which, the EESC believes, should be unequivo-
cally based on the principle of express prior consent from the
consumer to receive commercial communication.

2.3
The regulatory model for the current framework is based
on the principle of decentralised regulation in the Member
States, giving national authorities the task of overseeing markets
in accordance with a common set of principles and procedures.

electronic

for disabled end-users.

The EESC welcomes the inclusion of terminal equipment
1.3
the regulatory framework, as this will
within the scope of
improve
It also
access
welcomes the establishment of binding measures for disabled
end-users in terms of universal service, improving the accessi-
bility
services,
available
including emergency services, directory enquiry services and
directories, equivalent to that enjoyed by other end-users, along
with other specific measures.

telephone

publicly

of

The framework sets down a minimum level of harmonisa-
2.4
tion, leaving it to the national regulation authorities (NRAs) or
the Member States to define the implementing measures.

2.5
The aim of the regulatory framework is to progressively
reduce ex ante sector-specific rules as competition in the market
develops; this is done by means of a Commission recommenda-
tion identifying the product and service markets in which ex
ante regulatory obligations could be justified.

The simplification and reduction of administrative costs
1.4
is important, and increased flexibility in spectrum management
tasks will facilitate administrative procedures and spectrum use
for operators. The EESC believes that limited technical excep-
tions should exist, along with broader exceptions for the pursuit
interest objectives (to be imposed by the Member
of general
States) in areas such as cultural and linguistic diversity, freedom
of expression and plurality in the media, the promotion of
social and territorial cohesion, and human safety, taking account

2.5.1
The aim of any ex ante regulatory intervention is to
benefit consumers and ensure that retail markets are competi-
tive. The definition of relevant markets can change over time as
the characteristics of products and services evolve and the possi-
bilities for demand and supply substitution change, as pointed
in the Commission Recommendation of 17 December
out
2007 (1).

(1) OJ L 344, 28.12.2007, p. 65.

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3. Commission proposals

f) enables the NRAs to impose functional separation with the

prior agreement of the Commission;

The Commission is proposing a broad revision of the
3.1
European legislation governing electronic
communications
(hereinafter ‘regulatory framework’), through the joint submis-
sion of:

— two proposals for a directive: one amending the Framework,
Access
and the other
amending the Directives on Universal service and on the
Protection of privacy;

and Authorisation Directives,

— a proposal for a Regulation establishing the European Elec-
tronic Communications Market Authority (hereinafter the
‘Authority’).

3.2
In short, these proposals aim to regulate the ‘amended’
European regulatory framework for electronic communications,
bringing it into line with the demands of national regulators,
and operators and consumers of goods and services.

The objective is to establish a consistent ‘amended regula-
3.3
tory framework’ for the digital economy, which makes the most
of the progress achieved from the development of the internal
market. The proposals affect the following:

The proposal amending the Framework, Authorisation

3.4
and Access Directives:

a) ensures, with regard to spectrum management, that Member
interested parties when considering
technology and service
interest objec-

to the principles of
including when pursuing general

shall consult

States
exceptions
neutrality,
tives;

b) increases the consistency of the regulatory framework by
rationalising some procedural elements in the market review
process, including the possibility for the Commission to take
over a market analysis if an NRA is significantly late in
performing its duties;

c) improves network integrity and security by reinforcing
existing obligations, and extends the scope of
integrity
requirements from telephone networks to mobile and IP
networks;

g) establishes a common selection procedure;

h) lastly, strengthens the enforcement powers of

the NRAs,
which are to have the ability to impose specific conditions
for general authorisations in order to ensure accessibility for
disabled users, protect copyright and intellectual property,
and guarantee communications by public authorities in the
event of imminent threats.

3.5
The proposal amending the universal service scheme, the
processing of personal data and protection of privacy and users'
rights in electronic communications and consumer protection
cooperation builds on progress already achieved in the Commis-
sion's legislative approach in the sector.

It is recognised that competition alone is not sufficient
3.5.1
to satisfy the needs of all citizens and protect users' rights;
specific provisions are therefore included which safeguard
universal service, users' rights and the protection of personal
data.

3.5.2
In particular, the proposal aims to improve the trans-
parency of prices and the publication of information for end-
users, by requiring operators to publish comparable, adequate
and up-to-date information in an easily accessible form, and
empowering NRAs to enforce operators' compliance with these
obligations.

3.5.3
Number portability provisions are included, so that
consumers may change provider easily (the maximum time limit
for the effective porting of numbers is set at one working day,
and NRAs are given powers to prevent dissuasive practices by
providers); improvements are made to requirements for informa-
tion regarding the location of callers to the emergency services,
such as the obligation to pass information to emergency autho-
rities.

3.5.4
The ‘possibility’ for Member States to adopt specific
measures in favour of disabled users is replaced by an explicit
‘obligation’ to do so, enabling NRAs to require operators to
publish information of interest to disabled users.

d) strengthens the legal guarantees of

interested parties by
defining various criteria relating to the independence of the
NRAs, and recognises the right of appeal against NRA deci-
sions and the possibility of suspending measures adopted by
them in order to prevent serious and irreparable harm, in
urgent cases;

3.5.5 Moreover, NRAs will have powers to prevent the degra-
dation of service quality by setting minimum quality levels for
network transmission services for end-users, and will be able to
monitor retail tariffs if no undertakings are designated as a
universal service provider.

requirements

e) caters for the needs of vulnerable groups, by including tech-
to
nical
improve e-accessibility for disabled persons, and updating
NRAs' objectives regarding older users and users with social
needs;

terminal equipment

in order

for

3.5.6
Steps will also be taken to ensure that end-users are
notified about breaches of security resulting in their personal
data being lost or otherwise compromised, and are informed
about precautions that they may take in order to minimise the
resulting damage.

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3.5.7
In line with this, use of ‘spyware’ and other malicious
software is prohibited, regardless of the method used for its
installation on a user's equipment; the fight against unsolicited
commercial communications in Europe is reinforced with the
provision for Internet Service Providers to take legal action
against spammers.

Lastly, it is worth pointing out the proposal to create an
3.6
‘Authority’, accountable to the European Parliament, which will
include a board of regulators comprising the heads of the NRAs
of all EU Member States and will replace the European Regula-
tors Group (ERG) (2).

strengthen the rights of the users of electronic communication
services, and the procedural and administrative guarantees for
operators to ensure that these provisions are properly imple-
mented (right of affected parties to be heard, reasons for deci-
sions, precautionary measures and right of appeal). The intro-
duction of these guarantees complies with the ‘right
to good
administration’ stipulated in Article 41 of the Charter on Funda-
mental Rights.

The EESC especially welcomes the fact that the proposals
it had made in previous

requests

that

4.4
take into account
opinions, regarding:

3.6.1
This Authority will advise the Commission on the
adoption of certain decisions, act as a centre of expertise for
electronic communication networks and services at EU level,
and take over the functions of the European Network and Infor-
mation Security Agency (ENISA).

— the requirement that Member States adopt specific measures
to help disabled users (4), in order to meet the objectives of
the European Charter on Fundamental Rights and the
United Nations Convention on the Rights of the Persons
with Disabilities;

4. General comments

4.1
The EESC welcomes the Commission's proposals in that
they aim to respond to the need for regulation and management
of the pan-European electronic communications market.

4.1.1
The EESC endorses the Commission's goal of further
opening up the telecommunications markets to competition and
boosting investment in high-speed networks (including all fixed,
mobile and satellite technologies (3)), and its aim of furthering
things and the
the Internet of
the future (the Internet of
semantic web) and optimised spectrum management
in the
internal market, also in the context of audiovisual service digiti-
sation. This is in the common interests of consumers and busi-
nesses which need access to high performance telecommunica-
tions networks and services.

4.1.2
The EESC notes that, under the current regulations, the
regulatory framework in the telecommunications sector has
made it possible to:

— make substantial progress towards more open, dynamic
markets, as pointed out by the Commission in its 12th
Report on the Implementation of the Telecommunications
Regulatory Package;

— combat the severe inequalities between operators, which are
the legacy of the advantages enjoyed by the old State mono-
polies.

The EESC also considers it positive that the regulatory
4.2
scheme set down in the proposals is extended to the field of
electronic communications and, therefore, to all the transmis-
sion and service provision networks that this comprises.

4.3
In addition to the improvement of the purely technical
and management aspects mentioned above, the Committee also
welcomes the wide range of provisions which specifically aim to

— general spectrum management principles (as the spectrum is
interest and should be managed from an
of public
economic, social and environmental perspective) which, in
addition to neutrality in terms of technology and service,
should ensure cultural and linguistic diversity, freedom of
expression and plurality in the media, and reflect the tech-
nical, social, cultural and political needs of all the Member
States (5).

4.4.1
Preserving cultural and linguistic diversity also means
letters which contain diacritical
ensuring that alphabetical
marks, as well as Cyrillic, Greek and any other characters,
appear in legible form in emails. Sending mobile phone text
messages containing such letters should not be more expensive.

The EESC also endorses the Commission's proposals

4.5
regarding, in particular:

a) the simplification of market analysis procedures which
streamlines the administrative burden for NRAs and reduces
administrative costs for operators;

b) the improvement of network security and integrity, guaran-

teeing reliable use of electronic communications;

c) reinforcement of the independence of NRAs by limiting the
possible influence of other public bodies on the NRAs' day-
to-day management, and ensuring that they have their own
independent budget and sufficient human resources.

5. Specific comments

As the purpose of the Commission proposals is, firstly,
5.1
to adopt measures for the approximation of national legislation
in the field of electronic communications and, secondly,
to
create a new supranational body, the EESC wishes to emphasise
that the proposals are based exclusively on Article 95 TEC.

(2) Established by Commission Decision 2002/627/EC of 29/07/2002, as
last amended by Commission Decision 2004/641/EC of 6.12.2007, OJ
L 323, 8.12.2007, p. 43.

(3) See opinion OJ C 44, 16.2.2008, p. 60, rapporteur: Mr Retureau.

(4) Exploratory Opinion on ‘The Future of eAccessibility’ OJ C 175,

27.7.2007, p. 91-95.

(5) Opinion OJ C 151, 17.6.2008, p. 25.

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5.1.1 While this provision may well be an appropriate, suffi-
cient basis for the objectives pursued (6), according to the case
law of the European Court of Justice, the Commission will have
to ensure that the measures adopted actually have an impact on
internal laws (enabling them to be amended) and exhaustively
regulate at supranational
level all those aspects which should
benefit consumers and users of electronic communications,
along with the aspects relating to the legal and procedural guar-
antees established in the proposals (7).

5.1.2
In short, the adoption of the future supranational regu-
latory framework in this field should not become a simple
the current supranational regulatory
cosmetic reworking of
framework in the electronic communications sector.

5.1.3
The above also applies to the creation of the Authority,
whose existence is fully justified insofar as it is able to help to
consistently, efficiently implement the wide range of provisions
proposed and for which it is responsible by virtue of the specific
powers assigned to it.

5.1.4
ciple of subsidiarity, as the current cooperation system:

The creation of this Authority complies with the prin-

a) lacks structure and efficient mechanisms, and fragments the

internal market;

b) does not guarantee equal conditions between operators

established in different Member States; and

c) prevents the benefits that competition and cross-border

services would bring the consumer.

5.1.5
It also complies with the proportionality principle, as it
will make it possible to establish an effective partnership
between the Commission and the National Regulators on issues
where European consistency is needed.

5.3.1
The EESC endorses the regulatory framework's aim to
progressively reduce ex ante sector-specific rules as competition
in the market develops, as the Commission has been gradually
for instance in its recommendation of 17 December
doing,
2007. The EESC hopes that, given the dynamism of the elec-
tronic communications market, the characteristics of products
and services and the possibilities for substitution will evolve in
such a way as to make such intervention measures unnecessary.

The EESC believes that

is an
5.3.2
exceptional measure that should be applied sparingly. It should
only be imposed by the NRA, subject to the prior approval of
the Commission, which should request an opinion from the
new Authority.

‘functional separation’

5.3.3
This type of solution may be justified as a remedy
where there has been persistent failure to achieve effective non-
discrimination in several of the markets concerned, and where
there is little or no prospect of
infrastructure competition
within a reasonable timeframe after recourse to one or more
remedies previously considered to be appropriate.

However, the specific provisions proposed for this sector
5.4
do not cover certain significant issues affecting the efficient,
transparent implementation of free competition between opera-
tors and service providers in the pan-European market, or
certain substantive aspects of user rights.

The Authority should serve as the exclusive forum for
5.2
cooperation between NRAs in the exercise of the full range of
their responsibilities under the regulatory framework.

Firstly,

the scope of
there should be clarification of
5.5
‘national security’ for which, according to Article 3a(2) TEU, as
amended by the Lisbon Treaty, Member States have ‘sole respon-
sibility’ to safeguard.

The EESC is awaiting the forthcoming assessment of
5.2.1
the operation of the Authority,
in order to ensure that it is
based on transparency, accountability and independence, and
that the powers of the NRAs have been strengthened by giving
them a robust and transparent foundation in Community law.

the regulation of

5.3 With regard to the legislative approach of the regulatory
framework proposed, it is important to recognise the benefits of
applying specific criteria for
the sector,
together with the principles and rules of free competition within
the internal market (8). This applies particularly to the sector in
question, which requires ex ante administrative interventions
involving sophisticated economic analyses of
the relevant
market, which are not necessary in other sectors of the internal
market (9).

(6) ECJ judgment of 2.5.2006, case C-436/03.
(7) Ibid. Legal background, points 44 and 45.
(8) See A. Bavasso,

‘Electronics Communications: A New Paradigm for

European Regulation’, CML Rev. 41, 2004, p. 110 et seq.

(9) A De Streel, 'The Integration of Competition Law Principles in the New
European Regulatory Framework for Electronics Communications',
World Competition, 26, 2003, p. 497.

5.5.1
Recognising non-regulated powers would allow for
considerable discretion when establishing causes and measures
which, for national security reasons, could result in exceptions
to the application of the sectoral and competition law rules and
principles embodied in the Commission proposals.

5.5.2
National regulations currently exist in the electronic
communications sector which leave it to the Member States to
identify the telecommunications networks, services, facilities and
equipment which carry out activities essential
to national
defence and public security (10). In this context, the EESC points
out that the practice followed for the Galileo project could serve
as a useful reference.

(10) For a more detailed analysis of these issues, see Carlos J. Moreiro
González, Las cláusulas de Seguridad Nacional, Iustel, 2007, pp. 26-31
and 53-64.

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5.6
In order to preserve social, economic and territorial
cohesion when setting up the new network infrastructures,
particularly the ‘new generation networks’, public authorities
need to promote economic and social progress and a high level
of employment, in line with Community law and democratic
principles, in order to create a high-tech electronic communica-
tions market.

5.6.1
Intervention measures must, with public funding, espe-
cially from local authorities, serve to boost the future rollout of
new-generation networks, ensuring that there is no impact on
technological neutrality, and that, in line with the proportion-
ality principle, unnecessary duplication of network resources is
avoided.

it will

5.7 With regard to the effect on user rights of the proposed
regulatory framework,
in some cases be necessary to
specifically analyse the protection of access rights for services of
general economic interest (11) (which, as well as being recog-
nised as a fundamental right in Article 36 of the EU Charter of
Fundamental Rights, will be regulated through Article 16 TEU
and a protocol (No 9) appended to the Treaties), and the protec-
tion of free competition, which will not be listed as a specific
objective of the EU in Article 3 of the Lisbon Treaty, but will be
the subject of an ad hoc regulation following the Protocol on the
internal market and competition appended to the Treaties.

5.7.1
Although the EESC welcomes the fact that the proposal
on universal service establishes a consultation mechanism in
Member States ensuring that due consideration is given in the
decision-making process to consumer interests,
it regrets that
none of
the provisions refers to the role of organised civil
society when it comes to consultation and participation in the
process of adoption by the competent supranational bodies, in
to select suitable measures which guarantee effective
order
implementation in the EU.

5.7.2 With regard to the physical aspects of universal service,
the EESC is waiting for the Commission's proposal on the
subject, to be issued this year, before stating its position defini-
tively. Provisionally, the EESC reiterates (12) the main principles
that it considers applicable:

d) fair and non-discriminatory contribution by all telecommuni-
to maintaining and advancing

service providers

cations
universal service;

e) the existence of specific, predictable and adequate mechan-
isms guaranteeing that universal service is maintained and
extended, in line with technology and social developments;

f) any additional principles deemed necessary by the NRAs to

protect the public interest;

g) the creation of a telecommunications forum or observatory
at Community level,
the
opinions of all economic and social players and other civil
society organisations.

in order to take into account

5.7.3
the following aspects:

In terms of universal service, the Directive should cover

a) the need for the regulation of customer services provided by
operators, including the possibility of imposing quality levels
on customer service, when service begins to deteriorate;

b) the definition of penalty clauses, so as to provide greater

legal certainty;

c) contract amendments;

d) minimum quality levels for certain aspects, empowering
NRAs to impose minimum quality levels for all services if
they so desire;

e) detailed invoicing and improved pricing services, ensuring
that invoices include a breakdown of any non-electronic-
communication services;

f) joint procurement of services and terminals, which should be

subject to more transparent contractual arrangements.

The increase in consumer protection provided for in
5.7.4
the universal service proposal does not fully guarantee consu-
mers a high level of protection as required by Article 153 TEC,
since the proposal does not, as a general principle, give subscri-
bers the right to withdraw at any time, without penalty, from
contracts with electronic communications network or service
providers.

a) access to high-quality services at fair, appropriate and afford-

able prices;

5.7.5
tion is improved, such as:

However, there are some aspects for which this protec-

b) rapid public broadband access to information and advanced

telecommunications services in all regions;

— pricing information, with transparent, updated or compar-
able rates and information on the type of services provided;

c) access for all consumers,

irrespective of their income and

geographical location, with the right to price equalisation;

(11) See opinions CESE 267/2008 (adopted on 14.2.2008), rapporteur: Mr

Hencks.

— the reform of Regulation No 2006/2004 which makes inter-
national cooperation possible, in order to prevent undesir-
able practices such as
‘cyberstalking’ and
‘spoofing’.

‘phishing’ (13),

(12) EESC opinion adopted at the Plenary Session on 28 February and 1

(13) A type of fraud that involves falsely obtaining a person's bank details

March 2001. OJ C 139, 11.5.2001, p. 15.

in order to access their account and divert the funds.

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5.8 When it comes to the privacy of electronic communica-
tions, the EESC considers that the proposal is a step forward
from existing legislation, and calls on the Commission to
strengthen the confidentiality of communications made via
public communications networks and publicly available elec-
tronic communications services, and of related traffic data, in
accordance with the criteria stipulated in ECJ case law (14).

5.8.1
The EESC endorses strengthening the regulation of
fundamental rights relating to electronic communications, such
as the protection of privacy, protection of personal data, secrecy
of communications and confidentiality, and certain commercial
aspects relating to intellectual property.

5.8.2 When it comes to security (15), the relevant measures
should be adopted to guarantee network security (16) and the

use of sufficiently robust encrypted material, so as to strengthen
the protection of privacy.

The EESC considers it positive that

the protection
5.8.3
afforded by this directive also applies to public communications
networks supporting data collection and identification devices
(including contactless devices such as Radio Frequency Identifi-
cation Devices) (17).

5.9 With regard to unsolicited commercial communications
(spam), the EESC reiterates (18) its belief that legislation should
be unequivocally based on the principle of
the consumer's
express prior consent: it is the consumer's interests that should
prevail in order to prevent unwanted commercial communica-
tions. Therefore, all necessary steps should be taken in order to
guarantee that this principle is obeyed, establishing, where rele-
vant, effective, proportionate, dissuasive penalties.

Brussels, 29 May 2008.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(14) In particular, see the ECJ ruling of 29 January 2008 (case C-275/06).
(15) The EESC is drawing up opinion (INT/417) DT R/CESE 80/2008 on

Combating fraud and counterfeiting of non-cash means of payment.

(17) See opinion on ‘Radio Frequency Identification (RFID)’, rapporteur: Mr

Morgan, JO C 256 of 27.10.2007, p. 66.

(16) See opinion on ‘Network and information security’, rapporteur: Mr

(18) Opinion adopted at the Plenary Session on 24 and 25 January 2001.

Retureau, JO C 48 of 21.2.2002, p. 20.

OJ C 123, 25.4.2001, p. 53.