European Parliament resolution of 24 October 2013 on Implementation report on the regulatory framework for electronic communications (2013/2080(INI))
Date: 2013-10-24
Institutions: Committee on Industry, Research and Energy, Committee on the Internal Market and Consumer Protection, European Parliament
Subjects: Internet, application of EU law, approximation of laws, competition law, data transmission, electronic mail, regulation of telecommunications, single market








C_2016208EN.01017001.xml










10.6.2016   


EN


Official Journal of the European Union


C 208/170





P7_TA(2013)0454
Implementation report on the regulatory framework for electronic communications
European Parliament resolution of 24 October 2013 on Implementation report on the regulatory framework for electronic communications (2013/2080(INI))
(2016/C 208/16)

The European Parliament,






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having regard to Directive 2009/140/EC (Better Regulation Directive),










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having regard to Directive 2009/136/EC (Citizens’ Rights Directive),










—


having regard to Regulation (EC) No 1211/2009 (BEREC Regulation),










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having regard to Directive 2002/21/EC (Framework Directive),










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having regard to Directive 2002/20/EC (Authorisation Directive),










—


having regard to Directive 2002/19/EC (Access Directive),










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having regard to Directive 2002/22/EC (Universal Service Directive),










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having regard to Directive 2002/58/EC (Directive on privacy and electronic communications),










—


having regard to Regulation (EU) No 531/2012 (recast Roaming Regulation),










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having regard to Recommendation 2010/572/EU (Recommendation on regulated access to Next Generation Access Networks),










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having regard to Recommendation 2007/879/EC (Recommendation on relevant markets),










—


having regard to Recommendation 2009/396/EC (Recommendation on termination rates),










—


having regard to COM 2002/C 165/03 (SMP Guidelines),










—


having regard to Recommendation 2008/850/EC (Rules of procedure in Article 7 of the Framework Directive),










—


having regard to Decision No 243/2012/EU establishing a multiannual radio spectrum policy programme (RSPP),










—


having regard to the proposal of 19 October 2011 for a Regulation of the European Parliament and of the Council establishing the Connecting Europe Facility (COM(2011)0665),










—


having regard to the proposal of 7 February 2013 for a Directive of the European Parliament and of the Council concerning measures to ensure a high common level of network and information security (COM(2013)0048),










—


having regard to the recent work done by the Body of European Regulators for Electronic Communications (BEREC) on net neutrality,










—


having regard to the proposal of 26 March 2013 for a Regulation of the European Parliament and of the Council on measures to reduce the cost of deploying high-speed electronic communications networks (COM(2013)0147),










—


having regard to Rule 48 of its Rules of Procedure,










—


having regard to the report of the Committee on Industry, Research and Energy and the opinion of the Committee on the Internal Market and Consumer Protection (A7-0313/2013),










A.


whereas the regulatory framework for electronic communications in the Union was last amended in 2009, on the basis of proposals presented in 2007 and following years of preparatory work;










B.


whereas transposition of the 2009 amendments in the Member States was due by 25 May 2011 and was completed in the last Member State in January 2013;










C.


whereas there is a margin of interpretation for each National Regulatory Authority (NRA) in the way it implements the framework, so that the evaluation of the framework’s efficiency canalso take account of the conditions under which the framework is implemented in the Member States;










D.


whereas the differences in enforcement and implementation of the regulatory framework have led to higher costs for operators active in more than one country, thereby hindering investment and the development of a single market for telecoms;










E.


whereas the Commission has not made use of the possibility of adopting a decision identifying transnational markets as specified in Article 15(4) of the Framework Directive (FD);










F.


Whereas pan-European business users have not been recognised as a separate market segment, resulting in a lack of standardised wholesale offers, unnecessary costs and a fragmented internal market;










G.


whereas the aims of the framework are to promote an ecosystem of competition, investment and innovation that contributes to the development of the internal market in communications to the benefit of consumers and enterprises — and in particular European enterprises — in that sector;










H.


whereas the regulatory framework should be maintained as a coherent whole;










I.


whereas, in line with better regulation principles, the Commission is obliged to periodically review the framework in order to ensure that it keeps pace with technological and market developments;










J.


whereas, rather than building on the regulatory framework, the Commission has engaged in a parallel trail of individual initiatives, with the ‘single digital market’ as the latest avatar;










K.


whereas the Commission has declared its intention to review the Directive on privacy and electronic communications and the recommendation on relevant markets, but not yet the other parts of the regulatory framework;










L.


whereas the Commission has not updated the universal service obligations since 1998, despite the request included in the 2009 Citizens’ Rights Directive;










M.


whereas a relevant, stable and consistent framework is essential to promote investment, innovation and competition and hence services of better quality;










N.


whereas a collective NRA-based bottom-up approach has proven to be effective in promoting common regulatory case-law;










O.


whereas functional separation, i.e. the obligation of a vertically integrated operator to place the activities related to the wholesale provision of relevant access products in an independently operating internal business unit, remains a remedy of last resort;










P.


whereas effective and sustainable competition is an important driver of efficient investment over time;










Q.


whereas the regulatory framework has promoted competition in the provision of electronic communications networks and services, to the benefit of consumers;










R.


whereas the promotion of competition in the provision of electronic communications networks and services, along with the promotion of investment, are key policy objectives laid down in Article 8 of the FD;










S.


whereas despite the progress being made, the EU is only taking small steps towards achieving the Digital Agenda's broadband objectives within the targeted timeframe;










T.


whereas the rollout of high-speed broadband internet access has been gradual (54 % of European households now have access to speeds of over 30 Mbps), but European consumers have been slow to adopt this type of access (only 4,2 % of households); whereas the rollout of ultrafast internet access (over 100 Mbps) has been slow, representing only 3,4 % of all fixed lines, and user demand appears weak, with only about 2 % of households subscribing to such lines (1);










U.


whereas transparency in network traffic management is insufficient in itself to ensure net neutrality;










V.


whereas issues regarding competition both between electronic communications services providers and between them and information society services providers deserve attention, in particular threats to the open character of the internet;










W.


whereas obstructions to competition continue to be present on many networks; having regard to the failure to define and apply a principle of net neutrality to ensure non-discrimination of services for end-users;










X.


whereas 4G deployment in Europe has been hindered by a lack of sufficient coordination in radio spectrum allocations, in particular the delay by Member States in carrying out the authorisation process in order to allow use of the 800 MHz band for electronic communications services by 1 January 2013, as stipulated by the Radio Spectrum Policy Programme (RSPP);










Y.


whereas the RSPP has called on the Commission to review the use of the spectrum between 400 MHz and 6 GHz and assess whether additional spectrum could be freed and made available for new applications, such as, though not exclusively, the 700 Mhz band;










Z.


whereas innovation and the development of new technologies and infrastructures should be taken into consideration when assessing the impact of the legal framework on the options offered to users and consumers;










AA.


whereas the framework should remain neutral, and the same rules should apply to equivalent services;












1.


Regrets the delay by Member States in transposing the 2009 changes to the regulatory framework for electronic communications, and draws attention to the fragmentation of the internal market in communications caused by the varying implementation of that framework in the 28 Member States;












2.


Underlines the fact that while the framework has made substantial progress towards achieving its aims, the EU telecoms market remains fragmented along national borders, making it difficult for businesses and citizens to fully benefit from a single market;












3.


Considers that only by having a competitive European market in high-speed broadband services can innovation, economic growth and job creation be stimulated and competitive prices offered to end users;












4.


Considers that the next review should aim at a further evolution of the framework, with a view to addressing any weaknesses and taking account of market, social and technological developments and future trends;












5.


Considers that the aspects to be considered in a review of the entire regulatory framework should include:






(i)


the overdue review of the universal service obligation, including the obligation to offer broadband internet access at a fair price in response to the urgent need to reduce the digital divide, and in doing so mitigate the constraints imposed by state aid guidelines;










(ii)


the competence of NRAs for all issues, including spectrum, that are addressed by the framework; the powers granted to the NRAs in the Member States and the scope of the NRA independence requirement, accordingly;










(iii)


cooperation between the NRAs and national competition authorities;










(iv)


the symmetric obligations relating to network access (Article 12 FD), since in certain Member States such regulatory powers were not given to NRAs;










(v)


the rules on leverage effects (Article 14 FD) and joint dominance (Annex II FD), since despite the 2009 amendments the NRAs still find those tools difficult to use;










(vi)


the market review processes;










(vii)


the impact of services that are fully substitutable to those provided by traditional providers; in certain cases clarifications regarding the reach of the framework’s technological neutrality would be needed, as would clarifications on the dichotomy between services in the ‘information society’ bracket and those in the ‘electronic communications’ bracket;










(viii)


the necessity of abolishing redundant regulation;










(ix)


the lifting of regulation where a market analysis has shown the market concerned to be truly competitive and that ways and means exist for extended monitoring;










(x)


giving NRAs the opportunity to report on their experience with non-discrimination obligations and remedies;










(xi)


the effectiveness and workings of the Article 7/7a procedures (‘co-regulation’): while overall both the Commission and BEREC agree that they work well, allowing for a proper balancing, the former argues that in some cases NRAs did not adjust all their regulatory measures, or were slow to adapt them, and the latter complain of tight time constraints;










(xii)


the situation where phase II of the procedure is not triggered due to an NRA withdrawing its draft measure or where an NRA does not propose a remedy to a problem recognised on a certain market, in which case the only solution is an infringement procedure: for both such cases, a way to trigger a proper Article 7/7a procedure should exist;










(xiii)


the effectiveness and workings of the Article 19 procedure: the Commission used its Article 19 powers twice (the NGA recommendation in September 2010, and the recommendation on non-discrimination and costing methodologies); since unlike for Article 7/7a there is no timeframe for the Article 19 procedure, the regulatory dialogue between BEREC and the Commission was less smooth, leading to complaints from BEREC that its opinion was requested at very short notice, and from the Commission that certain NRAs were reluctant in the drafting and implementation period;










(xiv)


pan-European services and operators, taking into account the (unused) provision of Article 15(4) of the FD allowing the Commission to identify transnational markets; more focus should be given to the competitive provision of communications services to EU businesses and to the effective and consistent application of business grade remedies across the EU;










(xv)


identification of transnational markets, as a first step at least with respect to business services; enabling providers to notify BEREC that they intend to serve such markets, and supervision of providers serving such markets by BEREC;










(xvi)


BEREC and its functioning as well as the extension of the scope of its competences;










(xvii)


freedom of access to content for all, following Article 1(3a) of the Framework Directive, and net neutrality building on Article 8(4)(g) of the Framework Directive;










(xviii)


the recommendation on relevant markets;










(xix)


the regulation of equipment, including bundling of equipment and operating systems;










(xx)


recent global developments in cybersecurity and cyberespionage and the expectations of European citizens regarding respect of their privacy when using electronic communications and information society services, and










(xxi)


the fact that the internet has become a crucial infrastructure for conducting a wide array of economic and social activities;
















6.


Considers that the main goals of the review should include:






(i)


ensuring that fully substitutable services are subject to the same rules; to this end the definition of electronic communications services in Article 2(c) of the FD should be taken into consideration;










(ii)


ensuring that consumers have access to comprehensive and comprehensible information on internet connection speeds to enable them to compare the services offered by different operators;










(iii)


further promoting effective and sustainable competition, which is the main driver of efficient investment over time;










(iv)


increasing competition on the European high-speed broadband market;










(v)


providing a stable and sustainable framework for investment;










(vi)


ensuring harmonised, consistent and effective application;










(vii)


facilitating the development of pan-European providers and the provision of cross-border business services;










(viii)


ensuring that the framework is fit for the digital age and delivers an internet ecosystem that support the entire economy, and










(ix)


increasing user confidence in the internal market in communications, including through measures to implement the future regulatory framework for the protection of personal data and measures to increase the security of electronic communications on the internal market;
















7.


Believes that the overall aim of the framework should continue to be the promotion of a sectoral ecosystem of competition and investment which benefits consumers and users, while encouraging the creation of a true internal market in communications and promoting the global competitiveness of the Union;












8.


Underlines that the regulatory framework must remain coherent, relevant and effective;












9.


Believes that the framework must serve to maintain consistency and provide regulatory certainty so as to ensure fair and balanced competition in which European players stand every chance; considers that all the provisions proposed by the Commission, including a single European authorisation, consumer aspects and technical arrangements for spectrum auctions, could play an important role with a view to creating a single market for communications, but that they need to be assessed in the light of that objective; considers that the procedure for the review of the framework as called for herein must be viewed as a step forward for the Union's digital economy and should hence be addressed by means of a cohesive and planned approach;












10.


Stresses that non-discrimination of information in the sending, transmitting and receiving phase is necessary for encouraging innovation and eliminating entry barriers;












11.


Emphasises that there is a potential for anti-competitive and discriminative behaviour in traffic management; calls, therefore, on the Member States to prevent any violation of net neutrality;












12.


Notes that the provisions allowing N RAs to intervene to mandate service quality in the event of anti-competitive service blocking or restrictions, combined with better contract transparency, are powerful tools to ensure that consumers have access to and use of the services they choose;












13.


Stresses that end-to-end quality of service prioritisation alongside best effort delivery could undermine the principle of net neutrality; calls on the Commission and the regulators to monitor these trends and, if appropriate, to deploy the quality of service obligation tools set out in Article 22 of the Universal Service and Users Rights Directive; calls for the consideration, if necessary, of additional legislative measures at EU level;












14.


Stresses that in order to stimulate innovation, increase consumer choice, reduce costs and increase efficiency in the deployment of the high-speed electronic communication infrastructure, a mix of different measures and all available technologies should be explored and offered to consumers, so as to prevent the deterioration of service, the blocking of access and the slowing of traffic over networks;












15.


Emphasises that the competent national authorities should aim to apply regulatory principles, procedures and conditions for spectrum usage which do not impede European electronic communications providers from providing networks and services in several Member States or across the Union;












16.


Is convinced that increased spectrum coordination combined with the application of common principles for spectrum use rights across the Union would constitute a key remedy for tackling the problem of lack of predictability regarding spectrum availability, thus encouraging investment and economies of scale;












17.


Stresses that incentive payments and/or the revoking of right of use in case of failure to use relevant radio spectrum could be important measures to free up sufficient harmonised radio spectrum in order to stimulate high-capacity wireless broadband services;












18.


Emphasises that a pan-European auctioning of 4G and 5G wireless services, with a limited number of licensees collectively serving the whole territory of the EU, would enable pan-European wireless services, eroding the bases upon which roaming is built;












19.


Calls on the Member States to give the consumer aspects of electronic communications a much higher priority; emphasises that well-functioning markets, with well-informed and confident consumers, are the backbone of the EU market as a whole;












20.


Stresses that since consumers are increasingly choosing bundled contracts covering multiple services, it is particularly important that pre-contractual and existing contract update information requirements are strictly enforced;












21.


Stresses the importance of enhanced consumer information requirements regarding service restrictions, device subsidies and traffic management; calls on the Member States and the Commission to ensure consistent enforcement of the ban on misleading advertising;












22.


Emphasises that bundling of content can be a barrier to switching, and asks the Commission and BEREC to look at the potential anti-competitive aspects involved in this regard;












23.


Notes that there are cases where carriers have restricted the tethering functionality (whereby a mobile phone can be used as a router/hotspot) of consumers' mobile phones even though the consumer contract specifies unlimited data usage; asks the Commission and BEREC, therefore, to look into the issue of potentially misleading advertising in the light of the need for increased clarity in this regard;












24.


Notes the importance of switching, ease of number portability in a dynamic market, contract transparency and provision of information to consumers regarding contract changes; regrets the fact that portability targets are not being met, and calls for action by the Commission and BEREC;












25.


Supports those Member States which have implemented reinforced requirements for equivalent access for disabled users, and calls on all Member States to follow their example; calls on BEREC to improve the promotion of provisions and access for disabled users;












26.


Commends all Member States for the implementation of the 112 common emergency telephone number; calls for improvements regarding caller location response time; notes that several Member States have already configured technologies that provide near-instant caller location;












27.


Welcomes the Commission’s work on the practical implementation of the 116 numbers, especially the missing child hotline (116 000); calls for better promotion of these numbers by the Commission;












28.


Notes that the Commission has abandoned its ambitions for a pan-European telephone numbering system;












29.


Emphasises the significant progress made in providing entry-level universal broadband access, while noting that it has been very uneven; encourages the Member States to meet the digital agenda targets by stimulating private and deploying public investment in new network capacity;












30.


Emphasises that increasing data volume, limited availability of spectrum resources and the convergence of technologies, equipment and content require intelligent data traffic management and different methods of dissemination, such as cooperation between digital terrestrial broadcasting and wireless broadband networks;












31.


Stresses that a review must be based on broad consultations with all interested parties and a thorough analysis of all issues;












32.


Calls on the Commission, therefore, to initiate the next review of the entire framework, in order to allow a proper debate during the next parliamentary term;












33.


Instructs its President to forward this resolution to the Council and the Commission.






(1)  SWD(2013)0217 — Digital agenda scoreboard, p. 43.