COMMISSION STAFF WORKING DOCUMENT Evaluation of the regulatory framework for electronic communications Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the European Electronic Communications Code (Recast)
Date: 2016-09-14
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: consumer protection, information technology, provision of services, regulation of telecommunications, single market, trans-European network, transmission network, universal service

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 14.9.2016  SWD(2016) 313 final   COMMISSION STAFF WORKING DOCUMENT Evaluation of the regulatory framework for electronic communications Accompanying the document Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the European Electronic Communications Code (Recast) {COM(2016) 590} {SWD(2016) 305}  
 
 
Table of contents  

1. EXECUTIVE SUMMARY ........................................................................................... 4 
2. INTRODUCTION ......................................................................................................... 7 
2.1. Purpose ................................................................................................................. 7 
2.2. Scope .................................................................................................................... 7 
3. BACKGROUND TO THE INITIATIVE ................................................................... 8 
3.1. General description of the regulatory framework and its objectives ................... 8 
3.2.  Baseline ........................................................................................................... 17 
4. EVALUATION QUESTIONS ................................................................................... 18 
5. METHOD ..................................................................................................................... 20 
6.  STATE  OF  PLAY:  IMPLEMENTATION  &  EVOLUTION  OF  THE 

SECTOR .................................................................................................................. 23 
6.1. Implementation of the regulatory framework .................................................... 23 
6.2. Evolution of the Sector ....................................................................................... 24 
7. ANSWERS TO THE EVALUATION QUESTIONS .............................................. 31 
7.1. Relevance ........................................................................................................... 31 
7.1.1. Relevance of the current objectives of the regulatory framework ........ 31 
7.1.2. Relevance of regulation areas ................................................................ 35 
7.1.3. Continued relevance of the current objectives against new needs ........ 41 
7.2. Effectiveness ...................................................................................................... 42 
7.2.1. Achievement of the general objective of the regulatory framework ..... 42 
7.2.2. Achievement of the specific objectives of the regulatory framework... 44 
7.2.3.  Contribution  of  specific  regulation  areas  to  the  objectives  of  the 

regulatory framework ........................................................................ 51 
7.3. Efficiency ........................................................................................................... 91 
7.3.1. General remarks .................................................................................... 91 
7.3.2. Efficiency of regulatory areas ............................................................... 94 
7.4. EU added value ................................................................................................ 105 
7.5. Coherence ......................................................................................................... 108 
7.5.1. Internal coherence ............................................................................... 108 
7.5.2. External coherence .............................................................................. 110 
8. CONCLUSIONS ........................................................................................................ 113 
9. LIST OF ANNEXES ................................................................................................. 117 
9.1. Annex I     Procedural information ................................................................... 118 
9.2. Annex II    Results of the public consultation .................................................. 121 
9.3. Annex III  Methodology of the support studies ............................................... 145 
9.4. Annex IV  Legislation covered and correspondence tables ............................. 156 
9.5. Annex V   Screening of the Directives  ............................................................ 160 
Screening of the Framework Directive (2002/21/EC) .................................. 160 
Screening of the Authorisation Directive [(2002/20/EC)] ............................ 166 
Screening of the Access Directive (2002/19/EC).......................................... 174 
Screening of the Universal Service Directive [(2002/22/EC)] ...................... 180 
9.6. Annex VI  Screening of the BEREC Regulation ............................................. 191 
9.7. Annex VII The implementation of the RSPP & of the RSD ............................ 199 

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Table of Figures:  

Figure 1 Intervention logic summary ....................................................................................... 11 
Figure 2 Fixed broadband subscriptions – operator market shares at EU level, January 2006 – 
July 2015 .................................................................................................................................. 25 
Figure 3 Fixed broadband subscriptions – operator market shares, July 2015 ........................ 25 
Figure 4 Mobile broadband penetration at EU level, January 2009-July 2015 ........................ 27 
Figure 5 Broadband retail prices, standalone offers ................................................................. 28 
Figure 6 Broadband retail prices – bundles including broadband, fixed telephony and tv ...... 29 
Figure 7  Decrease of fixed broadband market share of incumbent operators ......................... 34 
Figure 8 OECD wireless broadband take-up (subscriptions/100 people) ................................ 42 
Figure 9 NGA performance global comparisons end 2014 ...................................................... 42 
Figure  10  Fixed  broadband  subscriptions  –  technology  market  shares  at  EU  level,  January 
2009-July 2015 ......................................................................................................................... 44 
Figure 11 Fixed broadband subscriptions – technology market shares at EU level, July 201545 
Figure 12 Share of different NGA technologies in total NGA subscriptions at EU level, July 
2015 .......................................................................................................................................... 45 
Figure  13  Fixed  broadband  subscriptions  -  operator  market  shares  at  EU  level  (%  of 
subscriptions), January 2006 to July 2015 ............................................................................... 46 
Figure 14 Local Loop Unbundling monthly average total cost (EUR) at EU level,  2005-2015
 .................................................................................................................................................. 46 
Figure 15 Household penetration of Cable TV, July 2014 ...................................................... 48 
Figure 16 Next generation access (FTTP, VDSL and Docsis 3.0 cable) coverage, June 2015 52 
Figure 17 Fibre to the premises (FTTP) coverage, June 2015 ................................................. 53 
Figure 18 Fixed broadband subscriptions by headline speed,  July 2015 ................................ 53 
Figure 19 Average spectrum assigned for wireless broadband in EU28 ................................. 60 
Figure 20 Timing of 800MHz spectrum awards ...................................................................... 60 
Figure 21 Summary of tasks: access regimes for network investment .................................. 145 
Figure 22 Types of business model in relation to regulatory approach ................................. 146 
Figure 23 Assessing regulatory models – analytical steps ..................................................... 147 
Figure 24 Sequence and structure of tasks in the project ....................................................... 147 
Figure 25 Assigned spectrum in harmonised EU band per Member State ............................ 201 

Table of Tables:  

Table 1 - Assignment and derogations of the 800 MHz harmonised band ............................ 203 
Table 2 — General spectrum policy (programme, definition and inventory) ........................ 205 
Table 3 — Electronic communications services (including wireless broadband) ................. 205 
Table 4 - Devices and equipment (including machine to machine) ....................................... 207 
Table 5 - Derogations under Art. 6(4) of the RSPP Decision regarding the 800 MHz band . 208 

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1. EXECUTIVE SUMMARY 

The purpose of this staff working document is to assess the regulatory fitness of the current 
rules  that  make  up  the  regulatory  framework  for  electronic  communications  and  to  assess 
whether  they  have  contributed  to  the  achievement  of  the  framework's  main  objectives.  It  is 
also  to  identify  possible  redundancies,  inconsistencies  and  potential  for  simplification.  The 
regulatory  framework  consists  of  a  set  of  complementary  instruments  covering  both  sector-
specific economic regulation and end-user protection rules. It aims to promote competition — 
mainly through regulated access to the incumbent’s networks and provisions ensuring market 
entry and efficient access to key resources such as spectrum — in order to maximise end-user 
benefits. 

This  evaluation,  announced  in  the  Commission’s  Work  Programme,  is  warranted  for  two 
reasons.  The  first  is  the  legal  obligation  to  periodically  review  the  functioning  of  the 
regulatory framework. The second is that there have been a number of structural changes in 
the sector since the last review in 2009. It draws on the results of a wide-ranging stakeholder 
consultation,  Commission  monitoring  (e.g. 
implementation  reports,  Digital  Agenda 
Scoreboards) and various studies, including those that focus on the evaluation and review of 
the regulatory framework. The main findings are summarised below.      

Relevance — Generally speaking, the evaluation has shown that the specific objectives of the 
framework  —  promoting  competition,  realising  the  single  market  and  protecting  consumer 
interests — remain as valid as before. The single market objective is even more relevant than 
before.  Effective  and  sustainable  competition  drives  efficient  investment  and  fuels  the 
development  of  the  single  market.  It  ultimately  serves  the  interests  of  end-users,  by 
encouraging innovation and providing maximum benefit in terms of choice, price and quality. 

At the same time, connectivity has emerged as the underlying driving force for digital society 
and the digital economy, underpinned by technological changes and evolving consumer and 
market  demands.  It  is  a  key  aspect  of  the  Juncker  Commission’s  political  commitment  to 
deliver  the  digital  single  market.  It  is  therefore  necessary  to  consider  adjusting  the  current 
policy objectives and regulatory tools to further support the deployment of infrastructure and 
wide-spread take-up of corresponding connectivity services in line with future needs. 

Most regulatory areas remain as relevant as in 2009, if not more so. In particular, this applies 
to spectrum management, given the role of spectrum as an essential but scarce input for the 
deployment  of  current  and  next  generation  mobile  and  fixed  wireless  networks.  This  goes 
hand in hand with access regulation as a way of tackling the problem of the persisting entry 
barriers  in  the  networks.  For  instance,  market  developments  are  calling  into  question  the 
relevance  of  certain  specific  components  of  the  universal  service  regulation.  However,  the 
concept  of  a  safety  net  ensuring  that  all  citizens  are  included  in  a  fully  developed  digital 
society is even gaining in importance in relation to the digital single market. Similarly, while 
specific provisions under the consumer protection objective might have to be adjusted in view 
of  technological,  market  or  legislative  changes,  the  basic  end-user  protection  needs  the 
provisions meet remain relevant, as do their specific objectives.      

Effectiveness — It is widely recognised that the regulatory framework has been effective in 
delivering a competitive sector overall. This has generated significant end-user benefits, such 
as widely available (basic) broadband, a significant decrease in prices and more choice.   

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Access and spectrum regulation in particular, but also market entry provisions, have increased 
competition. Nevertheless, access regulation has delivered competition more at service than at 
network  level.  Also,  while  investments  in  very-high-capacity  networks  have  advanced,  they 
have  not  taken  place  across  all  Member  States  at  the  pace  envisaged  in  the  public  policy 
agendas  and  corresponding  to  expected  future  needs.  A  significant  amount  of  spectrum  has 
been released for wireless broadband, but progress in spectrum management has not been as 
good as wished for in the last review. This has resulted in delayed and fragmented network 
roll-out and take-up. 

Results in terms of achieving the single market objective are not very impressive. Regulatory 
consistency  has  been  achieved  only  to  a  limited  extent,  affecting  the  operations  of  cross-
border  providers  and  reducing  predictability  for  all  operators  and  their  investors.  The 
cooperation  and  consistency  tools  available  have  led  to  a  situation  in  which  the  best 
regulatory solutions have not always been  chosen, with impacts on end-user outcomes. EU-
level  consistency  checks  contribute  to  the  predictability  of  access  regulation  throughout  the 
EU, but their influence is significantly restricted with regard to draft regulatory remedies. The 
lack  of  consistency  in  spectrum  management  has  also  had  negative  consequences  for  end-
users, such as delayed 4G deployment in most parts of the EU. 

The  achievements  of  the  framework  in  protecting  end-users  and  in  ensuring  a  safety  net 
(universal  service)  are  significant,  although  progress  in  consumer  satisfaction  is  relatively 
slow. It is also clear that not all sector-specific end-user protection provisions are still fit for 
purpose given technological, market and legislative developments. 

Efficiency — It has not been possible to do a precise cost calculation, but the evaluation has 
shown  that  the  benefits  of  the  framework  —  for  most  operators,  end-users  and  society  as  a 
whole — greatly outweigh the costs of implementing it. A certain level of complexity might 
be  necessary  to  ensure  a  well  judged  intervention  (e.g.  appropriate  access  regulation). 
However,  several  areas  have  been  identified  in  which  the  administrative  burden  could  be 
reduced  without  making  the  provisions  less  effective  —  in  some  cases  even  making  them 
more  effective:  e.g.  longer  ex  ante  market  regulation  cycles,  simplified  procedures  for 
analysing  very  stable  markets,  streamlining  certain  overlapping  consumer  protection 
provisions. 

EU  added  value  —  The  regulatory  framework  has  been  instrumental  in  delivering 
competition in the single market that, to an extent, would not have been possible or likely at 
national level. It has brought national regulatory practice in the sector into line with the best 
models across the EU, with varying success for specific regulation areas. EU action has also 
contributed  to  more  comprehensive,  if  not  homogeneous,  consumer  protection  than  would 
otherwise be the case.   

Coherence  —  Generally  speaking,  the  various  instruments  making  up  the  regulatory 
framework have reinforced each other. Two issues would, however, merit specific attention in 
the  review  process.  They  are  the  coherence  between  regulation  aimed  at  incentivising 
competitive network roll-out and the EU financing and State aid rules in the sector, as well as 
the  potential  overlaps  between  certain  sector  specific  provisions  and  horizontal  consumer 
interest legislation.   

In  conclusion,  the  regulatory  framework  has  broadly  achieved  its  general  objective  of 
ensuring a competitive sector that provides significant end-user benefits. Nevertheless, while 
its  main  specific  objectives  —  promoting  competition,  developing  the  internal  market  and 

5 

 
promoting  the  interests  of  end-users  —  remain  relevant,  a  review  is  needed  to  address  the 
growing  need  for  increased  connectivity  of  the  digital  single  market  and  to  streamline 
provisions taking into account market and technological developments. 

6 

 
 
 
2. INTRODUCTION 

2.1. Purpose  

The  Commission's  Communication  of  6  May  2015  on  a  Digital  Single  Market  for  Europe1 
(DSM) is built on three pillars: (i) Better access for consumers and businesses to online goods 
and services across Europe; (ii) Creating the right conditions for digital networks and services 
to flourish; and (iii) Maximising the growth potential of our European Digital Economy. The 
review of the regulatory framework  for electronic communications is one of the key actions 
under the second pillar.  

The  present  evaluation  is  a  comprehensive  policy  evaluation  of  the  current  regulatory 
framework  for  electronic  communications.  It  has  been  announced  under  the  Commission's 
work programme for 20152 as a REFIT item, i.e. as belonging under  the Regulatory Fitness 
and  Performance  programme  and  is  warranted  not  only  because  of  the  legal  obligation  to 
periodically review the functioning of the regulatory framework3, but also because since the 
last  review  of  20094,  electronic  communications  networks  and  services  have  undergone  a 
number of structural changes.  

Its  purpose  is  to  assess  the  regulatory  fitness  of  the  current  rules  composing  the  regulatory 
framework  for  electronic  communications  and  to  examine  whether  they  have  contributed  to 
the  achievement  of  their  main  objectives,  as  well  as  to  identify  possible  redundancies, 
inconsistencies and simplification potential.  

The  evaluation  follows  the  guidelines  of  the  Better  Regulation  Package  and  assesses  the 
relevance, effectiveness, efficiency, EU added value, and coherence of the Telecoms Package. 

It follows a Fitness Check model, that is, an evaluation of most of the measures of the 2009 
Telecom  Package,  aiming  to  identify  the  cumulative  impact  of  the  interventions  covered  on 
the  three  objectives  of  the  framework:  promoting  competition,  the  internal  market  and  end-
user interests.  

This  evaluation  will  form  a  basis  for  potential  legislative  and/or  non-legislative  initiatives 
addressing the identified gaps and the ambition set out in the Digital Single Market Strategy.  

2.2. Scope 

The  evaluation  covers  the  following  instruments:  the  Framework  Directive  2002/21/EC  as 
amended,  the  Authorisation  Directive  2002/20/EC  as  amended,  the  Access  Directive 
2002/19/EC  as  amended,  the  Universal  Service  Directive  2002/22/EC  as  amended,  the 
BEREC  Regulation  1211/2009,  the  Radio  Spectrum  Decision  676/2002/EC,  the  Radio 

1 COM(2015) 192 
2 COM(2014) 910 
3  See the evaluation and/or review provisions in the respective instruments see Article 25 Framework Directive, 
Article 16 Authorisation Directive, Article 17 Access Directive, Articles 15 and 36 Universal Service Directive, 
Article 15 of the Radio Spectrum Policy Programme, Article 9 Radio Spectrum Decision. 
4 https://ec.europa.eu/digital-single-market/en/telecoms-rules 

7 

 
                                                 
Spectrum  Policy  Group  Decision  2002/622/EC,  Decision  243/2012/EU  establishing  a 
multiannual radio spectrum policy programme (RSPP)5.  

The  evaluation  does  not  cover  Directive  2002/58/EC  on  privacy  and  electronic 
communications,  since  the  evaluation  and  review  of  this  Directive  is  linked  to  the  ongoing 
legislative  process  of  the  general  data  protection  regulation  (see  COM(2012)11  final).  A 
specific evaluation is referred to in the Commission 2015 work programme. 

The  evaluation  of  the  Roaming  Regulation  531/2012  is  not  covered,  as  the  Roaming 
Regulation is addressed in the recently adopted Regulation (EU) 2015/2120 and is subject to a 
specific  review  process  provided  therein6.  Regulation  (EU)  2015/2120  also  amended  rules 
concerning open Internet access which are not part of this evaluation. 

The  Broadband  Cost  Reduction  Directive  2014/61  is  not  covered  either,  as  it  is  currently  in 
the process of being transposed by Member States (date of application of most provisions: 1 
July 2016).  

The timeframe of the evaluation covers in principle the period from the entry into force of the 
revised  regulatory  framework  i.e.  from  May  2011  till  end  of  May  2016.  Wherever  longer 
datasets  are  available  and  where  they  can  be  useful  in  showing  impacts  (i.e.  in  those 
regulatory areas with little or no modifications during the 2009 review), 2004 is the starting 
point – the year when the 2002 package entered into force establishing a distinct set of rules 
and regulatory  principles. Indeed, while the last revision  of the package  of instruments  took 
place  as  of  2009,  it  would  be  difficult  to  judge  the  overall  functioning  of  the  framework 
without  looking  at  the  entire  package  as  adopted  in  2002.    The  geographic  focus  is  on  the 
European territory of the Member States to which the Treaty applies.    

3. BACKGROUND TO THE INITIATIVE 

3.1. General description of the regulatory framework and its objectives 

The  framework  was  set  up  in  2002,  consisting  of  five  directives:  the  Framework  Directive 
(2002/21/EC), the Authorisation Directive (2002/20/EC), the Access Directive (2002/19/EC), 
the  Universal  Service  Directive  (2002/22/EC)  and  the  Directive  on  privacy  and  electronic 
communications  (2002/58/EC).  The  framework  comprised  (i)  sector-specific  economic 
regulation  and  (ii)  rules  safeguarding  end-user  interests,  and  had  the  general  objective  to 
promote  competition  via  regulated  access  to  incumbents'  networks  and  market  entry  as  a 
means to make markets contestable, to achieve efficient market outcomes and, in particular, to 
maximise consumer benefits. Economic regulation was based on the principles of competition 
law and aimed to take into account the convergence of technologies.  

5 See in Annex IV the list of legislation evaluated, legislation not evaluated (and corresponding justifications). 
6  Regulation  (EU)  2015  of  the  European  Parliament  and  of  the  Council  of  25  November  2015  laying  down 
measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ 
rights  relating  to  electronic  communications  networks  and  services  and  Regulation  (EU)  No  531/2012  on 
roaming on public mobile communications networks within the Union, O.J L 310/1, 26.11.2015. 

8 

 
 
                                                 
The  regulatory  framework  is  composed  of  a  set  of  complementary  instruments.  The 
Framework  Directive  establishes  a  harmonised  framework  for  the  regulation  of  electronic 
communications networks and services, associated facilities and associated services, outlining 
the general principles, objectives and procedures governing this policy area.  It also, together 
with  the  BEREC  Regulation,  lays  down  the  overall  institutional  set  up  by  establishing 
independent national regulatory authorities (NRAs) responsible for regulation at national level 
and  defines  the  role  of  BEREC,  composed  of  NRAs,  in  advancing  a  consistent  regulatory 
approach at the EU-level. The Framework Directive is complemented by four directives and 
several more specific regulations. In particular, the Authorisation Directive harmonises and 
simplifies  the  authorisation  rules  and  conditions  in  order  to  facilitate  their  provision 
throughout the EU, in particular by replacing individual licenses by general authorisations to 
provide communications services. The  Access Directive grants telecom operators rights and 
obligations  to  negotiate  interconnection  of  their  networks  with  the  view  to  ensure 
interoperability of services throughout  the EU in  the interest  of end-users.  It also empowers 
NRAs,  among  others,  to  impose  adequate  regulatory  obligations  in  the  areas  of  access  and 
interconnection in order to ensure competition in the market and contribute to the achievement 
of the single market. The Universal Service Directive guarantees basic rights for consumers 
and  minimum  levels  of  availability  and  affordability.  On  the  one  hand,  it  ensures  that 
consumers can fully reap the benefits on a competitive market. On the other hand, it provides 
a safety net for end-users which are not catered for by the competition on the single market.  
Finally,  the  e-Privacy  Directive  (not  included  in  the  scope  of  this  evaluation)  covers 
protection of privacy and personal data communicated over public networks. 

Prior to 2002 the principal aim of telecom regulation had been to break down monopolies. In 
2002,  the  needs  had  evolved:  the  markets  were  becoming  progressively  competitive,  their 
contribution  to  the  overall  economy  moderately  recognised,  while  at  the  same  time 
technologies (e.g. cable and telephony providers) were converging. Thus the need to move to 
a  case-by-case,  competition  law  based  approach  as  far  as  access  regulation  is  concerned,  to 
cover  within  one  framework  networks  and  transmission  services  (but  not  content),  and  to 
complement  economic  regulation  with  end-user  protection  rules.    The  framework  provided 
also for the progressive removal of regulation as and when competition becomes effective. 

In  the  first  review  of  the  2002  package,  two  Directives  –  the  Better  Regulation  Directive 
2009/140/EC  and  the  Citizens'  Rights  Directive  2009/136/EC  –  have  provided  additional 
tools  to  respond  to  the  need  to  ensure  more  effective  competition,  consolidate  the  internal 
market  and  strengthen  end-user's  rights.  As  laid  down  in  the  review  Communication 
(COM/2006/0334 final)7, several changes were needed despite significant achievements of the 
framework  in  terms  of  prices,  choice,  high  mobile  penetration  and  growing  broadband 
penetration,  etc.    In  particular  there  was  a  need  to  render  spectrum  management  more 
effective,  to  simplify  the  market  review  processes,  to  reinforce  end-users'  interest  and  to 
improve  security.  There  was  also  a  particular  need  to  increase  the  consistency  of  regulatory 
approaches in Member State.  

A  number  of  regulatory  principles  how  to  pursue  the  objectives  of  competition,  internal 
market, and citizens' interests have also been added, not least in relation to the promotion of 

7 Communication from the Commission to the Council, the European Parliament, the European Economic and 
Social  Committee  and  the  Committee  of  the  Regions  on  the  review  of  the  EU  Regulatory  Framework  for 
electronic  communications  networks  and  services  (COM/2006/0334  final)  accompanied  by  the  evaluation  and 
impact assessment documents (SEC(2006) 816 and SEC(2006) 817) 

9 

 
                                                 
investment  and  innovation  in  new  and  enhanced  infrastructures.  Particular  attention  was 
devoted  to  the  need  to  apply  the  principles  of  the  regulatory  framework  to  spectrum 
management.  

As  referred  to  above,  the  Body  of  European  Regulators  for  Electronic  Communications 
(BEREC)  was  also  established  by  the  2009  BEREC  Regulation  to  contribute  to  a  more 
consistent  regulatory  practice  among  national  regulatory  authorities  and  to  advise  EU 
institutions. BEREC started operations in January 2010 and became fully functional in 2011.  

The intervention logic, setting out the rationale and approach for the working of the package 
is  summarised  in  Figure  1,  below.  This  includes  the  general  and  specific  objectives,  the 
activities and inputs required to achieve these objectives, and the outputs, results and impacts 
that should be achieved through their implementation.  

Both  the  general  objective  and  the  specific  objectives  remained  unchanged  in  the  2009 
review. In response to the needs identified above, the overarching objective of the regulatory 
framework for electronic communications  was to create a competitive sector, with a view to 
maximising  end-user  outcomes/benefits.  Competition  on  the  Single  Market  has  indeed  been 
considered  to  be  the  main  engine  delivering  diverse,  innovative,  and  affordable  services  to 
consumers and businesses8. Provisions were also put in place to enable end-users to fully take 
advantage of the competition created. 

The  general  objective  was  further  broken  down  in  three  specific  objectives:  promoting 
competition, improving the functioning of the Internal Market and protecting the interests of 
European citizens. The specific objectives of the intervention were furthermore broken down 
by the legislator into sub-objectives:9  

- 
Promoting  competition  means  (1)  ensuring  that  users  derive  maximum  benefit  in 
terms  of  choice,  price  and  quality,  (2)  ensuring  that  there  is  no  distortion  or  restriction  of 
competition, and (3) by encouraging efficient use and ensuring the effective management of 
radio frequencies and numbering resources; 

-  
Developing  the  internal  market  implies  (1)  removing  remaining  obstacles  at  EU 
level, (2) encouraging the establishment and development of trans-European networks and the 
interoperability  of  pan-European  services,  and  end-to-end  connectivity,  and  (3)  cooperating 
with each other, with the Commission and BEREC; 

Finally,  promoting  the  interests  of  EU  end-users  means  (1)  ensuring  all  citizens 
- 
have  access  to  a  universal  service,  (2)  ensuring  a  high  level  of  consumer  protection,  (3) 
promoting  the  provision  of  clear  information,  (4)  addressing  the  needs  of  specific  social 

8 As explained in COM/2006/0334 "regulatory holidays" were suggested by certain stakeholders during the 2009 
review  but  not  proposed  by  the  Commission  as  it  was  believed  that  investments  would  typically  not  occur  in 
absence of competitive pressure. To the contrary evidence suggested that competition would continue to bring 
most benefits including network investment.  
9 This is a non-exhaustive list. See Article 8 of the Framework Directive. Note that the last two sub-objectives 
have been added during the 2009 reform of the regulatory framework. A number of regulatory principles how to 
pursue those specific objectives have also been added in 2009 (see Article 8(5) Framework Directive), including 
the promotion of efficient investment and innovation in new and enhanced infrastructures. Note also that the sub-
objective  of  protection  of  personal  data  and  privacy  is  not  covered  here  as  it  is  part  of  the  REFIT  exercise 
concerning the ePrivacy Directive. 

10 

 
 
 
                                                 
groups,  and  (5)  ensuring  that  the  integrity  and  security  of  public  communications  networks 
are maintained10.  

The first two sub-objectives are inter-related: competition needs to be understood in a Single 
Market context. As such, provisions aimed at enabling competition (e.g. ensuring access for 
new entrants to essential inputs, lowering barriers to market entry, etc.) can be seen as serving 
both  the  competition  and  the  internal  market  objectives.  At  the  same  time,  provisions 
considered under the Single Market objective have competition as the ultimate objective, too.  

However, in view of the clarity of the analysis, provisions were grouped under the objective 
they most serve. This implies that a choice was made for each provision, and that a regulation 
area is often broken down into provisions which are split between more than one objective. 
The colour codes in the intervention logic graph above reflect these splits. Throughout most 
of  the  text,  the  provisions  are  evaluated  per  regulation  area,  with  the  exception  of  the 
effectiveness  analysis,  where  beyond  regulation  area,  the  evaluation  looks  at  how  specific 
provisions  contributed  to  each  objective.  Annex  V  furthermore  summarises  the  evaluation 
findings per instrument.  

The  choice  to  conduct  the  evaluation  per  regulation  area  rather  than  per  instrument  (or 
provision  by  provision)  reflects  the  Fitness  Check  evaluation  model.  In  addition,  provisions 
belonging  to  one  regulation  area  are  often  covered  in  more  than  one  legislative  instrument, 
therefore an evaluation per area and against the overall objectives of the framework was the 
preferred  option  in  view  of  delivering  a  readable  product,  reflecting  the  intervention  logic 
rather than the successive legislative changes.   

10 Two sub-objectives are not included in the list as they are covered in different evaluation exercises: ensuring a 
high level of protection of personal data and privacy and promoting the ability of  end-userend-users to access 
and distribute information or run applications of their choice.  

11 

 
 
 
 
 
                                                 
Figure 1 Intervention logic summary 

12 

 
 
13 

The paragraphs below present shortly the main regulation areas, which constitute the 
inputs to the intervention logic, together with their corresponding activities.  

Access  regulation:  The  main  tool  by  which  national  regulators  (NRAs)  promote 
competition  and  investment  in  next  generation  networks  under  the  framework  is  the 
system  of  ex  ante  regulation,  under  which  NRAs  conduct  market  analyses  at  regular 
intervals and apply appropriate remedies (such as  access obligations and  cost controls) 
on operators found to have significant market power (SMP). Following the 2009 review 
of the framework, NRAs were given the additional option of mandating facility sharing 
in  the  final  (terminating)  segment  of  the  network  (symmetric  regulation).  The  2009 
review  also  introduced  the  potential  for  NRAs  to  mandate  ‘functional  separation’  of 
SMP  operators,  i.e.  to  place  activities  related  to  the  wholesale  provision  of  relevant 
access  products  in  an  independently  operating  business  entity,  in  cases  where  other 
remedies had failed.  

The overall flexibility given to NRAs in choosing appropriate regulatory remedies from 
the available toolbox referred to in the paragraph above required the introduction of co-
ordination  mechanisms  to  ensure  regulatory  consistency  on  the  Single  Market.  Indeed, 
the  2002  framework  set  up  an  EU  consultation  mechanism  ("Article  7  procedure")  to 
ensure consistent application of the market analysis procedure across the Member States. 
The  consultation  mechanism  introduced  an  EU  level  check  on  the  draft  national 
regulatory  measures  and  entailed  a  potential  veto  from  the  Commission  on  market 
definition and the designation of SMP but not on remedies. The consultation mechanism 
was accompanied with associated guidance (e.g. Recommendation on Relevant Markets 
susceptible to ex ante Regulation and guidelines for market analysis and the assessment 
of  significant  market  power11)  and  included  a  possibility  for  the  Commission  to  issue 
Recommendations  in  order  to  enhance  harmonised  application  or  remedies,  subject  to 
consultation  with  national  experts  from  the  Member  States.  (Under  these  powers  the 
Commission has issued Recommendations on Next Generation Access12, on Costing and 
Non Discrimination13, and on Termination Rates14.) 

The  2009  review  further  reinforced  the  mechanism  to  ensure  consistent  application  of 
remedies  by  establishing  a  mechanism  for  seeking  an  opinion  of  BEREC  in  case  of 
serious doubts on the remedies proposed by an NRA and empowering the Commission 
to issue a recommendation to the individual NRAs concerned. Furthermore, the power of 
the  Commission  to  issue  general  Recommendations  on  the  harmonised  application  of 
remedies was reinforced by empowering the the Commission to issue general Decisions 

11 Commission Recommendation of 9 October 2014 on relevant product and service markets within the 
electronic  communications  sector  susceptible  to  ex  ante  regulation  in  accordance  with  Directive 
2002/21/EC  of  the  European  Parliament  and  of  the  Council  on  a  common  regulatory  framework  for 
electronic communications networks and services (2014/710/EU), OJ L 295, 11.10.2014, p. 79; 
12 Commission Recommendation of 20 September 2010 on regulated access to Next Generation Access 
Networks (NGA)  (2010/572/EU)   OJ L, 25.09.2010, p. 35; 
13 Commission Recommendation of 11 September 2013 on consistent non-discrimination obligations and 
costing  methodologies  to  promote  competition  and  enhance  the  broadband  investment  environment 
(2013/466/EU) OJ L 251, 21.9.2013, p. 13;   
14  Commission  Recommendation  of  7  May  2009  on  the  Regulatory  Treatment  of  Fixed  and  Mobile 
Termination Rates in the EU (2009/396/EC), OJ L 124, 20.05.2009, p. 67 

13 

 
 
                                                 
14 

(subject  to  comitology)  if  Recommendations  were  not  followed.  The  important  role 
played by NRAs collectively in these mechanisms also drove the creation of BEREC as 
an EU body formalising their cooperation.  

Spectrum regulation:  The 2002 framework, developed at a time when mobile telephony 
was  still  in  the  growth  phase  (and  mobile  data  virtually  unknown)  gave  significant 
flexibility to Member States in the management of radio frequencies and procedures for 
the transfer of rights, subject to general principles set out in the legislation. Two bodies 
were  established  at  the  same  time  to  support  the  co-ordination  of  spectrum  policy:  (1) 
the Radio Spectrum Decision of 2002 established the Radio Spectrum Committee (RSC) 
which has responsibility for technical measures required to implement the broader Radio 
Spectrum Policy15 and (2) the Radio Spectrum Policy Group (RSPG) established under 
Commission  Decision  2002/622/EC  consisting  of  Member  State  and  Commission 
representatives  was  established  as  an  advisory  group  to  the  Commission.  The  RSPG 
issues opinions and reports on Radio Spectrum Policy at the request of the Commission 
and  more  recently  under  an  expanded  remit  also  the  European  Parliament  or  the 
Council16.  The  2009  revision  to  the  electronic  communications  framework  provided 
significant  new  guidance  on  spectrum  management,  as  mobile  communications  were 
gaining prominence and spectrum was more and more seen as essential input to compete 
on  the  electronic  communications  market.    Importantly,  it  also  paved  the  way  for  the 
2012  Radio  Spectrum  Policy  Programme  (RSPP),  which  now  serves  as  a  roadmap  for 
the  development  of  the  internal  market  for  a  wide  range  of  wireless  technologies  and 
services  (i.e.  not  just  for  electronic  communications),  taking  into  account  both  Europe 
202017 and the Digital Agenda for Europe18. However, unlike access regulation, which is 
subject  to  the  ‘Article  7’  process,  there  are  currently  no  measures  for  the  EU-level 
assessment of  draft national measures in the field of spectrum policy, and in particular 
the assignment of rights of use of spectrum. 

Numbering  regulation:  The  availability  of  adequate  numbering  resources  is  a  crucial 
pre-requisite  for  the  development  and  growth  of  telecommunication  markets  and 
services.  Under  the  current  regulatory  framework,  Member  States  shall  ensure  that 
adequate  numbers  and  numbering  ranges  are  provided  for  all  publicly  available 
electronic  communication  services,  via  objective,  transparent  and  non-discriminatory 
procedures. The framework also includes provisions requiring Member States to support 
the  harmonisation  of  specific  numbers  or  numbering  ranges  within  the  Community 
where  it  promotes  both  the  functioning  of  the  internal  market  and  the  development  of 
pan-European services. The Commission may take appropriate technical implementation 
measures  on  this  matter.  The  use  of  numbers  is  coordinated  at  the  global  level  by  the 
International  Telecommunications  Union  –  Telecommunications  Sector  (ITU-T).  In 
(European  Conference  of  Postal  and  Telecommunications 
addition,  CEPT 
Administrations)  is  an international organisation, affiliated to ITU, that  coordinates the 
activities of 48 European countries.  

15 See https://ec.europa.eu/digital-agenda/radio-spectrum-committee-rsc  
16 See https://ec.europa.eu/digital-agenda/radio-spectrum-policy-group-rspg  
17  EUROPE 2020 A strategy for smart, sustainable and inclusive growth /* COM/2010/2020 final */ 
18    Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions  A  Digital  Agenda  for  Europe    /* 
COM/2010/0245 final */ 

14 

 
 
                                                 
15 

Market  entry  provisions  (authorisation,  rights  of  way):  The  conditions  governing 
authorisation for providing electronic communications networks and services are aimed 
at  the  harmonisation  and  simplification  of  authorisation  rules.  In  particular,  the 
conditions attached to general authorisations are restricted by the framework. The types 
of obligations that could be covered in a general authorisation, applying to all operators 
regardless  of their position on the market  include provisions concerning administrative 
charges and contributions to a universal service fund if appropriate, provisions regarding 
interconnection  and  interoperability,  consumer  protection  rules,    data  and  privacy 
protection,  enabling  of  lawful  intercept,  requirements  to  provide  information  to  the 
NRA, restrictions concerning the transmission of illegal content; and environmental and 
planning requirements. 

To  encourage  infrastructure  deployments,  granting  rights  of  way  or  access  to  sites  is 
essential.  The  framework  foresees  that  competent  authorities  of  Member  States,  on 
application,  are  to  grant  rights  to  install  facilities  on,  over  or  under  public  or  private 
property to an undertaking authorised to provide public communications networks. The 
granting  mechanism  should  be  simple,  efficient,  transparent  and  publicly  available 
procedures,  applied  without  discrimination  and  without  delay  (normally  within  six 
months of the application).  

Standardisation:  Under  the  regulatory  framework,  the  Commission  is  required  to 
establish  a  list  of  non-compulsory  standards  in  order  to  encourage  the  harmonised 
provision  of  electronic  communications  networks  and  services  and  associated  facilities 
and  services.  Such  a  list  was  set  up under  Decision  2007/176  as  amended  by  Decision 
2008/286/EC. The Commission can also ask standardisation bodies (CEN, CENELEC or 
ETSI)  to  draw  up  standards.  Member  States  are  furthermore  encouraged  to  use  those 
standards. If compliance with specified standards at EU level is encouraged, this would 
be done to ensure interoperability in the single market. The Commission is also given the 
power  to  adopt  implementing  measures  in  order  to  render  specifications  and  standards 
compulsory. 

End-user protection provisions include: obligations to facilitate switching including one-
day  number  portability  obligations,  sectorial  contractual  obligations,  provisions 
concerning  transparency  on  tariffs  and  other  conditions,  provisions  concerning 
transparency  on  Quality  of  Service  and  potential  minimum  Quality  of  Service 
requirements, the potential for Member States to mandate ‘must-carry’ obligations, etc. 
Electronic  communications  services  are  also  subject  to  obligations  concerning  security 
and integrity, while privacy is subject to a separate review.19 

Universal service provisions allow Member States to put in place obligations serving as 
safety net ensuring that the most vulnerable in society as well as those in more remote 
areas  can  receive  basic  services.  At  the  time  of  the  introduction  of  the  provisions  in 
2002, phone boxes and physical directories were still in widespread use and the need to 
have  access  to  telephony  services  at  a  fixed  location  was  considered  a  vital  objective, 
alongside  the  more  forward-looking  concern  that  users  needed  access  to  a  connection 
that  permitted  ‘functional  Internet  access’.  Today’s  universal  service  covers  both 

See 

19 
eprivacy-directive  

https://ec.europa.eu/digital-single-market/en/news/public-consultation-evaluation-and-review-

15 

 
 
                                                 
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connectivity and service aspects, as well as the affordability of tariffs and accessibility 
for disabled users. The provisions permit financing of any ‘net cost’ of universal service 
obligations either through a levy on operators or through public funds, where such a net 
cost  would  otherwise  constitute  an  unfair  burden  to  the  designated  Universal  Service 
Obligation (USO) operator.  

Finally,  a  separate  set  of  provisions  is  dedicated  to  the  functioning  of  the  national 
regulatory  authorities  (NRAs),  aimed  mainly  at  ensuring  effective  and  impartial 
regulatory decisions vis-à-vis market players. Member States should indeed ensure that 
well-functioning  NRAs  are  in  place  as  they  are  entrusted  all  the  objectives  of  the 
framework  and  most  of  the  tasks  under  the  framework.  The  legislation  distinguishes, 
however,  between  the  independent  NRA,  which  must  be  competent  for  ex  ante  market 
regulation and the settlement of disputes between undertakings, and the NRA in a more 
generic  sense,  which  can  be  any  national  authority  (including  but  not  confined  to  the 
independent  NRA)  which  is  entrusted  with  one  or  more  of  the  other  tasks  under  the 
various Directives. 

Further  to  the  activities  described  above  under  each  regulation  area,  the  framework 
entails  also  national 
implementation  measures,  Commission  monitoring  and 
enforcement, etc.  

The  direct  results  or  outputs  of  the  actions  specific  to  the  regulation  areas  described 
above are: access regulation and remedies (e.g. access products that alternative operators 
can use to compete with incumbents), spectrum award procedures (e.g. where operators 
acquire  spectrum  and  band  can  be  reorganised  efficiently),  rules    for  flexible  use  of 
spectrum  (e.g.  allowing  operators  to  trade  or  lease  spectrum),  numbering  assignment 
plans, authorisation schemes on the ground, out of court dispute bodies, universal service 
regimes in place, etc. Such outputs are measured, throughout the evaluation, as much as 
possible quantitatively and/or qualitatively.  

A  set  of  indicators  –  result  indicators  –  help  understanding  the  intermediate  results, 
referring to the specific objectives of the regulatory framework – the growth in number 
of  competitors,  progress  on  the  single  market,  and  better  mechanisms  for  consumer 
protection:  the  actual  take-up  of  access  remedies  by  competitors,  the  decrease  in  the 
number  of  regulated  markets,  the  number  of  new  entrants  resulting  from  spectrum 
auctions,  the  spectrum  used  in  harmonised  bands,  the  consistency  of  regulatory 
approaches  applied  across  Member  States,  the  number  of  cross-border  operators,  the 
actual  use  of  services  covered  under  universal  service  obligations,  the  use  of  the 
European  emergency  number  112,  the  number  of  actual  switching  and  porting 
transactions, etc. 

At  a  higher  level,  the  impact  on  the  sector's  competitiveness  as  well  as  the  overall 
consumer outcome indicators (innovation, choice, affordability) are measured by another 
set  of  indicators,  such  as:  the  market  share  of  incumbents,  Next  Generation  Access 
(NGA) rollout, price and performance available. While investment in enhanced networks 
is not a primary objective of the framework, network rollout is considered an important 
element for consumer outcomes. 

16 

 
 
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1.1.  Baseline  

The European Electronic Communications Regulation and Markets 11th Report20 offers a 
good overview of the situation across Member States at the end of 2005, before the last 
review  of  the  regulatory  framework  was  carried  out.  The  main  findings  can  be 
summarised  as  follows:  the  take-up  of  broadband  stood  at  11.5%  in  200521,  with  new 
entrants having a combined market share of roughly 50% of those subscriptions. Mobile 
penetration had reached 92.8%, growing faster in the "new Member States" which joined 
in  2004.  In  2005  it  was  estimated  that  there  were  around  15  million  subscribers  to  3G 
services.  Prices  were  in  general  falling  rapidly,  except  for  the  prices  for  calling  from 
fixed to mobile networks and prices for roaming, which remained high. Mobile number 
porting (retaining the number, which stimulates competition) had doubled during 2005 (a 
total of 24.5 million customers had retained their number while changing provider until 
then).  The  fixed  markets,  despite  already  decreasing  revenues  were  at  the  time  still  an 
attractive market for new entrants, with a value of 85.8 billion EUR in 2005. Among the 
18  markets  susceptible of  ex  ante  access  regulation,  the  markets  for international  fixed 
telephony  and  access  and  call  origination  on  mobile  networks  were  slowly  becoming 
more  competitive  (regulation  had  been  lifted  for  those  markets  in  over  six  Member 
States). In total, 29 markets from the total of 450 (18 markets x 25 Member States) were 
deregulated.  Network competition was still rather limited, with only 8.3% of subscribers 
using direct access from a new entrant (a cable line, an unbundled line, etc.). Overall, the 
market  showed  how  the  framework  had  started  to  deliver  its  objectives.  However,  it  is 
also  important  to  note  that  competition  mainly  came  from  cable  infrastructure,  which 
was  not  regulated.  Indeed,  the  countries  where  direct  access  from  new  entrants  was 
significantly higher were those with strong cable presence (UK, Denmark, etc.).  

As noted in the impact assessment carried out in view of the 2009 review22 since markets 
were  fully  opened  up  to  competition  in  1998,  users  and  consumers  had  benefited  from 
more  choice,  lower  prices  and  innovative  products  and  services.  Overall  growth  in 
revenue terms in the sector had continued to be strong, outpacing the growth of the EU 
economy. On average, for the same telecoms services, consumers spent almost 24% less 
in 2005 than in 1996, and as prices had gone down about 35% in the same period23, this 
implied an increase in use of electronic communications services.  

Despite  these  positive  developments,  several  changes  were  called  upon  in  2005.  In 
particular  there  was  room  for  significant  improvement  in  the  way  that  spectrum  was 
managed, in that a mismatch could be observed between spectrum regulation and market 
requirements in wireless communication services impairing the efficient use of spectrum. 
Changes in spectrum regulation were necessary so that the full potential of spectrum to 
contribute to innovative, diverse and affordable services to the European citizen and to 
strengthen the competitiveness of European ICT industries could be realised. 

20 See  http://europa.eu/rapid/press-release_MEMO-06-84_en.htm?locale=en     
21 If measured per household, then broadband take-up stood at 24.9%.  
22 Commission Staff Working Document on the Review of the EU Regulatory Framework for electronic 
communications networks and services  (SEC (2006) 817) 
23 When taking into account the general evolution of prices in the economy as relative prices (i.e. corrected 
for the evolution of the harmonized consumer price index). 

17 

 
 
                                                 
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As  regards  other  areas,  and  in  particular  access  regulation,  the  2009  review  discussed 
potential  changes  in  view  of  further  stimulating  investments  and  concluded  that  the 
principles  and  flexible  tools  in  the  regulatory  framework,  when  applied  fully  and 
effectively, offer the most appropriate means of encouraging investment, innovation and 
market  development.  In  2005,  aggregate  investment  –  measured  in  terms  of  capital 
expenditure - rose to more than € 45 billion, representing an increase of 6% over 2004. It 
was the third consecutive year of increased year-over-year investment levels since 2003. 
The  steady  nature  of  this  overall  increase  suggested  that  the  investment  cycle  had 
improved  and  that  the  sector  was  considered  a  more  attractive  growth  opportunity 
because  of  its  broader  structural  characteristics.  Moreover  renewed  emphasis  on 
investment was accompanied by rising capital market valuations of the sector over time. 
There  was  nevertheless  a  need  for  the  Commission  and  NRAs  to  provide  guidance  on 
how the rules should be applied, so as to increase predictability for stakeholders. There 
was  also  a  concern  about  the  administrative  burden  related  with  market  analyses  and 
notification procedures (Article 7).  

The  Commission  had  identified  furthermore  several  detailed  areas  where  consumer 
protection could be improved, as well as needed updates to the universal service regime. 
Notably,  the  need  to  ensure  security  of  services  and  networks  (preferably  through 
dedicated legal provisions) had become prominent not only for the sector itself as for all 
the part of the economy which relied on ICT.   

The  major  technological  and  market  changes  anticipated  for  the  next  ten  years  were: 
migration 
to  ‘all  Internet  Protocol  (IP)’  networks,  growing  use  of  wireless 
communications and wireless access platforms (e.g. 3G,  Wi-Fi, WiMAX and satellite), 
deployment  of  fiber  in  the  local  access  network,  and  the  transition  to  digital  TV.  Far-
reaching impacts on existing network architectures, services and consumer devices were 
expected, leading  to  new and innovative services for users, starting with  ‘triple play’24 
services.  

4. EVALUATION QUESTIONS 

The following questions were set out under the five different evaluation criteria and form 
the main basis for the evaluation:  

Relevance  

  Are  the  original  (general  and  specific)  objectives  of  this  regulatory  framework 
still  relevant?  To  what  extent  do  the  original  objectives  of  the  regulatory 
framework  -  to  promote  competition,  to  develop  the  internal  market,  and  to 
protect  the  interests  of  EU  citizens  still  correspond  to  the  needs  and  problems 
within the EU and in relation to the emerging needs of the sector?  

24 Triple play refers to bundled offers/ to subscriptions to e.g. television, telephony and internet services.  

18 

 
 
 
 
 
 
 
 
                                                 
19 

  Looking at the global objectives and the structural changes in the sector, are there 

new objectives that the framework should pursue? 

  How relevant is the regulatory framework to stakeholders and to EU citizens? 
  Are all the regulation areas still relevant in reaching the objectives identified as 

being still relevant?  

Effectiveness 

  To  what  extent  can  these  high  level  results  and  evolutions  be  attributed  to  the 

working of the framework? How do these trends compare internationally?  

  Have  the  objectives  of  the  framework  been  met?  Looking  at  the  electronic 
communications sector, how have competition, the internal market and consumer 
interest evolved?  

  What  are  the  main  outputs  and  results  per  regulatory  area?  How  has  each 
regulation area contributed to the attainment of the objectives of the framework?  
  What  have  been  the  major  constraints  on  the  effectiveness  of  each  regulation 
area?  Are there any areas that are more or less effective than others, and, if so 
what lessons can be drawn from this? 

Efficiency 

  Do  the  provisions  of  the  framework  allow  for  an  efficient  implementation  by 

Member States?  

  Do  the  provisions  create  overly  burdensome  obligations  for  operators  or 

regulators, as main stakeholders of the framework?    

  How  do  the  results  compare  to  the  costs  at  a  general  level/for  the  main 

stakeholders?  

EU added value 

  Could  similar  results  have  been  achieved  at  national/regional  level,  or  did  EU 

action provide clear added value? 

Coherence 

 

Is  the  regulatory  framework  internally  coherent?  Do  certain  regulation  areas 
complement and reinforce each other?  

  Have any contradictions, overlaps, or conflict been detected?  
  How  is  coordination  ensured  between  the  various  regulation  areas  of  the 

framework? 

  To  what  extent  is  this  framework  coherent  with  other  EU  policies  which  have 

similar objectives?  

  Have any potential conflicts or gaps been detected?  
  What are the other policy areas with which coordination and complementarity are 

particularly important? 

19 

 
 
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5. METHOD 

The  evaluation  was  coordinated  by  the  EC's  Directorate-General  Communications 
Networks,  Content  and  Technology  with  the  support  of  a  Steering  Group  (with 
and  Rural 
representatives  of  Commission  Directorate-Generals  Agriculture 
Development; Competition; Informatics; Economic and Financial Affairs; Education and 
Culture;  Employment,  Social  Affairs  and  Inclusion;  Energy;  Environment;  Eurostat; 
European  Political  Strategy  Centre;  Financial  Stability,  Financial  Services  and  Capital 
Markets  Union;  Internal  Market,  Industry,  Entrepreneurship  and  SMEs;  Legal  Service; 
Migration  and  Home  Affairs;  Joint  Research  Centre;  Neighbourhood  and  Enlargement 
Negotiations;  Justice  and  Consumers;  Mobility  and  Transport;  Regional  and  Urban 
Policy; Research and Innovation; Health and Food Safety; Secretariat-General; Taxation 
and Customs Union; and Trade).  

The  Group  steered  and  monitored  the  progress  of  the  exercise,  ensuring  the  necessary 
quality, independence and usefulness of the evaluation.  

The  evaluation  took  place  between  March  2015  and  June  2016  and  drew  from  the 
following main data sources and methods.  

Evidence gathering 

  Dedicated studies 

Three dedicated, independent studies support the findings of this fitness check: 

  Support for the preparation of the impact assessment accompanying the 
review of the regulatory framework for e-communications25  
  Regulatory, in particular access, regimes for network investment models 
in Europe26  
  Substantive issues for review in the areas of market entry, management of 
scarce resources and general consumer issues27  

  Literature review 
Several studies related to the specific regulation areas28 were reviewed and an extensive 
literature review was carried out. A list of the studies used is included in Annex III. 

  Stakeholder consultations 

The  main  stakeholders  of  the  regulatory  framework  are  electronic  communications 
providers (of which incumbent operators and alternative operators29 often have different 

25 SMART 2015/0005 
26 SMART 2015/0002 
27 SMART 2015/0003 
28  Review  of  the  scope  of  universal  service  (SMART  2014/0011),  Study  on  future  trends  and  business 
models in communications services and their regulatory impact (SMART2013/0019) etc.  
29  While  the  traditional  boundaries  between  types  of  operators  are  disappearing  (i.e.  incumbents  in  one 
member state are alternative providers in another member states and operators are increasingly combining 

20 

 
 
 
 
 
                                                 
 
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views  and  interests  when  specific  competition  related  policy  areas  are  concerned), 
national  governments  (including  Spectrum  Management  Authorities)  and  National 
Regulatory  Authorities.  Citizens  and  businesses  including  SMEs  are  grouped  together 
under the "end-user" category. Other industries connected to electronic communications 
are  affected  by  the  framework  while  not  being  subject  to  it:  Over-the-Top  players, 
equipment manufacturers, broadcasters, etc.      

The  stakeholder  consultation  was  designed  to  reach  a  wider  range  of  stakeholders 
including both those who have been engaged in implementing the Directives and those 
who  have  experience  of  requirements  to  comply  with  the  Directives  at  different 
geographical levels. It included:  

–  Targeted consultation - addressing selected stakeholders in all Member States 
through specific evidence gathering visits to the Member States dedicated to 
the  evaluation  and  review  of  the  framework  have  been  conducted  during 
2015-2016. 

–  A  wide  range  of  stakeholders  have  been  invited  to  submit  written 
contributions  –  within  and  outside  the  public  consultation  (see  below).  All 
Member  States  have  provided  contributions,  with  National  Regulatory 
Authorities having submitted a detailed analysis of the current provisions of 
the framework. These submissions have fed the evaluation findings (not just 
the  main  conclusions  but  also  the  provision  by  provision  screening  of  the 
directives presented in Annex V) and are briefly presented in Annex II.  

–  Public  consultation:  In  accordance  with  Better  Regulation  Guidance  a  12 
week  on-line  public  consultation  covering  all  policy  areas  and  evaluation 
questions was undertaken on the EU Survey website between September and 
December 2015. The questionnaire was only available in English but replies 
in  all  EU  languages  were  accepted.  It  gathered  a  total  of  244  replies  from 
stakeholders  in  all  Member  States  as  well  as  from  outside  the  Union.  An 
initial summary report of the findings30 was published in 3 March 2016 and 
the  full  report31  of  the  public  consultation  was  published  on  20  April  2016 
(Annex  II)..  The  consultation  elicited  both  consolidated  contributions  from 
umbrella  organisations  and 
from  various 
stakeholders.  The  analysis  of  the  responses  was  done  using  stakeholder 
mapping  rather  than  statistics-only,  in  order  to  avoid  bias  and  given  that 
operators formed the majority of respondents. Its results were fed throughout 
the document. The summary can be found in Annex II.   

individual  contributions 

The  variety  of  views  collected  thanks  to  those  consultations  contributed  to  the 
independence of the evaluation.  

mobile and fixed operations), differences between "incumbents'" and "alternatives'" points of view remain 
well articulated.  
30  https://ec.europa.eu/digital-single-market/en/news/summary-report-public-consultation-evaluation-and-
review-regulatory-framework-electronic  
31  https://ec.europa.eu/digital-single-market/en/news/full-synopsis-report-public-consultation-evaluation-
and-review-regulatory-framework-electronic 

21 

 
 
  
 
 
                                                                                                                                                
22 

 

Implementation reports 

The  findings  of  this  evaluation  also  build  on  the  implementation,  monitoring  and 
screening  exercises  run  by  the  EC's  Directorate-General  Communications  Networks, 
Content and Technology (DG CONNECT) on a regular basis.  Annual reports are issued 
by  DG  CONNECT  covering  market  and  regulatory  developments  in  electronic 
communications – Electronic Communications Implementation Reports, Digital Agenda 
Scoreboard, Digital Economy and Society Index. Beyond the data which is published in 
these  reports,  DG  CONNECT  databases  were  used  –  partly  collected  via 
Communication  Committee  surveys.  Further  data  collection  drew  on  exercises  ran  by 
other  EC  Directorate  Generals,  e.g.  DG  Justice  Scoreboard,  Consumer  Markets 
Scoreboard, Eurobarometer and other dedicated studies.   

Collation/Triangulation of evidence 

As  explained  above,  the  evaluation  was  done  per  regulation  area  rather  than  per 
Directive,  while  a  separate  exercise  covered  the  Directives  provision  per  provision.  A 
summary of the findings of the screening of the Directives is presented in Annex V.  

In  the  absence  of  an  extensive  macro-economic  model,  the  overall  contribution  of  the 
regulatory  framework  was  estimated  mainly  via  international  benchmarking.  A  full 
quantification in order to produce a meaningful model would have implied an extensive 
ex  post  data  collection  exercise  –  including  detailed  information  on  topology, 
seemed  unjustified  and 
demographics, 
disproportionate vis-à-vis the efforts which would have had to be required from various 
stakeholders  (Member  States  and  operators  mainly).  Moreover,  a  credible  counter-
factual situation would have been hard to establish, with the exception of few regulation 
areas, which on the other hand are linked to impacts which are difficult to quantify.    

infrastructure,  etc.  –  which 

legacy 

The evaluation of the specific regulation areas, including their contribution to high level 
outputs  was  supported  by  the  dedicated  studies  and  done  mostly  based  on  qualitative 
analysis (case studies, panels, interviews), with quantitative analysis for key policy areas 
such as access and spectrum regulation. The methods used depended to a large extent on 
the  nature  and  aim  of  the  provisions/regulation  area  analysed:  while  for  certain  policy 
areas the interest is to maximise (measurable) outputs such as the level of competition or 
the rollout of high performance networks, for other policy areas the focus is to measure 
relevance in order to sustain a necessary level of consumer protection, for which in depth 
qualitative analysis was required.  

The  robustness  of  the  findings  depends  on  the  sources  available  per  regulatory  area. 
Whereas  all  regulation  areas  were  covered  by  the  dedicated  studies,  the  depth  of  the 
analysis  per  area  is  variable.  In  any  case  evidence  could  be  triangulated,  thanks  to  the 
various implementation reports and pre-existing specific studies per area. Attention was 
paid also to what extent the evidence corresponds to the response obtained in the public 
consultation,  as  mapped  per  category  of  stakeholder.  Moreover,  the  findings  of  the 
evaluation  are  building  on  the  experience  (and  data  sets)  formed  throughout  the 
Commission  internal  monitoring  and  enforcement  exercises.  This  triangulation  is 
contributing  to  the  robustness  and  the  independence  of  the  findings  provided  in  this 
evaluation. 

Limitations 

22 

 
 
23 

The  evaluation  faced  some  limitations  in  the  collection  of  data,  whose  impact  was 
mitigated to a maximum possible extent: 

  A  limitation  in  the  evaluation  was  the  relatively  limited  set  of  quantitative 
analysis  and  modelling  –  linking  outputs,  results  and  impacts,  and  the  lack  of 
complete  datasets,  in  some  areas  of  regulation.  For  instance,  given  the 
multiplicity  of  factors  influencing  NGA  rollout  (e.g.  topography,  population 
density,  legacy  factors,  etc.)  few  of  the  correlations  yielded  positive  results. 
Moreover, in spite of the abundance of outcome indicators monitored throughout 
the  years,  due  to  factors  such  as  changing  technologies,  changing  market 
structures, it has been difficult to obtain comparable data sets covering the entire 
period evaluated.    
In the absence of reporting requirements imposed by the regulatory framework on 
Member  States  and  operators  regarding  administrative  costs  and  burdens,  the 
efficiency conclusions are qualitative, rather than based on actual calculations. 
  The  evaluation  takes  into  account  the  inherent  limitations  of  the  findings  of 
public  consultations.  Firstly,  as  in  all  surveys,  the  answers  received  reflect  the 
views  of  a  self-selecting  sample  of  relevant  stakeholders  and  not  those  of  the 
entire population who has a stake in this domain. Secondly, stakeholders' views 
convey an individual rather than a holistic perspective. This limitation was partly 
mitigated by stakeholder mapping. 

 

  The  wide  area  of  regulation  concerned,  and  the  diverse  nature  of  the  rules  in 
question,  make  it  challenging  to  assess  the  various  instruments  making  up  the 
regulatory  framework  in  the  same  exercise.  An  overall  model  aggregating  the 
impacts  into  an  overall  contribution  of  the  framework  could  not  be  delivered 
given resource constraints as well as lack of appropriate datasets.   

Based on the elements above, the evaluation has been carried out on the basis of the best 
available  data.  Whenever  reliable  quantitative  data  is  lacking,  this  is  indicated  as 
appropriate and possibly counter-balanced with qualitative data and considerations.  

6. STATE OF PLAY: IMPLEMENTATION & EVOLUTION OF THE SECTOR  

This section summarises the current situation on the state of implementation of the 2009 
regulatory  framework  for  electronic  communications  as  well  as  the  monitoring 
arrangements that are in place.  

6.1. Implementation of the regulatory framework 

The successful implementation of the 2009 revised regulatory framework (in force as of 
May  2011)  has  suffered  to  a  certain  extent  from  delays  in  its  transposition  across 
Member  States.  Non-communication  infringement  cases  had  to  be  opened  against  20 
Member  States  despite  bilateral  exchanges  and  sharing  of  best  practice  in  the 
Communications Committee (COCOM), which gathers the representatives of authorities 
responsible for electronic communication. While no case led to a judgment of the Court, 
this  has  undoubtedly  delayed  the  materialisation  of  benefits  stemming  from  those 
reforms. 

23 

 
 
24 

Generally speaking, once transposition measures had been put in place, implementation 
has  been  relatively  less  problematic.  Priorities  defined  by  the  Commission  for 
enforcement  have  included  in  particular  structural  issues.  The  functioning  and  the 
independence  of  the  national  regulatory  authorities,  as  well  as  the  EU  consultation 
procedure involving national regulatory authorities and the Commission, which aims to 
consolidate the internal market for electronic communications (the Article 7 procedure) 
as well as the revised consumer protection rules have received particular attention.  The 
defined  priority  areas  often  correspond  to  the  requirements  strengthened  in  the  2009 
framework,  such  as  independence  and  timeliness  of  market  reviews.  Spectrum 
enforcement has also gained in importance over the years, not least in view of delays in 
the  implementation  of  Commission  spectrum  harmonisation  or,  more  recently,  of  the 
2012 Radio Spectrum Policy Programme.  

Issues  around  the  authorisation  and  establishment  requirements  imposed  more  or  less 
explicitly  by  national  authorities  continue  to  raise  issues  of  conformity  with  the 
regulatory framework or, indeed, the TFEU. An area of concern for some years had been 
the  imposition  of  specific  'telecom  taxes'  on  providers  of  electronic  communications, 
deemed by the Commission in contradiction with the EU rules on administrative charges. 
The Court of Justice32 has however not accepted the interpretation of the Commission in 
this area. 

Exchanges  via  the  'EU  Pilot'  system33  have  often  been  successful  in  preventing 
infringements in a number of cases, for instance. Roughly three quarters of the cases on 
which  investigations  are  launched  are  successfully  resolved  at  that  stage.  However, 
implementation issues have not decreased over the years.  

The Commission monitors the correct application of the provisions contained in the EU 
regulatory framework, also via contacts with stakeholders and complaints received from 
EU citizens. The most important evolutions in the sector – both in terms of market and 
regulatory  developments  –  are  presented  in  annual  implementation  reports34.  Due  to 
limited monitoring arrangements with Member States, monitoring and data collection is 
challenging in  areas  such  as  network  deployment  or  the  scope  of  services  and  bundles 
available in the Member States. 

6.2. Evolution of the Sector35 

The  high  level  developments  of  the  sector,  as  presented  by  the  latest  annual 
implementation  reports  available  –  the  19th  monitoring  report  on  the  electronic 

32 Case C-485/11 Judgment - 27/06/2013 - Commission v France 
33 "EU Pilot" is an online platform which Member States and Commission's services use to communicate 
and clarify the factual and legal background of problems arising in relation to the conformity of national 
law with EU law or the correct application of EU law. As a general rule, EU Pilot is used as a first step to 
try to resolve problems, so that, if possible, formal infringement proceedings are avoided. Currently all 28 
Member States are participating in EU Pilot. 
34 
electronic-communications-2015  
35 Unless explicit references are made to different sources, the data in this section draws from the annual 
reports issued by the Commission, referred to in the text.  

https://ec.europa.eu/digital-single-market/en/news/implementation-eu-regulatory-framework-

See 

24 

 
 
                                                 
25 

communications  market  and  regulations  as  well  as  the  Digital  Economy  &  Society 
Index36 – are summarised below.   

It  is  important  to  read  them  against  the  main  technological  changes  and  trends  which 
took place.  The expectations formulated at the last review have been largely met by the 
evolutions during the past ten years: the migration to "all IP" has progressed throughout 
(although  it  is  completed  in  only  one  Member  State),  the  wireless  developments  have 
exceeded expectations with 4G as the main current technology, transition to digital TV 
completed in all Member States but one, fiber to the local loop has been deployed across 
the EU, triple-play (fixed-line telephony, internet, TV) and even quadruple-play (triple-
play plus mobile) services are across several Member States, the norm.  

The successive reports also note that bundled offers have become increasingly  popular 
throughout the EU, though at very different paces. During the last reporting period (one 
and a half years), the average penetration of bundled offers (subscriptions/population) in 
the  EU  has  increased  by  five  percentage  points  from  36  %  to  41  %  (July  2014).  The 
most common bundle combination was fixed voice with broadband services, although in 
some  countries  a  significant  number  of  end-users  tended  to  bundle  more  services 
together, including mobile and/or internet protocol TV (IPTV). 

Other trends which have become visible during the past (more recent) years are: (1) the 
remarkable  growth  of  online  (Over-the-Top)  services,  including  challengers  to 
traditional  communications  services,    e-commerce,  e-government,  digital  (video) 
content,  cloud  services,  and  the  emergence  of  the  Internet  of  Things  /  Machine-to-
Machine services, all leading to a rapidly increasing demand for bandwidth in both fixed 
and mobile networks; (2) the convergence of fixed and mobile networks at supply level, 
i.e. the increased reliance of mobile services on fixed networks, in particular through the 
backhauling of mobile networks, WiFi access points and low-power wide area networks 
solutions37. 

Concerning  the  evolution  of  competition,  the  market  share  of  the  incumbents  in  the 
fixed broadband market stood at 41% in 2014 (a drop from 56% in 2004). In the fixed 
voice telephony market the market share of incumbents dropped from 65.8% in 2004 to 
51.5% in 2013.  

36 See https://ec.europa.eu/digital-single-market/en/desi  
37 LoRa, Sigfox or Zigbee, for instance. 

25 

 
 
                                                 
26 

Figure 2 Fixed broadband subscriptions – operator market shares at EU level, January 2006 – July 2015 

Figure 3 Fixed broadband subscriptions – operator market shares, July 2015 

The above results are in line with main goals of the regulatory framework, namely the 
safeguarding  of  competition  and  promotion  of  efficient  investments  in  new  and 
enhanced infrastructures (Article 8 of Framework Directive).  

Reasons  for  this  decline  of  the  market  share  of  incumbents  vary.  In  some  Member 
States, such as Romania, there has been substantial infrastructure new-build; in several 
others, this decline is attributable to a large extent to the rise of cable; in yet others, it 
reflects the strong influence of regulated wholesale access. 

However, the decrease in incumbents' market share has slowed down significantly over 
the past few years and significant differences persist among the Member States with the 
incumbent's market share ranging from 23% in Bulgaria to 69% in Luxembourg as can 
be seen in the table above.  

Telecom  network  CAPEX  in  Europe  was  43  bn  EUR  in  2013.  CAPEX  figures  have 
remained relatively stable over the last four years despite the fact that in the same period 

26 

 
 
 
 
27 

NGA coverage increased from 29% to 68%. Mobile CAPEX spending represented 59% 
of total spending38.  

However,  the  capital  expenditure/revenue  ratio  is  a  better  measure  of  assessment  of 
capital expenditure.  In  a  context  of declining  revenues in  the  sector,  there  has  been an 
increase  in  this  ratio,  from  11.7%  in  2009  to  14%  in  2013.  In  other  words,  telecom 
operators increased the proportion of their investment through the period. 

During  the  past  years,  telecom  revenues  in  the  EU  have  gone  down:  from  246  billion 
euro  in  2010  to  230  billion  euro  in  2014,  a  decrease  of  6%.  At  the  same  time  the  US 
progressed  from  220  billion  euro  to  266  billion  euro  -  surpassing  Europe  despite  the 
lower population in the USA. There have been large increases in emerging markets such 
as China and India, which are in a significant growth phase due to the still relatively low 
take up of telecom services.  

In Europe, while the effect of regulated reduction of termination rates cannot be ignored, 
decreasing  revenues  probably  show  how  voice  services  have  continued  to  lose 
importance, while the growth in mobile data services was remarkable (36% from 2010 to 
2014),  though  however  not  monetised  in  a  similar  proportion.  Other  factors  might 
explain the decreasing revenues in the past years, for instance the rise of Over-the-Top 
players (online and free communications services) or external factors such as a stagnant 
macro-economic  environment.  A  study  on  future  trends  and  business  models  in 
communications  services39  shows  that  there  is  a  significant  difference  between  their 
impact on decreasing revenues on fixed revenues as opposed to their impact on mobile 
revenues.  The  rising  popularity  of  online  providers  has  had  no  statistically  significant 
impact  on  fixed  revenues.  However  mobile  revenues,  which  are  currently  the  largest 
share  in  the  telecom  revenue  mix,  are  largely  influenced  by  the  popularity  of  OTT 
communication  platforms,  as  well  as  by  the  level  of  mobile  termination  rates,  and  the 
average  GDP  per  capita.  Other  sources  provide  even  higher  figures,  estimating  that  in 
2014 alone instant messaging services on mobile phones would have carried more than 
twice  the  volume  (50  billion  versus  21  billion  per  day)  of  messages  sent  via  a  short 
messaging service (SMS)40. Average revenue per user of the top seven mobile operators 
in the EU would have gone down 34.8% between 2006 and 2013, with a 5% decrease in 
investment41. It is expected that OTT messaging will dominate messaging towards 2020 
approaching  90%  of  the  total  messaging  market,  and  that  OTT  Voice  and  Messaging 
will continue to affect revenues from traditional telecommunication services42. 

In  terms  of  network  rollout  fixed  broadband  coverage  in  the  EU  stands  at  97%  of 
homes  (from  86.9%  in  2005),  with  an  average  take-up  rate  of  72%43  (from  24.9%  in 

38 Digital Agenda Scoreboard 2015 
39 SMART 2013/0019 
40  Deloitte:  Short  messaging 
http://www2.deloitte.com/content/dam/Deloitte/au/Documents/technology-media-
telecommunications/deloitte-au-tmt-short-messaging-services-versus-instant-messaging-011014.pdf  
41 Mazars - Etude Télécom mai 2015 
42 Over-the-Top players (OTTs), Study for the IMCO Committee, WIK, 20015 
43  Source:  European  Commission,  draft  2016  Digital  Progress  Report  (measurement  representing  the 
percentage of households with broadband subscriptions).  

instant  messaging:  value  versus  volume 

services  versus 

27 

 
 
                                                 
28 

2005). NGA coverage (at least 30 Mbps) is at 71% of homes, with a take-up rate of 30% 
of homes passed with an active subscription.  

However,  NGA  deployments  still  focus  mainly  on  urban  areas,  with  only  27.8%  of 
rural  homes  covered  (overall  fixed-line  broadband  coverage  in  rural  areas  is  90.6%). 
NGA deployments differ greatly also among Member States: from 36 to 44% in Greece 
and Italy to 100% in Malta and over 95% in Lithuania, the Netherlands and Belgium. In 
terms  of  uptake,  the  spread  is  even  broader  with  penetration  rates  of  2.6%  in  Croatia, 
4.2% in Greece, to 57% in Malta, 51.3% in Belgium, and above 40% in the Netherlands, 
Bulgaria and Lithuania. Substantial gaps can be noticed within most Member States also 
between rural and urban NGA penetration rates. 

Regarding ultrafast broadband, i.e. above 100 MB/s, the figures are more conservative, 
with  only  25%  of  EU  homes  having  access  to  networks  offering  such  download 
capacity,  and  only  10.8%  of  EU  homes  having  an  active  subscription.  Moreover, 
according  to  recent  estimates  conducted  by  WIK  and  IDATE44,  it  seems  that  several 
Member States will miss the Digital Agenda for Europe (DAE) broadband target of 50% 
of homes with a subscription of at least 100 MB/s. 

Figure 4 Mobile broadband penetration at EU level, January 2009-July 2015 

As regards mobile broadband, household coverage was 97.6% in 201545 and the take-
up rate is 75% of the population (from 13% in December 2008, see figure above).  After 
a late start, LTE46 is running now at full scale and its coverage is increasing – from 8.3% 
in 2011 to 85.9% in 2015 with ten Member States reaching more than 90% of the homes. 
4G  services  have  been  launched  in  all  Member  States.  LTE  deployments  too  have 
focused so far on urban areas, as only 36.3% of rural homes are covered.  

44 Source: Study on "Regulatory, in particular access, regimes for network investment models in Europe, 
interim results, March 2016, by WIK, IDATE and Deloitte 
45 3G coverage was 74.4% in December 2008 (DAE indicators).  
46  LTE  stands  for  Long  Term  Evolution  and  is  a  more  recent  standard  for  the  wireless  data 
communications technology, a development of the GSM/UMTS standards.  

28 

 
 
 
                                                 
29 

The prices of electronic communications services, including broadband prices, dropped 
significantly  in  the  EU.  Despite  a  stabilisation  in  prices  between  2013  and  2014, 
broadband  prices  in  the  EU28  have  fallen  significantly  between  2012  and  2015, 
especially in the 30-100 Mbps speed category. The prices of offers with speeds over 100 
Mbps declined in recent years, closing the price-gap to the 12-30 Mbps offers.  

Broadband retail prices (EUR PPP) – Standalone offers, 2009-2015 

12Mbps-30Mbps

30Mbps-100Mbps

45
40
35
30
25
20
15
10
5
0

Source: Van Dijk, Broadband Internet Access Cost (BIAC)  

2009

2011

2012

2013

2014

2015

Figure 5 Broadband retail prices, standalone offers 

However,  broadband  access  prices  remained  dispersed  across  Europe:  the  minimum 
prices  (calculated  on  Purchasing  Power  Parity)  vary  between  €11  and  €69  for  a 
standalone offer with a download speed between 30 and 100 Mbps. The minimum prices 
were the lowest in Lithuania (€11), Bulgaria (€13) and Romania (€13) and the highest in 
Cyprus  (€69),  Luxembourg  (45€)  and  Malta  (€42).  In  Italy,  Greece,  Cyprus,  Slovenia 
and Croatia, fast broadband (at least 30Mbps) is still rare, representing less than 10% of 
all  subscriptions.  The  average  minimum  price  of  standalone  offers  of  30  to  100Mbps 
decreased from €41 in 2009 to €28 in 201547. 

This trend can also be seem when assessing the price data for bundled offers, typically 
comprising broadband, fixed telephony and TV services. 

47 Source; digital agenda scoreboard, connectivity pillar, broadband market developments 2015 
https://ec.europa.eu/digital-single-market/en/connectivity  

29 

 
 
 
                                                 
30 

Figure 6 Broadband retail prices – bundles including broadband, fixed telephony and tv 

In 2015, the minimum prices of triple play bundles including broadband access (with a 
download  speed  between  30  and  100  Mbps),  fixed  telephony  and  television  vary 
between  €24  and  €66  in  the  EU.  The  minimum  price  was  the  lowest  in  France  (€24), 
Bulgaria  (€26)  and  Finland  (€27)  and  the  highest  in  Cyprus  (€66),  Malta  (€62)  and 
Croatia (€61). Prices have decreased over time, with the average minimum going down 
from  €76  in  2009  to  €45  in  2014.  High-speed  triple  play  offers  have  very  low  price 
premium over 12-30Mbps services 

These  differences  create  inequalities  across  the  EU:  the  correlation  between  fixed 
broadband take-up and the relative price of broadband access is negative, so broadband 
take-up tends to be lower in countries where the cost of broadband access represents a 
higher  share  of  the  income.  Moreover,  the  Digital  Agenda  Scoreboard  data  show  how 
only 49% of homes in the lowest income quartile have a fixed broadband subscription as 
opposed to 89% in the highest income quartile, and the overall average of 70%.  

Overall, communications represented 2.5% of the final consumption expenditure of EU 
households  in  2014,  down  from  2.9%  in  2002,  while  for  instance  the  share  of 
expenditure devoted to housing, water, electricity, gas and other fuels has increased from 
20.8% to 24.4% in the same period. Prices for communications services decreased every 
year between 2006 and 2015 at an average rate of 1.44%48. 

The  above  figures  on  prices  have  to  be  seen  along  with  the  growth  in  consumption  of 
telecoms services and digital services, which has significantly increased over the last few 
years. For instance, the percentage of individuals using the internet frequently, i.e. every 
day  or  almost  every  day  jumped  from  22.6%  in  2004  to  67.4%  in  2015;  29.2%  of 
individuals used the internet to make phone or video calls, up from only 2.9% in 2004.  

The  various  regulatory  developments  captured  by  the  implementation  reports  will  be 
discussed below, under the assessment of each regulation area.   

48  HICP  for  communications  (CP08,  Communications,  includes  Postal  services,    Telephone  and  telefax 
equipment and services and telephone and telefax equipment).  

30 

 
 
 
                                                 
31 

7. ANSWERS TO THE EVALUATION QUESTIONS 

This  section  summarises  the  main  findings  in  relation  to  the  analysis  of  each  of  the 
questions set out in section 4. Most questions are dealt with individually, although a few 
have  been  combined,  where  there  are  significant  overlaps  in  information  justifying  a 
unified  approach.  Where  appropriate,  the  views  of  stakeholder  groups collected  during 
the  stakeholder  consultation  are  presented  below.  Annex  II  presents  a more  systematic 
overview of the responses, per stakeholder group,  to  the  evaluation  questions raised in 
the public consultation.  

7.1. Relevance 

The  section  below  evaluates  to  what  extent  the  general  specific  objectives  of  the 
regulatory  framework  for  electronic  communications  and  its  regulation  areas  (its  main 
blocks  of  provisions)  are  still  relevant  and/or  if  new  objectives  have  developed  that 
should be pursued. 

7.1.1. Relevance of the current objectives of the regulatory framework 

In  a post-liberalisation era, the  general objective of the 2002 regulatory framework for 
electronic  communications  was  to  promote  a  competitive  internal  market,  aiming  at 
delivering  diverse,  innovative,  and  affordable  electronic  communications  to  consumers 
and  businesses.  The  2009  review  provided  additional  tools  to  respond  to  the  need  to 
ensure  more  effective  competition,  consolidate  the  internal  market  and  strengthen 
consumer  rights  and  therefore  did  not  change  the  three  main  specific  objectives  of  the 
framework.  

To  what  extent  are  the  original  specific  objectives  of  the  framework  -  to  promote 
competition, to develop the internal market, and to protect the interests of EU citizens - 
still relevant? To what extent do they still correspond to the needs and problems within 
the EU and in relation to the emerging needs of the sector?  

The competition objective 

Where conditions49 exist for the creation of a competitive market, this is the best option 
to  deliver  end-user  benefits, 
including  connectivity.  Effective  and  sustainable 
competition drives efficient investment and fuels the development of the internal market. 
It  ultimately  serves  the  interests  of  end-users,  by  inducing  innovation  and  providing 
maximum  benefit  in  terms  of  choice,  price  and  quality.  As  shown  in  the  stakeholder 
consultation, the regulatory community shares that view, based on their experience with 
implementing the regulatory framework so far50.  

49 Demographic, socio-economic, geographic, etc.  
50  See  BEREC  opinion  and  individual  replies  by  the  national  regulatory  authorities  to  the  public 
review: 
consultation 
http://berec.europa.eu/eng/document_register/subject_matter/berec/opinions/5577-berec-opinion-on-the-
review-of-the-eu-electronic-communications-regulatory-framework  

the 

on 

31 

 
 
                                                 
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While the achievements of the framework in terms of service - but also to some extent 
infrastructure  competition  are  undeniable,  as  discussed  below  in  section  7.2.2.,  a  lot 
remains  to  be  done  to  improve  consumer  choice,  in  particular  with  regard  to  access  to 
high-speed connectivity throughout the entire European Union. The figures presented in 
section  6.2  show  that  investment  has  been  uneven  across  the  EU  and  clear  gaps  have 
begun  to  emerge  between  and  within  different  countries  in  the  path  to  upgrading 
broadband networks to provide ultrafast speeds and meet increasingly demanding quality 
parameters. At the same time, it is essential that consumers have attractive service offers, 
and  wherever  possible,  choice  so  that  take-up  follows  investments  and  that  the  digital 
society is actually realised.  

that  some  Member  States, 

The  public  consultation  showed 
the  European 
Telecommunications Network Operators' Association (ETNO) and the large majority of 
the incumbents go as far as suggesting, via the public consultation conducted in light of 
the  review,  that  investment  should  be  made  an  explicit  objective,  next  to  competition, 
given the significant network rollout and upgrade needs in the coming years. This would 
imply  amending  the  regulatory  framework,  among  others  access  regulation,  to  favour 
dynamic  efficiency  gains  over  static  ones.  In  areas  where  infrastructure  competition  is 
not  viable,  competition  would  be  "for  the  market"  rather  than  "in  the  market".  Many 
other  stakeholders  including  alternative  operators  and  consumer  associations  stress,  on 
the other hand that competition would not survive outside the regulatory framework and 
that the latter should not favour investment at the expense of competition (and thereby 
also at the expense of the consumer outcomes that go along with competition).  

Furthermore,  pursuing  the  competition  objective  should  take  into  account  the  new 
internet based services or Over-The-Top (OTT) players which are currently outside the 
scope  of  intervention  of  the  regulatory  framework    (though  there  are  divergences  of 
approach  as  to  the  dividing  line)  and  which  would  have  partly  disrupted  the  business 
models of "traditional" electronic communication providers. For many stakeholders who 
participated  in  the  public  consultation  (virtually  all  traditional  operators  and  some 
authorities)  all  competition  should  occur  within  a  level  playing  field  between 
"traditional" and "new" service providers.     

Regardless  of  these  nuances  and  with  the  necessary  modulations  to  achieve  fit-for-
purpose  and  sustainable  outcomes,  pursuing  the  competition  objective  remains  as 
relevant as ever.    

The single market objective 

The  single  market  objective  is  becoming  even  more  relevant  in  the  Commission's 
priority concerning the Digital Single Market51. The regulatory framework is expected to 
help  deliver  connectivity  in  support  of  the  Digital  Single  Market.  Indeed,  as  modern 
economies increasingly depend on electronic communications for their daily operations 
in a digital single market, seamless provision of connectivity across borders is becoming 
a  prerequisite.  In  other  words,  the  further  pursuit  of  the  Single  Market  is  necessary  to 
ensure that the entire EU is "levelled up" in terms of connectivity.   

51 See http://ec.europa.eu/priorities/digital-single-market_en  

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Many  services  cannot flourish or can even not be  provided at all across the EU unless 
the  connectivity  conditions  are  sufficiently  harmonised  everywhere.  The  extraordinary 
growth  potential  of  the  so-called  Internet  of  Things  services  on  a  potential  market  of  500 
million consumers depends on a rapid and coordinated rollout of 5G networks, which in turn 
depends  on  coordinated  spectrum  release  and  on  consistent  policy  on  license  free 
spectrum52.  As  an  illustration,  the  relevance  of  ubiquitous  connectivity  in  the  single 
market further increases as a consequence of the evolution of mobile connected ‘things’ 
including  cars,  which  presents  additional  challenges  for  roaming  and  the  cross-border 
use of numbers.   

Moreover,  many  online  businesses  such  as  e-commerce,  e-trading  the  profitability  of 
which  is  largely  scale-based,  cannot  develop  unless  there  is  high  quality,  widespread 
connectivity  in  place  across  the  EU.  Electronic  communications  is  a  strategic  sector 
which  directly  contributes  €168.62  bn  of  European  value  added  and  1.06  million  jobs 
(around 1.3% GDP and 0.47% of total employment in 2012), with a labour productivity 
per  person  of  more  than  144  thousand  euros  (the  highest  rate  within  the  ICT  sector)53 
and supports a wide range of other high-tech manufacturing and digital services (the ICT 
sector  constitutes  4%  GDP  and  2.76%  of  EU  jobs,  with  a  labour  productivity  rate 
44.45% higher than total labour productivity) as well as the economy as a whole.54 Poor 
connectivity would thus imply a GDP loss.  

Similarly, providing online services of public value (e-government, e-health, e-learning 
etc.)  in  a  situation  where  some  parts  of  the  EU  do  not  benefit  from  sufficient 
connectivity  and  up  to  date  electronic  communications  services,  would  result  in  an 
increasing digital and social divide.   

However, significant bottlenecks remain in the provision of electronic communications 
services across the EU, as discussed below in section 7.2.2. As the public consultation 
shows,  while  for  some  stakeholders,  such  as  the  European  Consumer  Organisation 
BEUC  or  operators  focused  on  national  markets,  the  lack  of  an  internal  market  in  the 
electronic  communications  sector  as  such  may  not  be  a  central  concern,  business  end-
users  seeking  to  procure  telecom  services  across  multiple  sites  and  countries  have 
perceived  the  considerable  relevance  of  this  issue.  In  short  for  business  end-users  and 
particularly  multi-national  corporations,  the  current  ‘spiders-web’  of  networks  and 
services presents significant challenges.  Amongst  other issues,  business users cite long 
and  unpredictable  provisioning  times,  patchy  availability  of  high  bandwidth  (Ethernet) 
connectivity outside cities, as well as a lack of transparency and consistency in ‘quality 
of service’ measures as key issues affecting their ability to support their respective core 
businesses55.  

for 

the 

See 

example 

Ericsson 

52 
https://www.ericsson.com/res/docs/2016/ericsson-mobility-report-2016.pdf   
53 http://is.jrc.ec.europa.eu/pages/ISG/PREDICT/documents/PREDICT2015.pdf  
54 There is a wide range of literature linking broadband diffusion to GDP growth. 
55  See  interviews  with  members  of  the  end-user  organisation  INTUG  in  the  2015  study  "Access  and 
Interoperability  Standards  for  the  Promotion  of  the  Internal  Market  for  Electronic  Communications", 
December  2015,  available  at  https://ec.europa.eu/digital-single-market/en/news/investigation-access-and-
interoperability-standards-promotion-internal-market-electronic  

Mobility 

Report 

2016), 

(June 

33 

 
 
                                                 
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As expressed in the public consultation, a lack of an effective internal market also affects 
equipment manufacturers and multi-national telecom providers, which seek to replicate 
business  models  in  multiple  markets.    Some  cross-border  providers  also  highlight  that 
the  impact  of  fragmentation  does  not  only  affect  business  services,  but  also  impedes 
their ability to make consistent offerings in residential broadband markets and delays the 
‘time to market’56.  

Most  importantly,  a  lack  of  effective  internal  market  eventually  affects  businesses  at 
large (irrespective of their size) and citizens too. The consistency exercises and exchange 
of  best  practice  enabled  by  the  various  institutional  provisions  introduced  by  the  2009 
review57 have, to a certain extent, resulted in the promotion and proliferation of "best in 
class"  regulatory  models  and  examples  concerning  the  access  regime  that  would  yield 
the best possible outcomes in terms of competition and NGA. However, lacking binding 
power, they have failed to ensure harmonisation of certain regulatory solutions/remedies, 
to the detriment of the achievement of the single market but also limiting the effect of 
promoting  best  practice  regulatory  models58.  The  case  of  the  termination  rates  is  an 
illustrative  example  of  the  strengths  and  limits  of  the  procedure  aimed  at  ensuring 
consistency.  The  implementation  of  the  Commission's  2009  Termination  Rates 
Recommendation has led to significantly lower termination rates across the EU followed 
in  most  cases  by  lower  prices  for  end-users,  as  confirmed  by  internal  monitoring 
exercises.  However,  a  small  number  of  deviations  from  the  recommended  approach 
remain (for mobile termination: Germany, the Netherlands, Finland; for fixed: Belgium, 
Cyprus, Germany, Finland, the Netherlands, Poland). Other examples of areas where the 
need  for  greater  consistency  was  recognised  relates  to  the  imposition  of  non-
discrimination  remedies  and  price  controls  (costing  methodologies),  where  the 
Commission  issued  a  recommendation59.  Similarly,  BEREC  issues  its  guidelines  and 
common positions in  view to  achieve greater consistency of  measures implemented by 
European NRAs.60 These recommendations and guidelines remain however non-binding, 
and  albeit  contributing  to  increased  consistency  (as  revealed  by  the  analysis  of  the 
measures in place in Member States), they are not an instrument to ensure it.   

It  follows  that  further  simplification  and  effective  harmonisation,  with  the  necessary 
built-in  flexibility,  appears  necessary  to  ensure  that  the  most  appropriate  remedies  are 
applied leading  to  a quicker realisation  of the overall objective  of seamless,  affordable 
connectivity across the EU.  

56 The impact of fragmentation on mass-market broadband services is discussed in the 2015 study ‘Access 
and  Interoperability  standards’,  which  highlights  that  multiple  parallel  processes  for  the  definition  of 
VULA  (a  substitute  to  physical  unbundling  of  the  copper  local  loop  in  at  least  some  types  of  NGA 
networks) may have contributed to increased costs, and delayed the effective introduction of this product 
as a means to promote competition in NGA networks.56  
57 Survey organised by BEREC among its NRA members in view of the current review exercise  
58 As confirmed by the study "Regulatory, in particular access, regimes for network investment models in 
Europe" (SMART 2015/0002)  
59 Commission Recommendation of 11 September 2013 on consistent non-discrimination obligations and 
costing  methodologies  to  promote  competition  and  enhance  the  broadband  investment  environment, 
2013/466/EU, OJ L 251/13. 
60  See  for  example  Revised  BEREC  common  position  on  best  practice  in  remedies  on  the  market  for 
wholesale broadband access, BoR(12)128. 

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The objective of promoting the interests of end-users 

As  electronic  communications  services  and  connectivity  as  the  basis  for  all  e-services 
are  becoming  so  important  in  modern  societies,  ensuring  access  for  all,  as  well  as 
allowing  end-users  to  benefit  from  the  intensified  competition  in  the  sector,  is 
increasingly  essential.  For  this  reason,  the  objective  of  promoting  the  interests  of  end-
users, including by ensuring universal access to connectivity or by other forms of safety 
nets, remains highly relevant, with certain components becoming even more central.  

However, while the objective of protecting end-users remains relevant, the relevance of 
the specific provisions which are  aimed at achieving  it should  be  examined in view  of 
market, technological and regulatory developments. For instance, certain elements which 
form  part  of  the  current  universal  service  arrangements  might  have  become  redundant 
(e.g.  payphones).  The  relevance  of  each  regulation  area  is  discussed  below.  Finally,  it 
cannot be ignored that despite improvements in market performance registered through 
the  Consumer  Market  Scoreboards  from  2010  to  2016,  consumers  evaluate  the  sector 
still below the average of the services markets covered by the Scoreboard, as discussed 
below. It should however be noted that the market performance indicators are relative to 
the  many  (29)  services  covered  in  the  Scoreboard,  including,  not  only  utility  and 
network  industries  but  also  recreational  services.  At  the  same  time,  successive  Special 
Eurobarometer  surveys  more  specifically  dedicated  to  electronic  communications 
services  evaluate  the  sector  as  average.  In  any  event,  it  remains  relevant  to  pursue 
consumer  interests  explicitly,  not  only  as  a  matter  of  outcome  of  competition  on  the 
Single Market.    

7.1.2. Relevance of regulation areas 

Are all the regulation areas still relevant in reaching the objectives identified as being 
still relevant? How do the main stakeholders perceive this relevance?  

The section below discusses the relevance of the regulation areas evaluated, linking them 
to the objectives of the framework (competition, single market, end-user protection).    

The relevance of access regulation is to be seen in relation to its importance to ensure 
competition  on  the  market.  The  rationale  behind  the  imposition  of  access  regulation 
relies on the presence of bottlenecks in the networks that cannot be easily replicated by 
access  seekers  to  an  incumbent's  network.  In  the  EU,  many  NRAs  have  found  that 
incumbent operators have still Significant Market Power in the provision of ‘wholesale 
local  access’s  services  and  typically  also  access  used  for  the  provision  of  business 
services. This is even more important in areas where no second infrastructure is present 
(no  infrastructure  competition),  such  as  rural  areas  where  due  to  lower  density,  the 
business case is not strong enough to support more than one network and where telecom 
networks are effectively natural monopolies. 

2011 

2012 

2013 

2014 

2015  

Incumbent market share fixed 
broadband (% of subscriptions)  

43 % 

42 % 

42 % 

41 % 

41% 

Figure 7  Decrease of fixed broadband market share of incumbent operators 

35 

 
 
  
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Access regulation is imposed by national regulators in each of the 28 EU Member States 
and key fixed access markets are regulated in accordance with EU principles, to different 
degrees,  in  each  of  the  28  EU  Member  States.  In  many  EU  markets,  access  seekers 
relying on access regulation make electronic communication markets more competitive. 
The importance of access regulation for entry and competitiveness of access seekers can 
be  demonstrated  by  excluding  the  share  of  cable  providers  (which  typically  have  their 
own  exclusive  infrastructures  and  do  not  rely  on  access  to  the  incumbents  networks) 
from  the  market  share  of  new  entrants.  While  the  EU  average  market  share  of  cable 
providers has been growing steadily (currently standing between 18 and 19%, with a few 
Member States like Belgium, the Netherlands and Malta where cable presence is more 
important),  it  still  represents  less  than  a  third  of  the  combined  market  share  of  new 
entrants, the vast majority of which rely to various degrees on access to the networks of 
incumbents.  Similarly,  the  importance  of  access  regulation  is  even  augmented,  if  the 
above  market  share  calculation  would  not  take  into  account  Member  States  such  as 
Bulgaria,  Romania,  the  Czech  Republic,  and  the  Baltic  states,  where  the  competition 
comes  from  newly  built  "leapfrog"  infrastructures,  and  is  not  based  on  Local  Loop 
Unbundling.  

It  follows  that  access  regulation  remains  one  very  relevant  regulation  area  of  the 
regulatory framework - of high relevance to both the competition and the Single Market 
objectives.  A  vast  majority  of  stakeholders  in  all  Member  States  and  over  70%  of  the 
respondents to the public consultation confirm that access regulation remains a sine qua 
non condition for ensuring competition on the market.  

Spectrum  management  is  as  relevant  as  network  access  regulation  to  the  extent  that 
spectrum is an essential input for electronic communications services. Spectrum is a core 
enabler for the deployment and development of current and next generation mobile and 
fixed  wireless  networks  (e.g.  4G)  across  the  EU.  The  demand  for  powerful  mobile 
technology has grown over time in the EU. While 3G networks in 2005 covered 40% of 
the EU population, they reached 77% in 2008, 95% in 2011 and 98% in 2015. Mobile 
Internet  use  over  3G  rose  from  12%  in  2011  to  43%  in  2015.  4G  technology,  with  its 
vastly improved data rates, reached only 31% of the EU population in 2011 (when 3G 
provided for 96% population coverage), before climbing to 77% in 2014, and reaching 
84%  coverage  in  2015.  In  addition  to  affecting  deployment,  the  manner  in  which 
spectrum is allocated and the conditions attached to spectrum assignment and usage, are 
also  major  determinants  of  mobile  competition,  which  in  turn  influence  quality  of 
service, prices, speed of roll-out and take-up of mobile broadband.  

With the deployment of 3G and 4G, spectrum has been exploited much more intensely, 
as  illustrated  by  the  increase  in  the  use  of  mobile  broadband  services  in  the  EU.  As  a 
European  Parliament  report  points  out,  “the  tremendous  expected  increase  of  mobile 
data  traffic  in  Europe  -  from  0.98  Exabytes  per  month  in  2015  to  7.23  Exabytes  per 
month  in  2020,  with  a  CAGR  2015-2020  of  49.2  percent  (Cisco,  2016)  -  represents  a 
substantial  challenge  to  the  current  spectrum  allocation  and  assignment  that  must  be 
addressed  through  better  spectrum  management  and  governance  policies”.61  This  point 
has also been strongly supported by the respondents to the public consultation.  

61 European Parliament, Reforming EU telecoms rules to create a Digital Union, 2016 

36 

 
 
                                                 
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Responses  to  the  public  consultation  acknowledge  the  importance  of  wireless 
connectivity  and  wireless  broadband,  and  its  link  and  complementarity  to  a  very  high 
capacity fixed connectivity. Industry is supportive of a more co-ordinated approach and 
looks  for  additional  certainty  in  investment  and  possibilities  to  develop  throughout  the 
EU  new  wireless  and  mobile  communications  including  5G.  Member  States  generally 
underline  the  achievements  in  the  field  of  technical  harmonisation,  and  the  need  for 
additional  coordination  to  be  bottom-up  and  voluntary;  some  of  them  call  for  a  better 
balance  between  harmonisation  and  flexibility.  There  is  widespread  recognition  of  the 
importance of more flexible access and use of spectrum in the future from both operators 
and public authorities, although disagreeing about how to realise this. 

The importance of spectrum management is therefore increasing together with the rise of 
the mobile connectivity demands  – for both "core" electronic communications services 
and  services  belonging  to  the  so-called  "internet  of  things"  (machine-to-machine 
communications,  M2M).  The  need  to  tackle  spectrum  management  at  EU  level  is thus 
directly linked to the need to support the Digital Single Market. There is also a need to 
support a European lead in 5G roll-out, by spectrum rules which are fit for purpose. 85% 
of  the  respondents  to  the  review  public  consultation  confirmed  that  the  regulatory 
framework is particularly necessary in the area of management of scarce resources, and 
there  is  large  consensus  amongst  incumbents  and  alternatives,  large  and  small,  and 
BEUC that further harmonisation at EU level would be beneficial. Spectrum regulation 
continues to have a significant impact on competition and the Single Market. 

The need for provisions concerning the management of numbers is increasing with the 
rise  of  M2M  services  which  are  expected  to  drastically  increase  the  demand  for 
numbers, often for cross-border use. Number management impacts competition as well 
as,  increasingly,  the  Single  Market.    The  public  consultation  showed  a  high  level  of 
consensus  that  to  cope  with  the  numbering  needs  of  M2M  in  the  future,  a  clear 
framework  for  extra-territorial  use  of  numbers  is  necessary  to  ensure  sufficient 
numbering  resources.  As  far  as  the  relevance  of  market  entry  provisions  is  concerned, 
the situation is uneven. The provisions on rights of way have been quite relevant in the 
period  of 
the  electronic 
communications markets, i.e. in the aftermath of the abolition of the special rights of the 
state owned incumbents. It ensured that alternative operators may deploy their networks 
under  the  same  transparent  conditions  as  former  monopolists  and  in  a  timely  manner, 
and  put  an  end  to  discrimination  in  favour  of  state  owned  incumbents.  In  view  of  the 
transition to high-speed networks, and notably mobile services provisioning via the latest 
technologies  requiring  more  granular  network  topologies,  these  provisions  today  fully 
retain their relevance. 

from  state  monopoly 

to  competition 

transition 

in 

The  relevance  of  the  provisions  concerning  authorisation  remains  unchanged,  as 
confirmed by the respondents to the public consultation (61% of those who responded to 
the relevant question consider that regulation is important in the area of authorisation, in 
particular  in  view  of  simplifying  the  current  rules).  Market  entry  provisions  are  key 
elements to support competition and the Single Market.  

As far as the functioning of the national regulatory authorities (NRAs) is concerned, 
the need for impartial, transparent and timely regulation was essential in the context of 
liberalisation. The need for an impartial and independent referee remains as relevant on 
liberalised  markets  as  it  has  been  in  the  past.  This  role  is  not  questioned  in  the  public 

37 

 
 
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consultation;  on  the  contrary,  the  public  consultation  showed  overall  support  for 
strengthening NRAs' independence. The relatively high number of issues which arose in 
the  implementation  of  the  provisions  –  matched  by  an  intensive  monitoring  and 
enforcement  activity  by  the  Commission  –  shows  their  persisting  relevance  and 
importance,  both  preserving  and  advancing  competition  on  the  Single  Market  and  for 
ensuring that consumers fully reap the benefits of market developments.  

As far as the role and functioning of other important institutional players is concerned, 
BEREC  must,  in  accordance  to  the  provisions  in  force,  pursue  the  objectives  of  the 
framework and in particular ensure a consistent application of the framework in order to 
contribute to the development and better functioning of the internal market. Against this 
objective  and  its  increasing  number  of  tasks62,  BEREC's  relevance  is  increasing,  even 
though  there  was  no  consensus  in  the  public  consultation  on  the  way  to  reflect  this 
increase in regulatory terms.  

Similarly, the capability of the Radio Spectrum Policy Group (RSPG) to deliver high-
level  strategic  advice  at  the  right  point  in  the  process  to  support  forward-looking 
decision making of the Commission and of the other EU institutions will be increasingly 
important,  against  a  background  where  spectrum  policy's  relevance  is  increasing.  The 
public consultation showed that a common EU approach to governing spectrum access is 
welcomed by respondents in order to enable technologies to be used seamlessly, but that 
respect  for  spectrum  as  a  national  asset  is  required.  Some  respondents  promoted  a 
stronger role of the Commission. Some respondents disagreed and stressed the national 
character of spectrum policy. 

Standardisation  is  aimed  at  ensuring  interoperability  of  services  (including  emerging 
services) and to improve freedom of choice for users. The voluntary and market-driven 
approach  to  standardisation  has  been  supported  by  most  stakeholders  in  the  public 
consultation.  It  remains  therefore  of  crucial  importance  for  both  effective  competition 
and the functioning of the Single Market as well as to promote the interest of end-users. 
It  can  be  argued  that  the  relevance  of  standardisation  efforts  is  increasing  with  the 
diversification of new services.   

The  concept  of  universal  service  as  a  safety  net  is  a  tool  to  ensure  that  all  citizens 
(including  low-income  and  disabled  or  elderly  users,  for  instance)  are  included  in  the 
digital society. While the objective of the provisions/regulatory area is just as relevant as 
ever,  some  of  its  components  have  lost  relevance  in  the  context  of  market  and 
technological developments (e.g. the non-use of 88% across the EU28 regarding public 
payphones63). Moreover, the need to impose certain services has disappeared as they are 
provided  by  the  market  (e.g.  every  country  without  a  universal  service  obligation 
regarding comprehensive directories or directory enquiry services noted the availability 

62  As  part  of  the  recently  adopted  Regulation  2015/2120,  BEREC  has  been  assigned  additional  tasks  in 
particular in relation to net neutrality and roaming, which are very relevant for market players and end-
users.  
63  Special  Eurobarometer  Report  414,2014,  p.153.  However,  it  should  be  noted  that  unlike  public  pay 
phones, mobile telephony is not regulated for accessibility. To tackle such issues and in order to improve 
the functioning of the internal market for accessible products and services by removing barriers created by 
divergent legislation, the Commission proposed the European Accessibility Act, which will facilitate the 
work of companies and will bring benefits for disabled and older people in the EU.  

38 

 
 
                                                 
39 

of  commercial  competitors  in  the  market64).  This  is  clearly  reflected  in  the  public 
consultation. 

The  relevance  of  sector-specific  end-user  protection  rules  has  been  looked  at  in  the 
light of the development of EU horizontal consumer legislation and of the technological 
and market developments which implies that the definition of electronic communications 
services  as  a  triggering  factor  for  regulation  may  have  become  irrelevant.  Moreover, 
horizontal rules might render some of the sector specific rules unnecessary, as discussed 
further  in  the  coherence  section.  For  example,  some  contract  provisions  (Art.  20 
Universal Service Directive) are overlapping with information requirements in contracts 
in Article 5 of the Consumer Rights Directive65 covering aspects such as characteristics 
of  services,  identity  of  trader,  tariffs  or  contract  duration;  additionally  general  contract 
rules are also set out in the Services Directive66; the provisions on "Out-of-court dispute 
resolution" (Art.  34  Universal  Service  Directive)  are  partially  overlapping  with  out-of-
court complaint and redress mechanisms provided for under the Directive on alternative 
dispute resolution for consumer disputes (Directive on consumer ADR)67 and under the 
Regulation on online dispute resolution for consumer disputes (Regulation on consumer 
ODR68).  However,  other  (sector-specific)  rules  remain  relevant  as  they  are  specific  to 
how traditional communication services are provided (e.g. relying on the use of public 
resources,  such  as  numbers).  Therefore,  certain  rules,  such  as  those  on  switching  or 
portability  of  numbers  are  still  warranted.  Over  60%  of  the  respondents  to  the  public 
consultation, including industry and users' associations, share the view that regulation is 
still necessary in the area of consumer protection.  

The  relevance  of  the  European  emergency  number  112,  which  is  linked  to  ensuring 
access to emergency services to all citizens across the EU, in still very much valid. The 
Commission yearly monitoring of the implementation of 112 reveals the implementation 
of a reliable access to emergency services by the  electronic communications providers. 
However  caller  location  solutions,  access  for  disabled  end-users  implemented  in 
Member  States69  seem  to  be  below  what  is  technically  feasible  to  ensure  quick  and 
accurate relief. A large majority of respondents to the public consultation agree with the 
significant relevance of the scope and requirements of the current regulation of access to 
emergency  services.  It  remains  therefore  necessary  to  further  pursue  the  provisions 
regarding 112.  

64  According  to  Tech4i2  et  al.  (2016)  "Review  of  the  scope  of  universal  service,  SMART  2014/0011", 
several countries that disseminate paper directories noted a drop in their demand due to competition from 
electronic equivalents. Regarding directory enquiry services, it is worth noting that at least some usage is 
reported  in  each  country,  ranging  from  36%  of  citizens  in  Poland  to  94%  in  the  Netherlands.  This  is 
remarkable given that only 11 Member States have designated an operator with a USO. Also, there is no 
correlation  between  designation  and  use:  6  countries  with  a  designated  universal  service  provider  score 
lower in use that the EU average, whereas 6 others score higher than EU average). 
65 Directive 2011/83/EU 
66 Directive 2006/123/EC 
67 Directive 2013/11/EU 
68 Regulation (EU) No 524/2013 
69 For equivalent access persons with disabilities need voice, real-time text and video, and these solutions 
need  to  be  interoperable  across  the  EU,  and  not  only  in  a  particular  region  or  by  using  a  particular 
technology.  

39 

 
 
                                                 
40 

As regards the relevance of 116 services, i.e. harmonised services of social value, their 
importance  is  recognised  in  principle,  as  confirmed  also  by  the  public  consultation 
organised in the framework of the review. This is in spite of a limited effectiveness, in 
particular a slow take up with only two of the five short numbers reserved in wider use 8 
years after the entry into force of the provisions70 and a low level of awareness revealed 
by Eurobarometer studies carried out in 201171 and 201272. The relatively modest take-
up  of  the  scheme  suggests  that  the  scope  of  the  scheme  should  be  limited  to  already 
assigned numbers. 

Over  75%  of  the  respondents  to  the  public  consultation  support  the  relevance  of  the 
provisions  concerning  security  and  integrity  of  networks  and  services,  which  is 
increasing  as  networks  and  services  are  gaining  prominence  in  the  economy  and  the 
society  as  a  whole.  The  digitalisation  of  services,  including  commercial  and  public 
services is leading to a situation where  breaches have  more impact on both  companies 
and  individuals.  For  instance  in  2014  (the  last  year  for  which  statistics  are  available), 
Member  States  reported  to  ENISA  under  Article  13a  (3),  last  subparagraph,  a  total  of 
137 "major incidents"73, i.e. incidents meeting the minimum thresholds in terms of either 
duration  or  percentage  of  users  affected74.  Such  incidents  significantly  affected  in 
comparable  percentages  fixed  telephony,  mobile  telephony,  fixed  Internet  and  mobile 
Internet. Mobile Internet outages affected most user connections compared to the  other 
services, with an average of 1.7 million user connections affected per reported incident, 
i.e. on average about 13% of the user base.  

The  current  provisions  regarding  must-carry  and  access  to  electronic  programme 
guides form part of a set of measures intended to protect general interest objectives such 
as  media  pluralism,  freedom  of  speech  and  cultural  diversity  in  the  process  of 
liberalisation of electronic communications markets. These general interest (or end-user 
protection) objectives remain relevant in an increasingly digital society in which linear 
digital television is still the predominant means for citizens to receive and enjoy audio-
visual  content  and  space  for  policy  intervention  might  be  further  justified  to  foster  the 
findability of content of general interest. This is shared by most respondents to the public 
consultation,  even  though  there  is  no  consensus  as  to  how  rules  should  be  adapted  to 
new market and technological realities. 

70 Statistics on take are available on the Commission's 116 web page ( https://ec.europa.eu/digital-single-
market/en/eu-rules-116#the-implementation-of-the-116-numbers ), the latest COCOM Working Document  
on  the  implementation  on  the  reserved  ‘116’  numbers  –  as  of  1  November  2015  was  published  in 
November 2015 and the next report COCOM16-05 is due to be published by end of May. 
71  For  Special  Eurobarometer  367  on  Harmonised  numbers  for  services  of  social  value  -116  please  see: 
http://ec.europa.eu/public_opinion/archives/eb_special_379_360_en.htm#367  
72 For Special Eurobarometer 387 on harmonised numbers for services of social value – 116, please see: 
http://ec.europa.eu/public_opinion/archives/ebs/ebs_387_en.pdf  
73 https://www.enisa.europa.eu/publications/annual-incident-reports-2014. 
74 An incident should be reported if it meets the following minimum thresholds: 1) lasts more than an hour, 
and the percentage of users affected is higher than 15 %, 2) lasts more than 2 hours, and the percentage of 
users  affected  is  higher  than  10  %;  3)  lasts  more  than  4  hours,  and  the  percentage  of  users  affected  is 
higher than 5 %, 4) lasts more than 6 hours, and the percentage of users affected is higher than 2 %, or if it 
5) lasts more than 8 hours, and the percentage of users affected is higher than 1 %. 

40 

 
 
                                                 
41 

7.1.3. Continued relevance of the current objectives against new needs 

Looking at the global objectives and the structural changes in the sector, are there new 
objectives that the framework should pursue? 

It  follows  from  the  above  analysis  that,  in  general,  the  specific  objectives  of  the 
regulatory framework still correspond to the needs and problems within the EU as well 
as to the needs of the sector. The question arises however whether the current objectives 
provide  regulators  with  sufficient  guidance  in  the  environment  where  the  role  of  the 
sector  as  provider  of  connectivity  services  and  enabler  of  wider  digital  economy  is 
continuously increasing.   

The  mandate  of  the  Juncker  Commission  includes  the  creation  of  a  Digital  Single 
Market, "expected to deliver up to EUR 250 billion of additional growth in Europe, to 
create hundreds of thousands of new jobs, notably for younger job-seekers and a vibrant 
knowledge based economy"75. The electronic communications sector has evolved and its 
role as an enabler of the online economy has grown so that the telecoms sector is now 
affecting most sectors of the general economy. ICT is no longer seen as a specific sector 
but rather as the foundation of modern, innovative economic systems and as well as of 
certain societal services, such as e-transport, e-government, e-health care, e-learning, etc. 
This can only be possible if appropriate ICT networks are rolled out at a sufficient scale, 
if the services are accessible and affordable to all citizens. 

This view is shared by stakeholders. In the public consultation organised on the review 
of  the  regulatory  framework,  as  well  as  in  other  targeted  stakeholder  consultations, 
connectivity  was  broadly  recognised  as  the  underlying  driving  force  for  the  digital 
society and economy, underpinned by technological changes and evolving consumer and 
market demands.  

Many  contributions  to  the  public  consultation,  across  different  stakeholder  groups, 
suggested that it should be a more prominent focal point in the revised framework. Many 
respondents pointed to the need for policy measures and possible adjustments to current 
policy and regulatory tools to support the deployment of infrastructure in line with future 
needs.  More  precisely,  the  use  of  Internet  services  and  applications  is  expected  to 
increase for both fixed and mobile connectivity and there is a need to prepare now for 
higher speed (upload and download) and better quality (latency, resilience etc.) beyond 
2020. The future success of virtually all digital policy initiatives (e.g. cloud strategy, Big 
Data,  industry  4.0,  5G)  is  linked  to  the  capacity  to  deliver  a  "high-class"  connectivity.  
At  a  higher  level,  a  significant  part  of  innovation  in  the  economy  -  for  commercial 
services  and  services  of  public  value  alike  -  is  ICT-based.  Inadequate  connectivity  is 
considered  a  risk  or  a  high  risk  for  employment,  education  and  learning,  research  and 
data driven activities, consumer welfare, and accessibility.   

The results of the public consultation on the needs for Internet speed and quality beyond 
2020  are  clear  concerning  the  expected  needs  in  terms  of  quality  of  services  of  fixed 
connectivity by 2025 - especially improving download speed: expected needs to increase 
above 1 Gbps  and  latency:  expected  to  decrease  below  10 ms  but  also  in  relation  to 

75 COM(2015) 192 final – A Digital Single Market Strategy for Europe  

41 

 
 
                                                 
42 

upload  speeds  (e.g.  for  cloud  services,  connected  devices  etc.).  While  they  are  more 
nuanced as far as mobile connectivity in 2025 is concerned, they still reflect a need for 
upgrade, e.g. to download speed above 100 Mbps and to latency below 10 ms76.  

While users perceive download speed as the most important feature of fixed connectivity 
today  (considered  as  important  or  very  important  today  by  73%  of  the  respondents), 
other fixed connectivity features will gain significant importance in the future - notably 
upload  speed  (considered  as  important  or  very  important  in  2025  by  81%  of  the 
respondents), reliability (86%) and uninterrupted access (86%).  

7.2. Effectiveness  

To  assess  the  effectiveness  of  the  regulatory  framework  in  achieving  the  general 
objective,  namely  to  promote  a  competitive  sector  delivering  end-user  benefits,  the 
section below looks at how the high-level evolutions compare internationally. Then, the 
achievement  of  the  specific  objectives  of  the  framework  is  evaluated.  Finally, 
achievements per regulation area are presented. Wherever possible, links and effects are 
analysed  and  discussed:  from  outputs  and  results  per  policy  area  to  achievement  per 
specific  objectives,  and  to  possible  contribution  to  high  level  achievements.    Finally, 
where relevant, distinctions are made between how the various policy areas affected the 
different stakeholders.  

7.2.1. Achievement of the general objective of the regulatory framework  

The  evolution  of  broadband  rollout  and  penetration  –  both  fixed  and  mobile  –  and  the 
evolution of prices have been selected as key indicators for high-level end-user outputs 
of  the  sector.    To  assess  whether  the  regulatory  framework  has  contributed  to  these 
outcomes, an exercise of international benchmarking was made.  

The comparison with digital world leaders (Japan, South Korea and USA) shows, as far 
as  network  rollout  and  take  up  are  concerned,  that  there  are  both  similar  trends  and 
significant  divergences.  The  development  in  fixed  broadband  subscriptions  in  Japan, 
South  Korea  and  the  USA  is  not  very  different  from  the  situation  in  the  EU77.  The 
penetration of mobile broadband, and in particular of 4G services, on the contrary, seems 
far  more  advanced  in  these  selected  countries  than  it  is  in  the  EU  as  a  whole,  even  if 
there are some encouraging outcomes in a few European countries78.  

76  According  to  the  Sam  Knows  study,  the  average  latency  for  fixed  connectivity  across  Europe  was 
27.01ms. This figure is largely dictated by the technology in use, with xDSL averaging 37.36ms and cable 
19.22ms  and  FTTx  20.16ms.  Today  fibre  is  the  only  technology  that  allows  for  latency  below  10 ms 
(usually around 4 ms). For mobile connectivity 2G allows for latency between 300 and 1000 ms; 3G 100–
500 ms, and 4G 100 ms. 5G should allow for latency below 10 ms (the goal is between 1 and 10 ms). 
77  The  number  of  fixed  broadband  subscriptions  is  slowly  but  steadily  increasing  although  the  market 
seems  to  be  reaching  saturation.  In  June  2014,  Japan  saw  28.2  fixed  broadband  connections  per  100 
inhabitants. In South Korea this number was 37.9 and in the USA it was 30.2, the average in the OECD 
countries stands at 29.2%.   
78 GSMA Mobile Economy 2015 

42 

 
 
                                                 
As  regards  prices  of  electronic  communications  services,  when  subject  to  international 
comparison, the EU average is the least expensive for 12-30 Mbps broadband, and the 
third least expensive for 30-100 Mbps broadband, after South Korea and Japan79.  

43 

Figure 8 OECD wireless broadband take-up (subscriptions/100 people) 

Figure 9 NGA performance global comparisons end 2014 

79 BIAC 2015, Van Dijk, SMART 2013/0055 

43 

Country NGA coverage % HH NGA take-up % homes passed Average download speed Mbit/s Price telephony, TV Internet 30-100Mbit/s Mean rating Average ranking Austria 7 14 10 13 11 13 Belgium 1 4 8 12 6 4 Czech 12 16 4 6 10 9 France 14 10 14 2 10 11 Germany 8 13 11 10 11 12 Italy 15 15 16 7 13 15 NL 2 5 3 14 6 3 Poland 13 12 11 11 12 14 Romania 11 7 5 3 7 5 Spain 10 8 13 9 10 11 Sweden 9 2 2 4 4 2 UK 6 9 7 8 8 7 Australia 16 11 15   14 16 Canada 4 1 9 16 8 7 Japan 3 3 1 5 3 1 US 4 6 6 15 8 8        Source EC IDATE Akamai EC/Van dijk     
 
 
 
 
 
 
                                                 
44 

It  appears  from  the  above  that  the  regulatory  framework  may  have  contributed  to  the 
delivery of consumer benefits, in particular basic broadband, lower prices, and increased 
choice and quality of service.  In order to assess the extent of the impacts, it should be 
recalled  that  end-users  include  businesses  (including  SMEs)  and  citizens.  This  very 
general  assessment  is  confirmed  by  the  conclusions  of  the  review  studies,  although 
econometric  analysis  could  not  show  a  direct  impact  due  to  the  difficulty  of  isolating 
external factors (see Annex IV). It is moreover reflected in the views expressed by a vast 
majority  of  stakeholders  in  the  review  public  consultation  (between  60  and  80% 
depending on the benefits attributed to the working of the framework).  

High level outcomes or impacts have clearly also been influenced by factors outside the 
remit  of  the  regulatory  framework.  For  instance,  the  global  financial  crisis  may  have 
delayed certain NGA investments, in Europe and elsewhere. Market  saturation and the 
rise  of  the  OTTs  may  have  contributed  to  shrinking  revenues.  Technological  progress, 
alongside  competition, may  have  contributed to decreasing consumer prices. No sound 
methodology is available to identify or measure the discrete impacts of these influences 
on  high  level  outcomes  or  impacts,  just  as  none  exists  to  measure  the  influence  of  the 
regulatory framework.      

The  following  sections  will  describe  possible  links  and  contributions  from  regulation 
area  to  achievement  per  objective  and  to  high  level  outcomes,  without  however 
establishing definitive causal relationships.  

7.2.2. Achievement of the specific objectives of the regulatory framework  

As discussed above in the section concerning the evolution of the sector and its state of 
play, the progress in terms of competition is undeniable. 

The framework - mainly through access regulation, but also with the support of spectrum 
policy and market entry provisions - has on the one hand made possible the provision of 
competitive  electronic  communications  services  and  on  the  other  hand  enabled 
alternative operators to make significant steps up the ladder of investment and duplicate 
part of the legacy networks.   

The  results  achieved  are  however  different  among  and  within  Member  States:  not  all 
citizens throughout the entire EU benefit from the same level of competition. Beyond the 
number of offers available at a given location, studies  show that  not  all competition is 
equally  sustainable,  referring  to  the  degree  to  which  a  competitor  can  function 
independently of regulated access to the incumbents' networks, the extent to which it can 
adapt its offers regardless of its own access conditions.  

At EU level, 69% of total fixed broadband subscriptions are xDSL and this technology 
continues  to  be  predominant,  and  its  market  share  can  be  strengthened  given  the 
increasing VDSL coverage.  

44 

 
 
 
 
 
Fixed broadband subscriptions — technology market shares at EU level, January 2006 to July 2015 

DSL (VDSL included)

Cable (DOCSIS 3.0 included)

FTTH/B

Other

45 

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Source: Communications Committee 

Figure 10 Fixed broadband subscriptions – technology market shares at EU level, January 2009-July 2015 

At Member State level, xDSL is particularly important in Greece and Italy, and has the 
lowest market share in Bulgaria, Lithuania and Romania. Cable has a very high market 
share in Belgium, Hungary, Malta and the Netherlands. FTTH/B is the most widely used 
technology  in  Lithuania,  Latvia,  Romania,  Bulgaria  and  Sweden.  The  share  of  xDSL 
ranges  from  14  %  in  Bulgaria  to  100  %  in  Greece.  DSL  is  generally  less  dominant  in 
eastern  Europe.  Looking  at  alternative  technologies,  cable  is  present  in  all  but  two 
Member States and it is the major technological competitor of DSL in the majority of the 
Member States. Fibre technologies (FTTH and FTTB) represent 9 % of EU broadband 
subscriptions up from 7 % a year ago. In these technologies, Europe is still very much 
lagging behind South Korea and Japan80.  

80 Source: Communications Committee (COCOM) and OECD.  

45 

 
 
 
                                                 
Fixed broadband subscriptions — technology market shares,  July 2015 

DSL lines % (VDSL included)
FTTH/B %

Cable modem % (DOCSIS 3.0 included)
Other %

46 

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

BE BG CZ DK DE EE EL ES FR HR IE IT CY LV LT LU HUMT NL AT PL PT RO SI SK FI SE UK EU

Source: Communications Committee 

Figure 11 Fixed broadband subscriptions – technology market shares at EU level, July 2015 

However, regarding Next Generation Access (NGA), the share of different technologies 
out of total NGA subscriptions shows that cable is currently the most widespread NGA 
technology  in  the  EU.  45  %  of  NGA  subscriptions  are  Cable  (Docsis  3.0),  which  is 
remarkable  since  cable  broadband  in  total  represents  only  19  %  of  all  EU  fixed 
broadband subscriptions (see previous graph). 

Share of different NGA technologies in total NGA subscriptions at EU level, July 2015 

50%
45%
40%
35%
30%
25%
20%
15%
10%
5%
0%

vDSL

FTTH

FTTB

Cable

Other NGA

Source: Communications Committee 

Figure 12 Share of different NGA technologies in total NGA subscriptions at EU level, July 2015 

The competition fostered by the framework has promoted entry of new operators (with 
59%  of  market  share)  and  resulted  in  a  significant  reduction  of  prices  for  traditional 
telecommunication  services.  It  has  contributed  to  driving  down  prices  not  only  at  the 
retail  level,  but  also  at  the  wholesale  level  –  as  new  entrants  have  progressively  also 
entered  the  wholesale  market.  At  EU  level,  affordability  indicator  on  Digital  economy 

46 

 
 
 
 
 
47 

and  society  index  shows  that,  at  European  level,  access  to  internet  represents  1.3%  of 
their income81.  

Fixed broadband subscriptions - operator market shares at EU level (% 
of subscriptions), January 2006 to July 2015 

70%

60%

50%

40%

30%

20%

Incumbents

New entrants

Source: Communications Committee 

J
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Figure 13 Fixed broadband subscriptions - operator market shares at EU level (% of subscriptions), January 
2006 to July 2015 

Beyond  the  general  consumer  prices  discussed  above,  the  regulated  wholesale  charges 
giving access for new entrants to the local loop are important to effective competition in 
the xDSL market. The monthly average total cost (calculated as the monthly rental + the 
one time connection charge distributed over a three year period) stood at €9.52 for full 
access (provision of both voice and broadband) and at €2.59 for shared access (provision 
of broadband only) in October 2015.82 

Local Loop Unbundling monthly average total cost (EUR) at EU level,  
2005-2015 

14

12

10

8

6

4

2

0

Full LLU

Shared access

Source: Communications Committee 

O
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Figure 14 Local Loop Unbundling monthly average total cost (EUR) at EU level,  2005-2015 

81 Percentage of individual gross income spent for the cheapest standalone Fixed Broadband subscription. 
Source: DESI - Affordability sub- indicator on Connectivity dimension: https://ec.europa.eu/digital-single-
market/en/desi  
82 Communications Committee (COCOM)  

47 

 
 
 
 
                                                 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
48 

These findings correspond broadly to the results of the public consultation. Quite 
understandably,  large  players  (incumbents  and  certain  mobile  operators)  will 
generally  consider  that  the  framework  has  favoured  short  term  economic  gains 
over long term investment and innovation, and that competition is unsustainable 
when  regulation  does  not  provide  incentives  to  invest.  The  same  large  players 
point  also  to  the  fact  that  "real  competitors",  such  as  cable,  grew  to  a  certain 
extent outside the framework (i.e. as they were not subject to access obligations 
and did not rely on regulated inputs) and criticise the framework for putting high 
pressure  on  revenues  and  thereby  hampering  the  growth  of  large  pan-European 
operators.  Alternative  operators  stress  moreover  that  conditions  for  efficient 
investment and innovation have already been created in Europe. 

There are a number of causes for investment in connectivity being suboptimal. Some are 
macroeconomic  factors,  such  as  the  financial  crisis  and  its  impact  on  CAPEX.. 
Moreover,  investment  might  paradoxically  tend  to  be  directed  to  less  performing 
technologies,  which  are  cheaper  to  develop  (e.g.,  FTTx  rather  than  more  performing 
ones such as FTTH/B.) as operators are then subject to a lower risk while not currently 
having the right regulatory  incentives  to be more ambitious. These causes have  in part 
been explored in the access study83.  

Regarding  the  role  of  the  framework  in  delivering  competition  and  investment  as 
reflected  in  the  position  of  cable  players,  the  following  should  be  noted.  As  discussed 
below, under access regulation, cable presence is indeed a predictor of NGA coverage. 
However  at  least  80%  of  the  fixed  subscriptions  in  the  EU  are  delivered  by  operators 
other  than  cable  and  the  role  of  cable  in  affecting  the  market  dynamics  varies 
dramatically  across  Member  States.  In  some  countries  like  Italy  or  Greece  no  cable 
operator is present, while others such as Luxembourg, the Netherlands or Belgium have 
almost ubiquitous cable coverage, as is shown in the figure below. While the cable TV 
networks  were  built  for  a  different  purpose  than  the  provision  of  telephony/internet 
services  and  hence  not  in  competition  to  telephone  networks,  the  reasons  for  the 
observed  divergences  in  their  coverage  across  Member  States  can  be  explained  by 
factors such as geography (population density, urban development), legal and licencing 
conditions (town planning, permits), availability of other platforms (terrestrial, satellite), 
and  regulation.  It  would  therefore  be  inaccurate  to  attribute  a  too  large  contribution  of 
cable  players  to  competition  and  consumer  outcomes  across  the  entire  EU.    Similarly, 
existing  divergences  between  MS  in  the  level  of  the  local  loop  unbundling  are  mainly 
related  to  regulatory  conditions  attached  to  LLU,  such  as  pricing,  delivery  times, 
provisioning  methods,  stricter  enforcement  of  non-discrimination,  and  by  different 
starting  points  (in  time)  of  the  liberalisation  process.  To  certain  degree  it  is  also 
explained by objective, exogenous factors such as population density, urban/rural split, 
network architecture and penetration.  

83  Regulatory,  in  particular  access,  regimes  for  network  investment  models  in  Europe  (SMART 
2015/0002) 

48 

 
 
                                                 
Household penetration of Cable TV, July 2014 

Cable TV

49 

80,0%

70,0%

60,0%

50,0%

40,0%

30,0%

20,0%

10,0%

0,0%

DK BE NL FI RO MT HU SE LU DE EE LV AT LT SI BG PL SK EU IE CZ UK CY HR ES

Figure 15 Household penetration of Cable TV, July 2014 

Source: Communications Committee, July 2014 

Overall, the contribution of the framework to competition (and consumer outcomes) is 
clear, although not easy to measure. In the public consultation, the competition objective 
has been considered achieved by 59% of the respondents (of which 32% consider that it 
was "significantly achieved"). Moreover the regulation areas have had different degrees 
of  contribution,  as  discussed  below  in  section  7.2.3.  Further  discussion  on  access 
regulation for example shows that certain access strategies have been better than others 
at  delivering  "best  outcomes",  i.e.  not  just  retail  competition  but  also  infrastructure 
competition and investment in NGAs. Similarly, the discussion on spectrum policy will 
highlight  a  positive  contribution  to  competition  on  the  market,  but  also  possible  links 
with delays in mobile investments.  

As regards the contribution of the framework to the Single Market objective, the results 
are  harder  to  substantiate.  Roughly  46%  of  the  respondents  to  the  public  consultation 
consider  the  single  market  objective  achieved  (of  which  39%  only  "moderately" 
achieved).  Some  advances  are  beyond  doubt  in  the  areas  of  trans-EU  connectivity  and 
interoperability  (as  discussed  below),  and  in  the  cooperation  between  NRAs.  However 
most  stakeholders84  consider  that  this  is  the  least  accomplished  objective  of  the 
framework, referring to the lack of regulatory consistency and to the persisting barriers 
to operating across borders.  

In  particular,  cross-border  providers  deplore  the  lack  of  consistent  access  products  (in 
particular when it comes to the wholesale inputs needed to serve the high end business 
market),  the  lack  of  harmonisation  related  to  the  actual  access  to  spectrum  by  market 
the  multiplicity  and  great  diversity  of  market  entry  provisions  (e.g. 
players, 

84  Roughly  46%  of  the  respondents  to  the  public  consultation  consider  the  single  market  objective 
achieved  (of  which  39%  only  "moderately"  achieved),  while  the  competition  objective  is  considered 
achieved by 59% of the respondents (of which 32% consider that it was "significantly achieved") and the 
citizen interest objective is considered achieved by 54% of the respondents.  

49 

 
 
 
 
                                                 
50 

authorisations, rights of ways) and the very different implementing rules across the EU 
designed  in  view  of  consumer  protection.  Furthermore,  as  will  be  discussed  in  detail 
under  their  respective  regulation  areas,  the  experience  of  implementing  the  framework 
has revealed clear difficulties in obtaining consistent access regulation and market entry 
conditions,  in  securing  end-to-end  trans-EU  connectivity,  in  solving  cross-border 
spectrum interference issues in some cases, in solving disputes across borders, etc. 

From an end-user perspective, the lack of single market is also visible not only through 
roaming (problem tackled recently via a different legislative instrument) but also through 
the differing end-user rights and through the lack of cross border remedies. The current 
minimum harmonisation approach has resulted in a high degree of heterogeneity in the 
implementation  and  governance  of  consumer  protection.  For  example,  some  Member 
States  define  specifications  on  contract  terms  for  all  types  of  users  while  in  other 
Member  States  these  provisions  do  not  apply  to  business  users;  in  about  half  of  the 
Member States operators are obliged to publish information on fixed/mobile broadband 
and mobile voice; also differences exists in terms of requirements on contract duration 
and termination and out-of-court settlement resolution. 

As  regards  the  consumer  interest  objective,  it  is  considered  achieved  by  54%  of  the 
respondents to the public consultation. As a matter of fact, consumer surveys based on a 
proven  methodology  and  time  series,  show  that  there  have  been  certain  advances  in 
consumer satisfaction, advances which can be linked to areas covered by sector specific 
consumer legislation.  

Indeed while the results of the EU Consumer Markets Scoreboard 2016 and the Market 
Performance  Indicator85  suggest  for  all  telecom  markets  (fixed,  mobile,  internet,  TV 
subscription)  a  below  average  performance  compared  with  the  29  services  markets 
included  in  the  Scoreboard,  improvements  were  noted  in  comparability,  trust, 
expectations,  and  switching.  In  particular,  the  levels  of  switching  compared  to  other 
industries  are  higher,  while  the  consumers  still  perceive  switching  as  difficult  and/or 
encounter obstacles when attempting to switch, as discussed below in section 7.2.3.9.   

It  can  be  concluded  from  the  above  that  the  current  framework  has  not  served  equally 
well  the  three  policy  objectives  it  pursues:  it  has  been  successful  in  promoting 
competition, but less successful in the development of the internal market, in particular 
in  achieving  a  consistent  EU-wide  regulatory  approach  to  market  regulation,  spectrum 
assignment  and  market  entry  conditions.  While  advances  in  consumer  protection  are 
undeniable, they are not translated in increased consumer satisfaction. A more detailed 
description is provided below in the respective regulatory areas.   

85 This is a composite index taking into account comparability of offers, trust in businesses, the extent to 
which  markets  live  up  to  what  consumers  expect,  consumers'  satisfaction  with  the  number  of 
retailers/suppliers and the degree to which problems experienced in the market cause detriment. 

50 

 
 
                                                 
51 

7.2.3. Contribution  of  specific  regulation  areas  to  the  objectives  of  the  regulatory 
framework    

7.2.3.1.  Access regulation  

Ex ante access regulation is essential for the achievement of the first specific objective 
of the framework, competition, but also aids the functioning of the single market as it is 
expected  that  similar  competition  issues  are  met  with  similar  regulatory  solutions  in 
individual  Member  States,  thus  enhancing  regulatory  consistency  and  levelling  up 
regulatory practice across the Union. Moreover, the consistency of access regulation is 
of  central  importance  to  cross-border  providers.  As  such,  the  effectiveness  of  access 
regulation is evaluated against the first two specific objectives of the framework.  

Access regulation and competition 

Access  regulation  has  been  built  on  the  assumption  that  addressing  competition 
problems  in  wholesale  markets  leads  to  effectively  competitive  retail  markets  on  a 
gradual yet sustainable basis, and will produce short and long term benefits for end-users 
-  both  consumers  and  businesses.  It  is  expected  that  national  regulatory  authorities  are 
gradually  able  to  find  retail  markets  to  be  competitive  based  on  appropriate  wholesale 
access  regulation  and  that  then  eventually,  based  on  market  developments  (alternative 
providers becoming stronger) but also innovations and technological development, they 
will  also  be  able  to  deregulate  wholesale  markets.  The  ex-ante  access  regulation  was 
indeed designed with the aim to be progressively reduced and for market supervision to 
be handed over to the application of general competition law. Given that a deregulation 
exercise  is  subject  to  detailed  analysis  of  the  competitive  situation  on  the  market,  a 
decreasing  number  of  regulated  markets  is  therefore  a  good  indicator  of  an  improved 
competitive  situation  in  the  delivery  of  electronic  communications  services  and 
networks.    

At  a  general  level,  the  number  of  markets  recommended  by  the  Commission  for 
regulation  has  been  decreasing  constantly  since  the  adoption  of  the  2002  framework 
(from 18, including  7 retail markets, to  currently only  4 wholesale markets). The  third 
revision of the Commission Recommendation on relevant markets in 2014 continued the 
deregulatory trend already witnessed at its previous overhaul in 2007. The markets now 
considered  in  principle  to  still  need  ex  ante  regulation  are:  the  (wholesale)  fixed  and 
mobile  termination  markets  and  the  two  wholesale  broadband  access  markets  –  one  of 
which is high quality access.  

The  situation  on  the  ground  in  terms  of  regulation  imposed  by  national  regulators 
follows this deregulatory trend, albeit still with significant differences between Member 
States.86 Save for few exceptions, a majority of markets considered for ex ante regulation 
in the 2003 Recommendation on relevant markets are now fully deregulated. Similarly, 
markets  removed  from  the  Recommendation  in  2014  are  progressively  considered 
competitive: in ten Member States the retail market for access to telephone network, and, 
in four, the market for wholesale call origination, are deregulated. More importantly, in 

86 
currently 
http://ec.europa.eu/newsroom/dae/document.cfm?action=display&doc_id=14430  

Overview 

regulated 

and 

of 

de-regulated 

markets:  

51 

 
 
                                                 
52 

view of developing infrastructure competition, seven Member States already partially or 
fully deregulated wholesale central access (which is a key product for the provision of 
retail broadband), although this is still included in the 2014 Recommendation. However, 
some  Member  States  still  consider  it  necessary  to  regulate  markets  outside  the 
Recommendation, including retail markets (e.g. broadcasting services, or retail markets 
for access to telephone network, although the latter is progressively being considered as 
competitive).    In  such  cases  a  national  regulatory  authority  must  establish  that  a  given 
market  is  susceptible  to  ex  ante  regulation,  through  a  so  called  three-criterion  test 
(existence  of  non-transitory  high  entry  barriers,  no  tendency  towards  effective 
competition  and  insufficiency  of  competition  law  instruments  to  address  the  identified 
market failure).  

An indication of the fact that access regulation has generally been effective can be found 
both in the decreasing number of regulated markets, which testifies that incumbents are 
found to have significant market power in an ever decreasing number of markets, as well 
as in the decreasing market shares of incumbents (see figures above). Regulated access 
to  incumbents'  infrastructure  has  enabled  market  entry  -  most  alternative  operators 
function  based  on  access  products  with  the  notable  exception  of  cable  providers  and 
some  alternative  fibre  operators,  allowing  them  to  compete  on  services  and  as 
consequence drive down the retail prices.  

However  the  position  of  incumbent  operators  should  not  be  under-estimated,  as  they 
usually  control  the  only  ubiquitous  national  network,  including  a  civil  engineering 
infrastructure, which is unlikely to be duplicated by any single competitor. Incumbents 
are  usually  obliged  to  provide  wholesale  access  to  their  networks,  and  therefore  are 
responsible  for  a  significant  part  of  the  overall  value  chain.  For  that  reason  the  trend 
towards  progressively  competitive  retail  markets  might  not  necessarily  reflect  the  full 
situation at the upstream, infrastructure level (usually less competitive). In other words,  
as  noted  above,  the  competition  achieved  is  not  necessarily  sustainable,  infrastructure 
based competition.  

Moreover,  a  discussion  exists  concerning  the  end-user  outcomes  and  sector  impacts 
which  can  be  associated  with  ex  ante  access  regulation  –  and  more  precisely  with  the 
effect  on  network  investment,  as  the  price  decreases  are  beyond  doubt.  Many  large 
operators  (most  incumbents)  consider  that  current  access  regulation,  oriented  towards 
service  competition,  has  lowered  prices  but  in  general  has  led  to  limited  infrastructure 
investments  both  by  alternative  operators  (who  can  rely  on  regulated  access  without 
having to build their own access networks) and by incumbents (obliged to grant access 
to  others  who  bear  inferior  investment  risks).  According  to  several  respondents 
(incumbents but also large mobile operators), cost-oriented access regulation, combined 
with a stagnant macro-economic framework has also lowered revenue growth in Europe. 
This view is contrasted by alternative operators, who view competition as necessary to 
incentivise  investments.  It  must  be  considered  that  there  are  many  other  factors  that 
contribute  to  explain  revenue  and  investment  trends  in  the  market,  but  that  regulation 
may also play a part.  

52 

 
 
53 

A  recent  analysis87  has  shown  that  the  outcome  of  access  regulation  is  not 
straightforward  as  Member  States  have  pursued  various  strategies  and  some  provide 
promising  results.  Econometrics  tends  to  confirm  the  role  of  cable  (i.e.  infrastructure 
competition)  as  a  key  driver  of  NGA  deployment  –  yet  the  influence  of  cable  is  only 
truly important in a few Member States.  Other factors influencing the NGA roll out may 
include ownership structure (in Denmark the same entity owned the regulated telecoms 
network and unregulated cable, incentivising investments in the unregulated part of the 
business), vertical/structural separation, and technology choices (path dependency, leap-
frogging).  High  GDP,  (low)  rural  populations  and  low  NGA  prices  contribute  to  fast 
broadband  penetration.  In  turn  NGA  prices  may  have  been  influenced  by  standard 
broadband  competition  on  the  basis  of  local  loop  unbundling  ("copper  anchor"  effect). 
The  often  limited  take-up  and  lack  of  data  on  NGA-based  wholesale  access  makes  it 
difficult to gauge the precise effects of NGA wholesale regulation.  

Different  business  models  adopted  by  operators  when  deploying  networks  in  the 
different Member States have resulted in a very diverse EU-wide picture in terms of the 
availability  of  connectivity  and  quality  and  speed  of  the  network  upgrades.  This  is 
visible  for  example  when  looking  at  the  differences  between  Member  States  in  the 
coverage  of  NGA  networks  or  of  Fibre  to  the  Premises  (capable  of  delivering  at  least 
100Mbps),  as  shown  in  the  tables  below.  National  circumstances,  such  as  geography, 
GDP  per  capita  or  the  cost  of  labour,  cannot  explain  the  wide  differences  between 
Member  States,  which  must  be  due  to  other  factors  including  regulation  and  the 
commercial  choices  of  the  operators  active  in  the  national  territory,  which  in  turn  are 
also influenced by regulation.   

Next generation access (FTTP, VDSL and Docsis 3.0 cable) coverage, June 2015 

Total

100%

80%

60%

40%

20%

0%

EL IT FR HR PL SK EU RO BG CZ FI SE ES HU SI NO IE DE CY EE AT UK LV IS PT DK LU LT NL BE MT

Source: IHS and VVA 

Figure 16 Next generation access (FTTP, VDSL and Docsis 3.0 cable) coverage, June 2015 

87  Regulatory,  in  particular  access,  regimes  for  network  investment  models  in  Europe  (SMART 
2015/0002)  

53 

 
 
 
 
                                                 
 
54 

100%

Total

Fibre to the premises (FTTP) coverage, June 2015 

80%

60%

40%

20%

0%

EL UK IE DE AT PL HR MT FR CZ IT EU HU CH NL BG FI NO SI LU CY SK ES IS SE DK RO EE PT LV LT

Source: IHS and VVA 

Figure 17 Fibre to the premises (FTTP) coverage, June 2015 

The figures in relation to take up of high-speed broadband of at least 100 Mbps are also 
reflective of these differences in approaches.  

Fixed broadband subscriptions by headline speed,  July 2015 

Above 144 Kbps and below 30 Mbps
100 Mbps and above

30 Mbps and above and below 100 Mbps

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

BE BG CZ DK DE EE EL ES FR HR IE IT CY LV LT LU HU MT NL AT PL PT RO SI SK FI SE UK EU

Source: Communications Committee 

Figure 18 Fixed broadband subscriptions by headline speed,  July 2015 

While  the  variety  of  external  factors  such  as  topology,  population  density  and  legacy 
networks,  coupled  with  lack  of  specific  data  have  made  it  impossible  to  show  clear 
statistical  relationships  between  access  regulation  and  end-user  outcomes,  case  studies 
have  revealed that certain types of ex ante regimes  scored better in terms of consumer 

54 

 
 
 
 
 
 
 
55 

outcomes,  in  particular  as  far  as  the  availability  of  high  quality  services  at  reasonable 
prices.  

Indeed, work conducted for the Commission88 in support of the evaluation and review of 
the  framework  illustrates  the  impact  that  national  regulatory  choices  can  have  on  the 
deployment  and  upgrade  of  higher  performance  networks.  The  study  presents  how 
Spain,  France  and  Portugal's  NRAs  have  focused  on  stimulating  entrants  to  ‘climb  the 
ladder’ to FTTH through a focus on duct access and in-building wiring in the absence of 
downstream  remedies  as  well  as  by  promoting  co-investment  models.  These  countries 
have  seen  developments  in  FTTH  infrastructure  competition,  but  these  are  largely 
limited  to  very  dense  areas.  Market  structures  in  these  countries  have  tended  to 
consolidate  towards  fewer  fixed  mobile  integrated  players.  FTTH  coverage  has  grown 
strongly  in  Spain  and  Portugal,  but  more  hesitantly  until  recently  in  France.  The 
feasibility  of  this  model  has  depended  on  the  characteristics  of  the  existing  networks, 
including the availability of ducts.  

In contrast, the UK, Austria and Germany NRAs have focused more on regulating access 
to the incumbents' network from the outset, but with pricing flexibility. There is limited 
additional  infrastructure-based  competition  in  these  countries  (beyond  cable),  and  the 
primary technology is FTTC. Coverage of NGA has extended well beyond cable in the 
UK  (90%)  and  Austria  (89%),  but  is  more  limited  in  Germany  (81%).  There  is  some 
service-based  competition  on  NGA  in  these  countries,  but  the  impact  on  outcomes 
appears less than was the case for standard broadband competition – this may be due to 
the tying of wholesale offers to incumbent speed and pricing plans. Good quality legacy 
copper networks might have been one of the reasons for choosing this model, at least in 
some countries (Germany).  

It  appears  from  the  above  that  regulatory  regimes  promoting  access  to  passive 
infrastructure  -  which  greatly  reduces  network  deployment  costs  -  results  in  more 
competition and faster and higher quality deployment of NGA.  

An additional point concerns the effectiveness of ex ante SMP regulation in areas which 
have already become highly competitive, in particular in situations of tight oligopolies. 
The public consultation revealed that many access seekers consider that the current rules 
are  effective  in  addressing  single  dominance,  but  might  fall  short  of  being  capable  of 
tackling joint dominance or "tight oligopoly" market structures – markets where at retail 
level the incumbent no longer is dominant but remains nevertheless the sole provider of 
relevant  wholesale  access.  Some  Member  States  expressed  this  concern  in  the  public 
consultation, as well as NRA, who however indicate that an adjustment of their toolbox 
would be sufficient in addressing the problem. It should, however, be kept in mind that 
oligopolistic  market  structures  in  network  industries  are  likely,  and  in  certain  cases 
efficient, market outcomes. They are also the result of the market liberalisation over the 
past  twenty  tears.  As  criteria  for  such  a  new  intervention  threshold  are  difficult  to 
establish,  the  risk  of  overregulation  and  further  regulatory  fragmentation  would  not  be 
negligible, with consequential effects on predictability for investors.  

88  Regulatory,  in  particular  access,  regimes  for  network  investment  models  in  Europe  (SMART 
2015/0002)  

55 

 
 
                                                 
56 

These  developments,  however,  underline  the  importance  of  facilitating  infrastructure-
based completion wherever it would be economically efficient. In this context, it should 
also  be  noted  that  access  regulation  already  provides  for  other  regulatory  remedies 
besides SMP regulation. In particular it is possible under a set of (limited) circumstances 
to  impose  symmetric  regulation (obligations imposed regardless  of the market position 
of  the  concerned  operators).  These  provisions  are  foreseen  as  an  exceptional  tool 
(whereas SMP regulation remains the norm) which has been nevertheless used by a few 
Member States  with  different degrees  of effectiveness.  Therefore, it appears  opportune 
to clarify under which circumstances symmetric access to non-replicable network assets 
could be imposed. Currently such measures are not subject to the European consultation 
procedure  which  is  used  for  SMP  regulation  and  operators  have  pleaded  within  the 
stakeholder consultations for higher clarity regarding the boundaries between symmetric 
and asymmetric regulation.  

Access regulation and the Single Market 

The  regulatory  framework  has  set  out  a  flexible  mechanism  in  order  to  allow  national 
regulators  to  take  account  of  national  circumstances.  As  a  result,  NRAs  are  given  a 
certain degree of discretion to choose the regulatory remedies to a competitive problem 
most appropriate to their national markets. At the same time, the regulatory framework 
sets out procedures to ensure that the regulatory outcomes for similar market conditions 
are dealt with consistently across the EU in order to ensure the functioning of the single 
market.  

In  general  it  can  be  considered  that  the  current  regulatory  framework  has  delivered 
greater  consistency,  in  particular  in  areas  where  the  Commission  was  given  greater 
competences,  for  example  of  determining  market  definition  and  designating  operator 
with  Significant  Market  Power  (SMP).  As  a  result,  markets  are  usually  defined  in  a 
relatively  consistent  way,  in  terms  of  products  scope  (i.e.  approach  to  inclusion  or 
exclusion of various technologies such as mobile internet or cable TV). Similarly, NRAs' 
approaches  in  determining  whether  SMP  exists  (e.g.  self-supply,  indirect  constraints) 
have become rather consistent.  

On  the  other  hand  greater  discrepancies  can  be  observed  with  regard  to  (important) 
details  of  the  imposed  remedies  which  cannot  all  be  sufficiently  explained  by  varying 
national circumstances89. The discrepancy in regulatory approaches concerning remedies 
can be explained on the one hand by relatively weak tools for the EU-level consistency 
check  (limited  to  non-binding  instruments),  and  on  the  other  by  the  nature  of  the 
remedies  (which  are  more  detailed  and  network/  Member  State  specific).  Moreover, 
specifically  with  regard  to  the  scope  of  imposed  remedies,  the  NRAs  exercise  their 
discretion to a greater degree and are influenced by their own policy choices in particular 
as  regards  investment  incentives.  This  however  translates  into  divergent  approaches 
towards the regulation of fibre networks, symmetric regulation (ex ante access regulation 

89  See,  in  particular,  the  Commission  Staff  Working  Document  "A  Digital  Single  Market  Strategy  for 
Europe - Analysis and Evidence"; of 6 May 2015, SWD(2015) 100 final, p. 34 ff. 

56 

 
 
                                                 
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which  is  not  based  on  SMP),  pricing  methodologies,  the  imposition  of  Virtual 
Unbundled Local Access (VULA) remedies90, etc.   

It  has  also  become  apparent  over  the  past  years,  that  the  lack  of  consistency  in  the 
regulatory  approaches  taken  at  national  level  is  results  to  a  certain  degree  from  the 
institutional  set-up91  and  the  way  the  various  institutional  players  (i.e.  mainly  the 
national  regulators,  BEREC  and  the  European  Commission)  interact  and  can  influence 
the regulatory outcome. The inconsistency witnessed is exacerbated by the fact that the 
procedural and institutional set-up currently in place appears to be ill equipped to ensure 
a more consistent approach in similar circumstances92. A recent study for the European 
Parliament93  assessing  the  achievements  and  failures  of  the  current  framework  has 
shown that, in particular with regards to the application and design of remedies, Europe's 
telecoms sector remains fragmented along national lines94. 

To illustrate these mixed results, since 26 May 2011 (the deadline for the transposition 
of  the  review  package  and  until  29  April  2015)  NRAs  have  notified  about  620  draft 
measures to the Commission. Most of these notifications either did not raise any issues, 
or  resulted  in  a  comment  from  the  Commission,  but  did  not  raise  serious  doubts  as  to  
compatibility  with  the  Framework.  During  this  time,  the  Commission  has  issued  four 
binding  veto  decisions  in  relation  to  market  definition  of  SMP  designation  proposals, 
which  the  NRAs  were  legally  bound  to  implement,  and  25  recommendations  on 
remedies  according  to  Article  7a.  Moreover,  during  the  same  period,  NRAs  have 
withdrawn 45 notifications. Withdrawals typically occur as a result of initial discussions 
in the EU consultation process, whereby the NRA chooses to withdraw the measure and 
make  certain  modifications  ahead  of  re-notifying  a  modified  draft  measure.  In  four 
cases, the Commission withdrew its serious doubts at the end of the procedure.   

terms  of  compliance  with 

In 
the  2015 
Implementation Report shows that while considerable progress has been made to date in 
the implementation of the Commission's 2009 Termination Rates Recommendation, with 
the  vast  majority  of  NRAs  now  applying  a  costing  methodology  in  line  with  the 

the  Commission's  Recommendations, 

90 Ofcom defined and implemented the concept of Virtual Unbundled Local Access (VULA), which was 
intended to replicate as a far as possible the functionality of unbundling over an active access connection, 
in a 2010 market review of ‘wholesale local access’. 
91 Study on How to Build a Ubiquitous EU Digital Society, November 2013, IP/A/ITRE/ST/2012-09; see 
for example p. 180. 
92  In  particular,  with  regards  to  imposing  remedies,  the  balance  between  achieving  harmonisation  in  a 
flexible  framework  appears  to  be  tilted  in  favour  of  flexibility  neglecting  needs  for  consistency.  For 
example, whilst remedies are imposed on operators by NRAs at the national level, the Commission and 
BEREC almost exclusively input through non-binding instruments in order to attempt to achieve EU-wide 
regulatory consistency on this level. In the past, this "soft law" approach has led to significant differences 
in  some  areas,  clearly  proving  to  be  an  obstacle  for  the  development  of  a  Single  Market.  In  addition, 
BEREC, as one of the key stakeholders at European level, has been faced with criticism, that it  – in its 
current governance structure is primarily motivated by a desire for self-determination, and that it delivers 
verdicts based on a ‘lowest common denominator’, or prioritises flexibility over consistency in the Single 
Market (see the section 3.7.1 in the study on How to Build a Ubiquitous EU Digital Society). 
93 Study on How to Build a Ubiquitous EU Digital Society, November 2013, IP/A/ITRE/ST/2012-09; see 
for example p. 29 
94  In  particular  with  regards  to  the  provision  of  business  services  and  mobile  markets,  providers  face 
multiple  obstacles  in  offering  effective  trans-European  services,  such  as  different  designs  in  access 
products,  different  pricing  structures,  which  cannot  be  explained  solely  by  underlying  different  cost 
structures. 

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Commission's  recommended  approach  both  regarding  fixed  and  mobile  termination 
rates, leading to significantly lower termination rates across the EU, deviations from the 
recommended approach still remain (for mobile termination: DE, NL, FI; for fixed: BE, 
CY,  DE,  FI,  NL,  PL).  Concerning  regulation  of  the  broadband  markets,  while  a  trend 
can  nevertheless  be  detected  that  an  increasing  number  of  NRAs  recently  adopted 
regulatory  approaches  for  the  broadband  markets  (in  particular  NGA/fibre  regulation) 
broadly  in  line  with  the  Commission's  2013  Recommendation  on  consistent  non-
discrimination  obligations  and  costing  methodologies,  not  all  NRAs  yet  follow  the 
recommended approach.  

Diverging  regulatory  practices  in  the  individual  national  markets  can  have  a  profound 
effect  on  cross-border  trade  and,  thus,  on  the  development  of  a  Single  Market  in 
electronic  communications  and  may  seriously  distort  competition  across  the  EU  by 
"levelling"  the  EU-wide  playing-field95.  Diverging  practices  also  affect  predictability 
and the attractiveness of the telecom sector to institutional investors who are willing to 
invest  in  a  common  European  market;  even  relatively  smaller  operators  and  project 
companies interested in network roll-out tend to rely on a pan-European or even global 
capital market in order to obtain funding.  

While no methodology exists yet to measure the exact impact of the lack of consistency 
on  regulatory  outcomes,  market  players  and  end-users,  a  lack  of  consistency  in 
regulatory  responses  to  similar  problems  appears  to  affect  not  just  cross-border 
operators, which thereby face greater internal market barriers, but also seems to result in 
different  levels  of  effectiveness  of  national  regulatory  regimes  in  fostering  the  best 
possible  connectivity  at  affordable  prices  for  end-users.  In  other  words,  regulatory 
choices  such  as  those  regarding  access  obligations  and  the  pricing  of  legacy  networks 
have an impact on the investment decisions of operators. In this way, end-users pay the 
consequences of inconsistent and potentially sub-optimal regulatory decisions, affecting 
retail  markets.  An  example  is  the  regulation  of  voice  termination  rates,  where  the 
Commission,  BEREC  and  most  national  regulators  agree  that  a  particular  approach  to 
the imposition of price caps has the best effect on competition and on end-users, without 
constraining  investment.  The  fact  that  certain  national  regulators  do  not  follow  that 
common approach has a detrimental effect on end-users within those jurisdictions, which 
cannot enjoy the benefits of the full application of the framework's principles according 
to accepted regulatory practices (in this case, prices better aligned to underlying costs).    

The  negative  impact  of  fragmentation  on  business  users  provides  an  example  of  the 
enduring nature of these problems and difficulties in using current tools to address them. 
Concerns  over  fragmentation  in  the  market  for  business  communications  were  first 

95 Significant divergences in the pursuit of existing regulatory principles and of how the objectives of the 
regulatory  framework  are  implemented  across  the  EU  can  create  considerable  obstacles  to  cross-border 
trade and market entry. For example, on the fixed side, only a few operators have become specialised in 
offering pan-European services to multi-national corporations; almost exclusively in the business sector. 
However, these operators claim to experience difficulties in effectively meeting customer needs due to the 
fragmentation  of  conditions  in  the  local  markets  in  which  they  procure  access  links.  At  the  same  time, 
such differences create diverging competitive and technical conditions which hamper the development of 
the internal market. Similarly, a 2012  study claims that diverging regulatory approaches to NGA, which 
have  a  dampening  effect  on  market  entry,  appear  to  contribute  to  a  reduced  level  of  access  based 
competition  in  NGA.  This  trend,  in  turn,  seems  to  have  had  a  negative  impact  on  take-up  of  very  high 
speed broadband connections. 

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raised  in  a  survey  conducted  by  the  predecessor  to  BEREC,  the  European  Regulators 
Group  (ERG)  in  2009,96  validated  in  a  further  survey  published  in  2013,97  and  have 
subsequently  been  reaffirmed  by  business  end-users  in  the  context  of  studies  for  the 
European Commission in 201198, 201599 and 2016.100 Yet in an interview conducted in 
2016 for study SMART 2015/0002, INTUG observed that it still had concerns over the 
ability of business issues to be effectively addressed under the existing institutional set-
up.  

A 2011 Commission study on the cost of non-Europe in telecoms101 estimated the cost of 
regulatory  policies  divergences  between  MS  to  55  billion  euro  at  EU  level.  Further 
evidence  on  the  implications  of  a  lack  of  consistency  in  the  regulatory  approach  to 
business  communications  can  be  found  in  a  2013  study  conducted  for  INTUG  and 
ECTA102. As part of that work, it has been estimated that the patchy regulatory situation 
leads to an untapped economic potential of 90bn euro for the EU. 

In  accordance  with  the  results  of  the  public  consultation,  large  operators  (incumbents 
and alternatives) attach more importance to the contribution of access regulation to the 
Single  market.  They  refer  to  the  higher  than  necessary  costs  and  burden  of  providing 
services in multiple countries or on a cross-border basis but have not provided specific 
quantification. More importantly, they refer to the lack of legal certainty brought about 
by  the  fact  that  the  consistency  procedures  in  place  do  not  grant  binding  enforcement 
powers  to  the  Commission  and  that  the  consistency  rules  are  based  on  soft  law 
instruments,  such  as  Recommendations.  Operators  also  point  to  the  failure  to  facilitate 
the  consistent  treatment  of  business  connectivity  used  to  serve  multi-national 
corporations.  Indeed  large  (non  telecom)  businesses  refer  to  issues  in  obtaining  fit  for 
purpose  and  competitively  provided  services.  Issues  associated  with  roaming  were 
quoted  by  consumer  associations  and  national  authorities  (though  these  are  ultimately 
settled through alternative instruments like the Roaming Regulation and as amended by 
the TSM Regulation, and subsequent wholesale roaming review103).  

BEREC's  role  in  supporting  consistent  outcomes  has  received  mixed  feedback,  as 
discussed below in  the dedicated sections.  BEREC’s current  institutional set-up results 
in  it  often  opting  for  greater  flexibility  or  the  lowest  common  denominator  instead  of 
focusing on a harmonised approach for the single market. 

96  ERG  report  on  the  regulation  of  access  products  necessary  to  deliver  business  connectivity  services 
ERG (09) 51 http://berec.europa.eu/doc/publications/2009/erg_09_51_business_services_paper_final.pdf 
97 WIK (2013) Business Communications, economic growth and the competitive challenge 
98  Ecorys,  TNO,  TU  Delft  study  on  the  cost  of  non-Europe  in  telecoms,  "steps  towards  a  truly  internal 
market for electronic communications", November 2011. 
99 SMART 2014/0023 Access and Interoperability standards for the promotion of the internal market for 
electronic communications 
100  Regulatory,  in  particular  access,  regimes  for  network  investment  models  in  Europe  (SMART 
2015/0002)  

101  Ecorys,  TNO,  TU  Delft  study  on  the  cost of  non-Europe  in  telecoms,  "steps  towards  a  truly internal 
market for electronic communications", November 2011. 
102 WIK (2013)  "Business  Communications,  economic  growth  and  the  competitive  challenge",  study for 
INTUG and ECTA 
103 See also http://europa.eu/rapid/press-release_IP-15-5265_en.htm 

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7.2.3.2. Effectiveness of spectrum regulation area  

Promoting competition 

A first area to assess the effectiveness of the framework provisions regarding spectrum is 
that  of  its  contribution  to  make  spectrum  available  for  electronic  communications 
services,  and  in  particular  to  wireless  broadband.  The  2012  Radio  Spectrum  Policy 
Programme  (RSPP)  setting  out  the  ambitious  target  of  identifying  no  less  than  1,200 
MHz  for  wireless  broadband  by  2015  was  adopted  for  this  purpose  under  the 
framework104. 

Today,  990  MHz  have  been  harmonised  for  wireless  broadband  through  technical 
implementation  decisions  that  lay  down  conditions  for  an  efficient  use  of  spectrum.  If 
the technical harmonisation that has not yet been fully enacted at Member State level is 
included, then the corresponding figure is 1,268 MHz. This means that the framework as 
the  underpinning  basis  on  which  the  programme  was  built,  has  enabled  the  EU  to 
identify  more  spectrum  for  wireless  broadband  than  other  world  regions  such  as 
Australia,  South  Korea,  Japan  and  the  United  States.105  Of  this  range  of  harmonised 
frequencies, Member States had in 2015 on average actually assigned only 708 MHz for 
wireless broadband, still far below the RSPP target, although this amount represents an 
increase by 77% since 2010, the last year before the entry into application of the 2009 
revision of the framework. 

This  effort  has  been  underpinned  by  14  harmonisation  decisions  adopted  between 
February  2007  and  May  2015  pursuant  to  Decision  676/2002/EC  and  in  line  with  the 
framework  foreseen  by  Article 9(2)  Framework  Directive.  These  have  enabled  the 
provision  of  electronic  communications  services  without  the  imposition  of  the  use  of 
specific technological solutions, through EU technology neutral spectrum harmonisation 
and  management  by  Member  States  in  line  with  Article  8(3)  of  the  Framework 
Directive.  

104  See  also  Annex  V  for  more  details  on  evaluation  of  the  Radio  Spectrum  Decision  and  the  Radio 
Spectrum Policy Programme. 
105 RSPG16-001 – RSPG Opinion on DSM and Framework Review, 15.12.2015, Table 1, p. 5. 

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Figure 19 Average spectrum assigned for wireless broadband in EU28 

At the same time, the process from the issuance of EU harmonisation decisions until the 
effective  assignment  of  spectrum  resources  by  each  Member  State  for  use  by  market 
actors  lasts  on  average  almost  two  years  (22.2  months).  This  is  an  obstacle  to  the 
effective  delivery  of  spectrum  to  the  market  in  the  EU.  Although  this  sometimes 
includes  a  variable  period  necessary  for  Member  States  to  amend  their  national 
frequency allocation plans, which normally lasts six months, this shows a delay of one to 
1.5 years before spectrum can actually be used by service providers.  

Moreover, the duration of national assignment processes for harmonised spectrum is not 
consistent  among  Member  States.  For  both  the  800  MHz  and  the  2.6  GHz  band,  for 
example,  the  time  between  EU  harmonisation  and  actual  assignment  varied  from  one 
month to more than four years, and for the 1.8 GHz band, from two months to almost 3.5 
years.106  

Figure 20 Timing of 800MHz spectrum awards 

106  These  statistics  exclude  countries  having  assigned  the  band  prior  to  an  EU  harmonisation  decision 
having been taken. 

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Timing of 800MHz spectrum awards107 

Assignment deadlines, also, are not subject to any coordination at EU level. In general, 
technical  harmonisation  decisions  only  specify  target  dates  by  which  the  harmonised 
technical  norms have to be implemented in the Member States, without this involving 
assignment  of  rights  of  use.  Only  in  some  instances  have  specific  decisions  by  the 
European  Parliament  and  the  Council  established  common  assignment  deadlines108, 
although, even in these cases Member States also sometimes fail to meet the deadlines.  

Finally, delays have also occurred between the granting of spectrum usage rights and the 
date  when  spectrum  can  actually  be  used  by  operators109,  as  the  framework  cannot 
ensure that assigned spectrum be effectively put into use within a certain deadline from 
the date of award.  

As  to  the  need  to  ensure  that  spectrum  is  effectively  used  by  the  usage  right  holders, 
there is no consistent approach among Member States to allow the withdrawal of rights 
if conditions attached thereto are not met in a timely fashion (although a few do it). This 
situation  threatens  the  effective  and  efficient  spectrum  use  and  the  promotion  of 
competition in the EU.  

In  conclusion,  the  ability  of  the  framework  to  deliver  on  technical  harmonisation  has 
been more pronounced than its capacity to ensure timely, effective and consistent release 
of  the  spectrum  thus  harmonised,  a  point  affirmed  by  stakeholders  responding  to  the 
public consultation, in particular by operators who were the first stakeholders affected. 
Statistical  analysis  confirms  that  delays  in  releasing  spectrum  and  in  particular  in 
assigning  spectrum  are  associated  with  delays  in  network  rollout  (in  this  case:  4G 
rollout) and subsequent delays in the availability and take-up of services by consumers 
and businesses110.   

It is however also important to underline that the award of usage rights does not by itself 
guarantee  effective  exploitation  of the  spectrum  assigned.  First,  the  market impact  and 
related end-user benefits will be produced, in the majority of cases, only sometime after 
assignment.  Second,  other  factors,  such  as  investment  conditions,  capital  availability, 
technological  progress,  demand  development  and  competitive  context,  equipment 
availability111,  level  of  cross-border  interference  and  the  conditions  attached  to  the 

107 Please note that 800MHz band was assigned early 2016 in Poland.  
108 With the adoption of the 2012 Radio Spectrum Policy Programme (RSPP) common deadlines were set 
for carrying out the authorisation process by 31.12.2012 in the 3.4-3.8 MHz, 2.5-2.69 MHz and 900-1800 
MHz bands (article 6.2) and by 1.1.2013 in the 800 MHz band (article 6.4). These decisions account for 
four out of the 11 bands (36.4%) covered by the 14 technical harmonisation decisions. More recently, the 
Commission  has  proposed  a  common  assignment  date  of  30.6.2020  in  its  proposal  for  a  decision 
concerning the 700 MHz band. 
109 For instance in the case of Spain, the authorisation process regarding the 800 MHz band was carried out 
in 2011 and the spectrum made effectively available to operators in 2015. 
110  GSMA's  report  The  socio-economic  benefits  of  greater  spectrum  policy  harmonisation  in  the  EU 
(2015) shows positive correlations between the auction award dates, the launch of LTE services and the 
4G penetration rates.  
111  The  availability  of  equipment  is  partly  dependent  on  the  scale  of  network  deployment  which  in  turn 
depends heavily on the spectrum assignment process. The more aligned the timing of assignment across 
several  countries  is,  the  more  scope  there  is  for  equipment  manufacturers  to  benefit  from  economies  of 
scale. 

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spectrum  usage  rights,  play  an  important  role  in  shaping  network  roll-out,  service 
delivery  and  the  possibility  for  uptake.  Delivery  of  spectrum  to  market  can  thus  only 
facilitate,  not  guarantee  attainment  of  all  the  objectives  of  spectrum  regulation  and 
adjacent policies. 

Besides factors related to the general business environment and the specific situation in 
which  the  recipients  of  rights  of  usage  find  themselves  at  the  time  of  assignment,  the 
conditions  attached  to  the  use  of  spectrum  play  a  critical  role  in  determining  how  the 
spectrum concerned can be used and further accessed.  

The framework circumscribes the kind/type of conditions that can be attached to rights 
of  use  for  electronic  communications  services,  while  leaving  to  Member  States  the 
flexibility  to  identify  one  or  more  conditions  within  the  closed  list  provided  for  in  the 
Annex  to  the  Authorisation  Directive.  In  general,  their  specification  in  the  framework 
has  proven  to  be  appropriately  comprehensive  and  functionally  adequate,  in  particular 
with  regard  to  more  technical  conditions,  as  neither  authorities  nor  concerned  parties 
have indicated problems in this respect.  

However,  the  general  terms  in  which  the  framework  states  these  conditions  leave 
significant  leeway  for  Member  States  to  detail  them  in  ways  capable  in  some  cases  of 
influencing  the  effectiveness  of  how  EU  general  objectives  are  pursued.  In  respect  of 
individual  rights  of  use,  this  is  particularly  well  illustrated  by  the  possibility  for 
undertakings to make voluntary commitments in the context of an assignment procedure. 
In practice, such conditions are embedded, often already at legislative level, in the pre-
requisites for participation in the assignment procedure leaving no or limited margin of 
manoeuvre for the operators to genuinely decide whether and to what extent to commit 
to certain additional conditions.  

When  conditions  are  added  as  pre-requisites  for  participation  in  competitive  auction 
procedures (where  assignments  should  be  based  only  on  one  quantitative  criterion)  are 
attributed  appreciable  weight  as  qualitative  criteria  in  comparative  bidding  procedures, 
the applicant has only limited scope to decide whether and to what extent to commit to 
these  conditions,  since  the  only  alternative  would  be  not  to  participate  in  the  selection 
procedure.  While  this  would  not  necessarily  run  against  the  current  wording  of  the 
Regulatory  Framework  (and  may  sometimes  be  necessary  to  pursue  objectives  in  line 
with EU law), this has nevertheless opened the door for any kind of additional condition 
at national level, which may have significant impacts on the effective costs for the use of 
the spectrum and/or on the competitive structure of the market, with little or no scrutiny 
available, unlike for access-related regulatory obligations which are subject to EU-level 
consistency check under Article 7/7a procedures.. The regulatory framework is also not 
clear on the question whether such prerequisite commitments of a non-voluntary nature 
form  part  of  the  authorisation  conditions  as  such  as  allowed  under  Annex  B  of  the 
Authorisation  Directive.  Should  they  not  be  considered  part  of  the  authorisation 
conditions,  a  transfer  of  the  right  of  use  would  leave  the  commitment  with  the  initial 
holder.     

The  following  pre-requisites  have  been  applied  to  major  assignment  procedures: 
minimum capital requirements, to be maintained for the whole duration of the rights of 
use; obligation for incumbent operators to provide any new entrant with site-sharing or 
national  roaming  reference  offers  for  some/all  services  for  determined/undetermined 
periods of time; holding spectrum holding caps, applicable for the whole duration of the 
rights  of  use  and  often  also  involving  spectrum  holdings  not  subject  to  assignment; 

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hosting  MVNOs  at  regulated  price;  provision  of  specific  retail  tariff  plans;  release  of 
other  spectrum  holdings;  compensation  to  previous  holders  or  third  parties  affected  by 
potential interferences112.  

While  it  is  not  excluded  that  these  additional  commitments  may  promote  the 
achievement  of  the  general  objectives  of  the  regulatory  framework  along  with  more 
national objectives, they often represent a large regulatory layer which is subject only to 
requirements  of  proportionality,  non-discrimination, 
very  generally  described 
transparency and objectivity, in contrast with the imposition of similar obligations in the 
context  of  ex  ante  market  regulation.  This  might  therefore  go  against  the  general 
principles  in  the  regulatory  framework  of  limiting  overregulation  and  ensuring 
regulatory predictability and consistent regulatory approaches.  

In  the  same  way,  the  auction  reserve  prices  and/or  imposition  of  spectrum  fees  are 
subject to the specific requirements of Article 13 of the Authorisation Directive aimed at 
ensuring  consistency  with  the  objectives  of  the  framework.  This  is  however  often 
contested  in  practice.  due  to  the lack  of  transparency  in  the  identification  of  the  initial 
reserve  pricing  value  or  to  the  lack  of  proportionality  and  justification  of  the  different 
criteria applied to ensure the optimal use of spectrum113, which is often already defined 
by national legislation. 

The modification of spectrum right conditions may also have a significant impact on the 
regulatory conditions faced by the operator as well as on the overall market competitive 
structure, even more so where different conditions apply to different assignees.114 While 
Article  14  of  the  Authorisation  Directive  makes  amendments  subject  to  certain 
harmonised  procedural requirements,  the substance  and extent  of  possible  amendments 
are  again  only  minimally  harmonised,  unlike  amendments  of  often  equally  relevant 
regulatory  obligations  which  may  be  imposed  in  the  context  of  ex  ante  market 
regulation,  in  spite  of  general  regulatory  objectives  to  limit  overregulation  and  ensure 
legal predictability and consistency of policy approaches. 

The  ex  post  (only)  enforcement  of  more  general  principles  governing  spectrum 
conditions  (such  as  proportionality,  non-discrimination, 
transparency,  objective 
justification,  in  particular  with  regard  to  the  harmonised  policy  objectives)  has 
sometimes  proven  not  to  be  the  most  effective  way  to  address  problems  related  to 
assignment conditions once these have been imposed and spectrum has effectively been 
made available to operators. For instance, such ex post intervention may have distorting 
impacts on the market competitive dynamics, on the efficient usage of spectrum and/or 
on legal certainty. This is especially the case in view of the strict link between the kind 
of  commitments  made  and  the  assignment  procedure,  since  infringements  actions, 

112  For  an  overview  of  different  participation/assessment  criteria  applied  across  EU  see  also  Radio 
Spectrum  Policy  Group  Report  on  Assignment  and  Pricing  Methods,  RSPG09-298,  available  at 
http://rspg-spectrum.eu/wp-
content/uploads/2013/05/rspg09_298_final_report_assignment_pricing_122009.pdf  
113  Four  infringement  cases  specifically  concerning  the  application  of  Article  13  of  the  Authorisation 
Directive  were  brought  since  its  entry  into  force  in  2002.  These  cases  only  represent  a  fraction  of  the 
overall  number  of  cases  dealt  with  in  pre-infringement  proceedings,  where  Member  State  clarifications 
and/or leave sufficient doubt as to the existence of a breach of the regulatory framework that the opening 
of an infringement procedure does not appear justified. 
114  This  does  not  necessarily  imply  a  breach  of  the  non-discrimination  principle,  for  instance  in  case  of 
different timing of amendments requests, but is still likely to yield different impacts on competition. 

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including  the  actions  preceding  the  launch  of  such  infringements,  may  take  significant 
time and risk to affect or even increase the legal uncertainty, the risk of litigation and the 
possibility  to  further  efficiently  use  the  spectrum  resources  at  stake.  Moreover, 
administrative  and  infringement  proceedings  would  run  the  risk  of  slowing  down  the 
actual assignment of spectrum resources, running contrary to the ambition to ensure that 
sufficient spectral resources are made available to the market (which in respect of certain 
bands, such as those identified in the RSPP, is also a legal requirement by certain dates). 
An  ex  ante  mechanism,  which  enables  to  check  the  consistency  of  the  choice  and 
definition  of  certain  license  conditions  with  established  regulatory  and  competition 
based principles, could possibly avoid this problem.115 

In  conclusion,  the  harmonisation  approach  of  the  current  framework  has  not  achieved 
sufficient convergence of the actual conditions attached to individual licences or of the 
underlying  motivations  to  impose  such  conditions,  thereby  creating  regulatory 
uncertainty  and  possibly  impacting  effective  access  and  use  of  spectrum  and  market 
investment  incentives.  Moreover,  the  lack  of  consistency  is  a  problem  for  the  internal 
market  not  just  in  terms  of  providing  predictable  and  comparable  market  entry 
conditions  across  Member  States  to  cross-border  operators  (as  well  as  predictable 
conditions  for  multi-national  providers  of  finance  for  purely  national  /  local  operators) 
but also in terms of drawing on experience to identify the best possible results across the 
Union. In this sense, ensuring that all Member States foster the best spectrum solutions 
for  the  delivery  of  high  performance  broadband  and  connectivity  across  the  EU  is  an 
internal market imperative. 

The public consultation revealed a widespread sentiment among respondents that a lack 
of coordination of assignment conditions has created obstacles to or difficulties for the 
development of electronic communications, even though this did not yield any specific 
quantification. The framework does not contain measures or a mechanism for ensuring 
consistency in the choice and delineation of the license conditions with the objectives set 
out  in  the  Framework  and  across  Member  States.  Also  the  objectives  as  currently 
defined  are  rather  general  and  hence  difficult  for  the  Commission  to  enforce  as 
illustrated above.  

Similarly,  many  stakeholders  –  including  operators,  OTTs,  equipment  manufacturers  - 
consider  that  the  absence  of  coordination  among  selection  methods  has  impeded  the 
development  of  electronic  communications,  without  however  providing  for  precise 
measurement thereof. The choice and definition of selection methods is often contested 
and  subject  to  national  litigation  and  has  triggered  several  pilot  and  infringements 
procedures116. As mentioned above, however, experience shows that intervening only ex 

115 There is no accepted methodology to analyse these aspects in quantitative terms. It must be underlined 
that  notions  such  as  legal  certainty  and  proportionality  have  an  inherently  legal  function  that  is 
justificatory in nature. Their persuasive weight is based on a totality of considerations that extends beyond 
any simple one-dimensional quantitative measure. Moreover, any economic impact posited to derive from 
their application is specific to the award process and must therefore be analysed in this context. 
116  Since  the  entry  into  force  of  Directive  2002/20/EC  (including  the  original  version  that  was  only 
marginally modified in 2009, in particular with regard to spectrum assignments), a total of 13 NIF cases 
have  been  opened,  concerning  in  particular  the  application  of  Article  5  and/or  7  of  the  Authorisation 
Directive  governing  spectrum  assignment  procedures  and  criteria.  These  cases  are  only  a  fraction  of 
overall  problematic  cases  dealt  in  the  context  of  the  pre-infringement  procedure  at  service  level,  where 
clarifications  and/or  amendments  by  national  authorities  may  already  address  the  concern  raised  by  the 
services and prevent the opening of an infringement procedure.  

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post  is  difficult  and  sometimes  counterproductive  (for  instance  when  it  risks  further 
delaying  the  actual  availability  of  spectrum  to  the  market  or  can  affect  assignments 
already operational). Finally, as confirmed in the public consultation and as mentioned 
above  with  regard  to  conditions  linked  to  commitments  made  in  selection  procedures, 
some  elements  used  in  the  design  of  selection  process  such  as  spectrum  caps  and 
reservation of spectrum are likely to influence the conditions for entry to national mobile 
markets and their competitive structure as, unlike for ex ante market regulation, their use 
is  not  always  the  result  of  a  thorough  analysis  of  the  competitive  market  situation  but 
based on other national policy considerations which risk leading to inefficient outcomes, 
sometimes  at  odds  with  regulatory  objectives  of  the  framework  such  as  avoiding 
overregulation and ensuring legal consistency and predictability.  

While the precise nature of the negative impacts that this has caused has been less easy 
to identify, it accentuates the fact that  most of the current rules of the framework only 
specify  too  general  requirements  as  to  how  selection  processes  are  to  be  designed  (for 
instance  regarding  what  selection  process  a  Member  State  may  choose  and  what 
conditions  may  govern  it)  and  enacted  in  operational  terms.  Respondents  to  the  public 
consultation  have  also  generally  expressed 
lack 
transparency  and  justification  when  selecting  and  designing  the  selection  process  for 
awarding spectrum which may stifle network investment decisions and thereby delay the 
production of tangible benefits for end-users especially in terms of quality of service and 
adoption of innovative wireless technologies.  

that  Member  State  decisions 

Given  the  importance  of  spectrum  for  entry  and  position  on  the  market,  the  lack  of 
transparent criteria and sound pro-competitive safeguards can lead to a situation where a 
market  player  which  failed  to  ensure  a  sufficient  amount  of  spectrum  in  a  spectrum 
auction may no longer effectively compete on the market; while an operator which seeks 
to differentiate by quality on the market may be constrained from acquiring the assets / 
running  the  business  model  that  it  seeks.  In  order  to  mitigate  such  risks,  the  operators 
may feel obliged to offer relatively high prices for spectrum and to accept other onerous 
conditions,  which  in  turn  may  impact  subsequent  investments  in  the  network.  Such 
uncertainty can also make market players more reluctant to devise long-term investment 
plans.  

As  a  result,  there  seems  to  be  room  for  improving  pro-competitive  safeguards  and 
coordination  mechanisms  at  the  level  of  the  framework  to  enhance  consistency  with 
framework objectives and regulatory principles across the EU. Such intervention would 
also allow addressing the abovementioned perception among market actors of a lack of 
coordination that may also reduce their competitive zeal in devising strategies and their 
willingness to compete outside of their home market. 

Development of the Internal Market 

The  framework  has  set  out  a  mechanism,  established  in  Radio  Spectrum  Decision,  for 
the coordination of policy approaches and of harmonised conditions for the availability 
and efficient use of radio spectrum necessary for the functioning of the Internal Market. 
Its  effective  application  has  led  to  the  adoption  of  harmonised  technical  conditions  for 

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the use of spectrum for wireless broadband and for other uses in support of various EU 
policies117. 

As it has been pointed out above, Member States have made significant contributions to 
this  end  by  cooperating  with  the  Commission  on  the  harmonisation  of  technical  usage 
conditions  for  frequency  bands  dedicated 
to  electronic  communications,  and 
subsequently  implementing  them  domestically,  which  has  guaranteed  interference-free 
operation within their respective territories.118 Another important element in this respect 
is the operational coordination of efforts to free bands by migrating incumbent users to 
alternative  frequency  bands.  Without  cooperation  on  this  matter,  the  concerned  bands 
may be exposed to cross-border interference, which may disturb the concerned services 
to the extent of them becoming in fact unusable. Discounting such problems in relation 
to  third  countries  to  which  the  framework  does  not  apply,  the  experience  thus  far  has 
attested to the effectiveness of the framework in ensuring Member State cooperation on 
this subject matter in most cases, both on a bilateral basis as well as through the RSPG 
ad  hoc  working  group  advising  the  Commission  on  these  issues  ("RSPG  good  offices 
working group"). In one particular case, the RSPG good offices has been engaged more 
intensively  to  address  persistent  cross-border  interferences  impeding  the  use  of 
harmonised  spectrum  for  electronic  communications.  In  all  other  cases,  technical 
harmonisation  and  coordination  have  worked  relatively  effectively  to  ensure  the 
availability of spectrum resources. Thus, while the RSPG good offices have successfully 
identified  the  problem  and  its  possible  solutions,  the  lack  of  any  path  towards 
enforcement has shown the limits of the effectiveness of their work, which suggests that 
some  means  of  making  more  clearly  enforceable  in  EU  law  the  outcomes  of  such 
coordination would be advantageous. Barriers to the further development of the internal 
market have thus originated more in issues of timing and coordination of procedures and 
conditions attached to the rights of use in respect of ongoing market developments than 
in  allocation  problems.  The  negative  impact  that  has  been  attributed  thereto as  regards 
operators'  competitive  strategies  for  instance  in  terms  of  their  incentives  to  enter  new 
markets has likely also impaired the internal market development, although it is has not 
been measured by how much.  

The harmonisation of technical  usage conditions  enables the interoperability of service 
delivery  across  borders.  In  practical  terms,  this  interoperability  may,  however,  be 
limited,  if  operators  and  service  providers  in  adjacent  territories  choose  different 
technical  standards,  unless  adequate  and  cost-efficient  means  for  signal  conversion  are 
available. There is no direct evidence to suggest that operators' technological choices are 
based  on  a  strategy  of  excluding  competitors,  notably  from  cross-border  entry.  Yet 
neither  have  there  been  any  noteworthy  examples  of  integrated  cross-border  service 
offerings emerging, even where one or several operators are active on both sides of the 
frontier.   

117  See  Annex  V  on  evaluation  of  the  Radio  Spectrum  Decision  and  the  Radio  Spectrum  Policy 
Programme for more details. 
118  This  has  also  produced,  as  recognised  by  responses  to  the  public  consultation,  another  important 
contribution to developing the Internal Market for equipment manufacturers and users, allowing for the 
realisation of scale economies in production and cross-border tradability of equipment. 

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Article 8(3) of the Framework Directive  calls on regulatory authorities to take specific 
measures  to  support  interoperable  services  and  end-to-end  connectivity  at  a  scale 
extending beyond their national regulatory domains. Yet, no explicit policy or regulatory 
measures have been generally taken by Member States for the promotion of the Internal 
Market  in  the  spectrum  domain,  such  as  the  facilitation  of  the  establishment  and 
development  of  trans-European  networks.  For  instance,  with  regard  to  conditions  of 
spectrum  use  and  related  authorisation  procedures,  Article  8  of  the  Authorisation 
Directive relating to the harmonised assignment of spectrum is an example as it has not 
been  applied  so  far;  this  might  illustrate  the  difficulty  in  meeting  the  particularly 
demanding criteria set for its use.   

The  lack  of  Member  State  initiatives  supporting  spectrum  usage  opportunities  across 
borders, going beyond technical harmonisation aspects, that could bolster new business 
models  in  electronic  communications  may  also  reflect  institutional  limitations.  The 
framework  currently  does  not  foresee  any  decision-making  mechanism  at  EU  level  to 
buttress  and  provide  legal  certainty  to  such  initiatives  which  would  foster  the  internal 
market.  More  generally,  the  development  of  mechanisms  in  favour  of  the  Internal 
Market  has  received  little  attention  in  the  work  of  the  RSPG  notwithstanding  its 
competence to support measures 'necessary for the establishment and functioning of the 
internal market'119. Whilst insisting on the principle of subsidiarity120, which provides an 
appropriate scrutiny mechanism to ensure that EU level action is merited, the Group has 
not  to  date  fully exploited  the opportunity  to  offer effective means of action  for issues 
beyond Member State reach. There have been some positive contributions in the RSPG 
Opinion on strategic challenges in addressing growing demand for wireless broadband121 
and on that regarding the long term strategy on the future use of the  UHF band122, the 
latter  also  including  detailed  recommendations  on  what  is  needed  to  facilitate  cross-
border  coordination  of  migration  from  one  bandwidth  to  another.  Another  example  of 
RSPG  work  beyond  the  remits  of  individual  Member  States  is  that  undertaken  by  the 
RSPG good offices. More recently, the Group has moved into the spectrum assignment 
area in its Report on Efficient awards and efficient use of spectrum123 and is considering 
a  more  active  role  in  exchanging  best  practices  and  in  setting  up  a  peer  advice 
mechanism  as  indicated  in  its  Opinion  on  DSM  and  Framework  Review124.  However, 
whilst  the  exchange  of  information  and  best  practices  can  contribute  to  improve  the 
spectrum  authorities´  expertise 
in  spectrum  assignment  design  and  practical 
implementation (which can be particularly useful for less resourced authorities), it alone 
does not have the capacity of removing barriers to the development of the single market 
if  they  do  not  result  both  in  explicit  collaboration  and  greater  operational  consistency. 
Both  these  elements  have,  as  the  sometimes  significant  disparities  in  allocating  and 
awarding  even  harmonised  spectrum  illustrate,  not  received  the  required  attention  to 
ensure  the  development  of  the  Internal  Market  in  line  with  principles  of  regulatory 
predictability  and  promotion  of  efficient  investment  and  innovation.  These  limits  to 

119 Art. 2(1) of Commission Decision 2002/622/EC of 26 July 2002 establishing a Radio Spectrum Policy 
Group,  OJ  L  198,  27.7.2002,  p.  49,  as  amended  by  Commission  Decision  2009/978/EU,  OJ  L  336, 
18.12.2009, p. 50. 
120 RSPG16-006, p. 30. 
121 Which can be found at http://rspg-spectrum.eu/rspg-opinions-main-deliverables/ 
122 http://rspg-spectrum.eu/wp-content/uploads/2013/05/RSPG15-595_final-RSPG_opinion_UHF.pdf 
123 Which can be found at http://rspg-spectrum.eu/rspg-opinions-main-deliverables/ 
124 http://rspg-spectrum.eu/wp-content/uploads/2013/05/RSPG16-001-DSM_opinion.pdf. 

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RSPG´s  action  have  in  addition  impeded  the  Groups’  contribution  to  a  strategic 
approach  to  European  spectrum  policy,  which  would  require  uniformly  raising  the 
participation level to Member State representatives with that level of responsibilities.  

It  follows  from  the  analysis  above  that  while  progress  has  been  made  in  particular  in 
relation  to  harmonising  spectrum  for  wireless  broadband,  the  provisions  concerning 
spectrum management do not sufficiently or consistently support either the single market 
objective, or the competition objective.  

7.2.3.3. Effectiveness of numbering regulation area  

69 

The  availability  of  adequate  numbering  resources  is  a  crucial  pre-requisite  for  the 
development and growth of electronic communications markets and services. NRAs are 
responsible  for  structuring  the  national  numbering  space,  setting  the  conditions  for 
allocating  and  using  numbers,  and  processing  applications  for  numbers  and  number 
blocks.  Their  aim  is  to  ensure  an  efficient  management  of  numbering  resources,  to 
support  competition  on 
the 
effectiveness  of  the  provisions  should  mainly  be  discussed  in  relation  to  the  first 
objective of the framework. The impact on the functioning of the single market should 
however  also  be  assessed,  as  competition  should  be  able to  develop  at the  level  of the 
single market.  

the  electronic  communications  market, 

therefore 

No significant problems were detected with the implementation of numbering provisions 
at national level, as confirmed also  by the study SMART 2015/003. At the same time, 
the  numbering  provisions  to  support  the  development  of  the  internal  market  for 
electronic  communications  have  not  resulted  in  intended  application,  which  puts  the 
relevance  of  some  of  them  in  current  form  in  question.  In  particular,  the  provision 
regarding European Telephone Numbering Space (ETNS) has failed to materialise. This 
has  been  partly  due  to  the  lack  of  demand  which  was  confirmed  by  the  public 
consultation on the matter in 2011125 and in the most recent public consultation on  the 
review.  Cross-border  issues  clearly  linked  to  the  objectives  of  the  framework,  such  as 
end-to-end connectivity or access to non-geographical numbers in another Member State 
or  the  extra-territorial  use  of  numbers  have  progressed  with  significant  difficulties, 
affecting  in  particular  end-users.  Notably,  national  measures  to  regulate  wholesale  or 
retail  charges  for  premium  rate  numbers  were  subject  to  judgments  of  the  Court126. 
BEREC also adopted reports in the area127.  

Furthermore,  the  effectiveness  of  the  numbering  provisions  must  also  be  evaluated 
against ongoing technological and market developments. New business models, such as 
machine to machine (M2M) services e.g., connected cars and smart meters, change the 
pattern  and  intensity  of  demand  for  numbering  resources.  M2M  growth  rates  are 
expected to be many times higher than those of the pure voice communications. In this 
new  context,  scarcity  of  numbers  might  become  an  issue  and  other  competition  and 

https://ec.europa.eu/digital-single-market/en/news/results-public-consultation-future-harmonisation-

125 
numbering-resources-provision-business  
126 See: judgment of the Court of 17 September 2015 in Case C-85/14 KPN v ACM,  OJ C 371, 9.11.2015, 
p. 9 and  Judgment of the Court of 14 April 2016 in Case C-397/14.Polkomtel v UKE.  
127 See BEREC Report BoR (12) 55 of 24 May 2012 on Special Rate Services  

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single  market  issues  might  arise.  These  are  issues  of  concern  arising  due  to  the 
increasing  use  of  cross  border  services,  and  are  now  subject  to  increasing  regulatory 
attention at EU and international fora such as CEPT and ETSI, as well as BEREC.  

In November 2015, CEPT published a draft ECC recommendation (16)02 to limit extra-
territorial  use  of  numbers.  At  the  same  time  however,  some  of  the  Member  States 
already  explicitly  allow  extraterritorial  use,  while  others  apply  a  more  restrictive 
approach. The BEREC Report BoR (16) 39 of 12 February 2016 on enabling the Internet 
of  Things  highlighted  the  areas  of  roaming,  switching  and  number  portability,  where 
special  consideration  for  M2M  is  necessary.  Concerning  switching  and  M2M  operator 
lock-in, preparatory work in ETSI and by GSMA aims to mitigate competition issues by 
creating standards for embedded (programmable) SIMs. 

The public consultation indicates that national numbers and global numbers are seen as 
likely to be sufficient and appropriate to cope with the numbering needs of M2M in the 
future,  provided  that  extraterritorial  use  of  numbers128  is  allowed  for  M2M.  Country 
codes are assigned by ITU to countries, and under existing rules, Member States adopt 
their own rules for the use of numbers within their numbering plan, in line with general 
requirements  laid  down  in  the  framework.  As  rules  regarding  extraterritorial  usage  are 
not  governed  by  the  regulatory  framework,  rules  differ  per  Member  State.  Currently, 
European  countries  are  developing  guidelines  enshrined  in  a  decision  adopted  by  the 
CEPT  proposing  to  ban  extraterritorial  usage  as  a  general  rule,  with  a  fastidious 
procedure  to  grant  exceptions  in  individual  cases.  Thus,  the  current  EU  rules  do  not 
provide  for  a  common  approach  on  conditions  for  allowing  extraterritorial  use  of 
numbers, and existing coordination efforts in CEPT to prevent regulatory fragmentation 
may  not  prove  sufficient  to  comply  with  the  requirements  of  the  Single  Market.  In 
particular,  the  current  draft  decision129  of  CEPT  raises  concerns  with  regard  to 
compliance  with  EU  Law  notably  the  requirements  Article  56  of  the  Treaty  on  the 
Functioning of the EU concerning the freedom to provide services. Moreover, the risks 
of national number scarcity cannot be excluded if numbers-based M2M services become 
massively prevalent. 

7.2.3.4. Effectiveness of the authorisation regulation area 

The rationale of the authorisation provisions is to facilitate (cross-border) market entry, 
and  therefore  competition  on  the  internal  market.  The  provisions  should  therefore  be 
evaluated  in  terms  of  their  contribution  to  the  first  two  specific  objectives  of  the 
framework.    

128 i.e. the use of E.164 numbers of one country in another country on a permanent basis. An example is 
the use of SIMs for the eCall emergency service to be installed by the car manufacturer in one country, 
while the car owner may have residence in another country. This results in a (potentially massive) demand 
for extraterritorial use of numbers. 
129  http://www.cept.org/ecc/groups/ecc/wg-nan/pt-fni/news/wg-nan-approves-draft-ecc-recommendation-
on-extra-territorial-use-of-e164-numbers/  

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It can be stated that the current authorisation provisions have had a positive impact on 
competition,  given  that  certain  difficulties130  of  entering  the  market  have  been 
eliminated, although the results are different per Member State and also depend on the 
way the rules are applied in practice.  

The revised authorisation provisions aimed at harmonising the sector-specific procedures 
and  conditions  applicable  to  operators  willing  to  provide  electronic  communications 
networks and services in a given Member State. The rules, while defining a closed list of 
sector-specific  notification  requirements  and  generally  applicable  sector-specific 
conditions,  left  some  margin  of  discretion  to  Member  States  in  defining  the  specific 
requirements  and  conditions  applicable  for  the  provision  of  electronic  communications 
services  and  networks  or  specific  categories  of  services,  among  those  allowed  by  the 
Directive. As a result, notification systems - in place in almost all Member States - differ 
in terms of modalities and information requirements.  

Moreover, in recent years there was some uncertainty in the application of the national 
notification  requirements  and  their  impact  on  the  general  authorisation  systems  and 
sector  specific  conditions  applied  in  several  Member  States.  The  Commission’s 
monitoring and enforcement action has resulted in almost all of the concerned Member 
States  removing  certain  explicit  establishment  and  guarantee/proxy  requirements  or 
abolishing additional notification requirements. 

the  scope  for 

Similarly, 
imposing  additional  financial  burden  on  electronic 
communications  operators  under  the  general  authorisation  regime  has  been  often 
questioned131. With specific regard to administrative charges, EU law, as also interpreted 
by  the  ECJ132,  limits  the  amount  of  charges  that  can  be  levied  as  a  part  of  the  general 
authorisation regime. Moreover, an analysis carried out by BEREC following input from 
stakeholders  on  obstacles  in  the  administrative  regimes  for  market  entry  and  general 
conditions  for  cross-border  provision  of  electronic  communications  services  to 
businesses identified certain operational constraints affecting the authorisation regime133. 
The results of the study SMART 2015/003 also confirm that authorisation fees may be 

130 For instance, the explicit requirement to establish or reside in a Member State of provision of services 
has been addressed with the current Regulatory Framework (see  Case C-475/12  UPC). There have been 
infringement cases based one the Framework tackling the high administrative charges imposed on small 
undertakings which could be considered as barrier to market entry for those undertaking.  
131  Six  infringement  cases  were  registered  in  NIF  specifically  concerning  the  application  of  Article  12 
Authorisation  Directive  since  its  entry  into  force  in  2002.  These  cases  are  only  a  fraction  of  overall 
problematic  cases  dealt  in  the  context  of  the  pre-infringement  procedure  at  service  level,  where 
clarifications  and/or  amendments  by  national  authorities  may  already  address  the  concern  raised  by  the 
services and prevent the opening of an infringement procedure. 
132 Judgment - 27/06/2013 - Commission v France Case C-485/11 
133 BoR(11)56, including: the obligation to set-up a legal entity or to identify a contact person/address in 
the country of provision of service, the number and kind of supporting official documents, the kind and 
level  of detail  of  supporting  information  to  be  provided  concerning  the company,  the  service  and/or the 
network  provided,  the  absence  of  on-line  notification  systems,  the  number  and  inconsistency  of 
notification categories across countries, the language barriers. Other identified barriers going beyond the 
notification (but still relevant in setting the sector-specific conditions) concerned the lack of standardised 
access products for B2B needs as well as the lack of harmonisation for numbering resources/conditions, 
number  portability,  emergency  numbers,  legal  interception  and  data  retention  requirements,  data 
protection, customer protection rules.   

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inappropriately  high  in  some  Member  States  especially  for  small  enterprises  or  new 
entrants.   

The  majority  of  respondents  to  the  public  consultation  have  indicated  a  need  to  revise 
several  aspects  of  the  general  authorisation  conditions  in  order  to  adapt  to  market 
developments  (among  others, 
to  reduce 
administrative burden and cross-border obstacles. Some respondents suggested a specific 
lighter regime for some categories of services (best efforts OTT, business services, small 
cross-border  providers),  while  several  underline  that  established  and  non-established 
operators should be subject to the same rules in the country of provision of services.  

level  playing  field  with  OTTs)  and 

In  view  of  the  above,  while  authorisation  provisions  have  had  a  positive  impact  on 
competition, at the same time the provisions have had a rather limited positive impact on 
the  functioning  of  the  single  market.  Within  the  limits  defined  by  EU  law,  the 
identification  and  specification  of  notification  requirements  and  above  all  of  sector-
specific conditions has developed along national lines and as such does not sufficiently 
take  into  account  the  specificities  of  pan-European  electronic  communications  service 
providers  (for  example  those  addressing  business-to-business  needs)  or  otherwise  of 
cross-border  /  multi-territorial  providers  that  have  to  comply  with  very  different 
requirements in each Member State.  

7.2.3.5. Effectiveness of rights of way regulation 

The rationale of the provisions on rights of way is to support (in a non-discriminatory 
and  reasonable  way)  network  rollout  and  competition  across  borders.  Therefore,  they 
should be evaluated in terms of their contribution to the first two specific objectives of 
the framework, i.e. competition and single market.    

The deployment of alternative fixed and mobile networks has been made possible thanks 
to the provisions on rights of way on, over or under public or private land. Procedures 
are in place in Member States and are being streamlined with the view to reducing the 
timing  and  the  administrative  burden.  The  maximum  time  limit  for  rights  of  way  is 
generally respected for the deployment of fixed networks, but the overall permit granting 
procedure  for  mobile  networks  generally  lasts  longer  than  6  months.  The  Commission 
has  successfully  enforced  the  provision  where  competent  authorities  discriminated 
between providers (cf. C-125/09). 

The actual conditions for acquiring rights of way  remains however extremely variable, 
not only across Member States but also inside Member States, as this is in most cases a 
competence of local authorities.134    

7.2.3.6. Effectiveness of NRAs' regulation area 

Regulatory  tasks under the  framework  are entrusted to  independent  national  regulatory 
authorities  with  the  aim  of  ensuring  impartial,  transparent  and  timely  decisions.  NRAs 
are responsible for ex ante regulation and dispute settlement between undertakings, but 

134 See also the Impact Assessment conducted in view of the proposal for measures to reduce the cost of 
broadband rollout https://ec.europa.eu/digital-single-market/en/cost-reduction-measures.  

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also  in  some  Member  States  with  spectrum  and  numbers  management  and  consumer 
issues. 

Overall the provisions concerning the NRAs are considered to have been effective as far 
as  the  goal  of  impartial  regulation  is  concerned.  Following  the  2009  review,  enhanced 
political  independence  requirements  apply  for  bodies  responsible  for  ex  ante  market 
regulation and dispute settlement between undertakings (i.e. prohibition of instructions, 
protection  from  arbitrary  dismissal,  budgetary  separation,  and  sufficient  human  and 
financial resources).  

However, the provisions regarding the independence of NRAs from political interference 
have  been  rather  difficult  to  enforce,  in  particular  in  the  context  of  mergers  between 
sector specific regulators and/or competition authorities pursued in some Member States 
in  the  past  three  years.  Nevertheless,  in  only  2014,  regulation  allowing  ministerial  or 
legislative interference with NRA activity has been removed in a number of cases, and 
the  safeguards  for  protection  of  the  regulator  against  arbitrary  dismissal  have  been 
reinforced,  following  enforcement  action  by  the  Commission.  These  developments 
confirm  two  recurring  trends  regarding  the  independence  and  regulatory  capacity  of 
NRAs. The first concerns the restructuring or modification of the competences of NRAs, 
experienced  in  no  less  than  11  Member  States  in  the  past  five  years,  often  ostensibly 
motivated by the pursuit of economies. The second expresses the propensity of Member 
States  to  keep  or  regain  control  of  regulatory  issues  by  either  transferring  back 
competences to Ministries (Spain) or trying to ensure  a power to review (Belgium, the 
Netherlands) or influence the decisions of the NRA, by exercising control over its work 
programme (Belgium, Portugal, Slovenia) or giving it policy directions (Ireland).  

The overall perception as regards the political independence of NRAs remains generally 
positive, according to the results of the public consultation. The notable exceptions come 
from Member States where the Government retains a certain ownership in the electronic 
communications market, where stakeholders generally plead for even stronger separation 
and independence requirements.  

At the same time,  possibly in the context of overall national  budgetary constraints and 
consolidation, a pressure has been observed on the NRAs financial and human resources, 
although the NRAs' budgets  are to  a large extent exclusively financed  by the sector  in 
accordance with the provisions in force. Difficulties were reported in implementing the 
provisions  regarding  the  adequate  human  and  financial  resources  and  the  budgetary 
autonomy  of  NRAs.  Member  States  have  often  claimed  that  accountability  cannot  be 
guaranteed without effective budgetary control by Member States, and that this principle 
is valid regardless of the financing source of NRAs. 

In accordance with the principle of institutional autonomy, there is no harmonisation of 
tasks and attributions under the framework. While some Member States notified four to 
five institutions functioning as NRAs (e.g. Estonia, Denmark, Belgium, Austria) others 
entrusted all regulatory functions under the framework, including  spectrum  assignment 
and some end-users provisions, to one single independent NRA (e.g. Lithuania, Croatia, 
Germany, etc.). This leads to a situation where some NRAs are essentially only entrusted 
with  ex  ante  regulation  and  dispute  settlement,  while  others  have  much  more  tools  to 
intervene  in  the  market,  especially  in  areas  with  high  impact  on  the  market  outcomes. 
The  lack  of  harmonisation  of  the  NRAs  competences  creates  inconsistent  regulatory 

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outcomes,  as  well  as  an  internal  coherence  issue  discussed  below  (i.e.  BEREC  is 
expected to issue opinions on topics for which not all of its members have jurisdiction).  

Finally,  an  element  which  affects  the  effectiveness  of  the  provisions  concerning  the 
NRA's functioning – and also the effectiveness of NRAs regulation - is that some NRAs 
lack direct enforcement powers, e.g. the ability to impose dissuasive fines. 

The outcome  of the provisions regarding NRAs  - their  performance and impact on the 
market – is rather difficult to measure.  Data exists on the number of appeals to the NRA 
decisions135, but it is not considered an appropriate indicator for the quality of the NRA's 
decisions,  among  others  because  it  rather  reflects  the  perceived  utility  of  the  judicial 
review  mechanism,  while  the  performance  of  the  latter  is  very  different  per  Member 
State (the length of an appeal procedure ranges from 2.5 to 42 months on average136). As 
regards  the  timeliness  of  NRAs'  decisions,  which  is  an  important  element  in  ensuring 
legal certainty, the Commission has had to investigate market review delays in a number 
of Member States, delays which were possibly due in part to their limited resources.    

Nevertheless,  the  overall  assessment  on  the  NRAs  performance  remains  positive.  The 
public  consultation  revealed  that  most  market  players  were  satisfied  with  the 
performance  of  the  NRAs  in  market  regulation,  with  the  expected  divide  between 
incumbent  operators  and  alternative  operators.  The  same  applies  to  dispute  resolution 
(regulation  by  litigation),  which  many  operators  prefer  to  ex  ante  regulation,  although 
the four month deadline imposed by EU law is often not respected.  The preference for 
dispute resolution is stronger with SMP operators who plead for a simplified version of 
access regulation, based on negotiations and dispute resolution. 

Based  on  the  assessment  of  the  provisions  governing  the  functioning  of  the  NRAs  as 
well as the assessment of the achievement of the objectives of the framework above, it 
can  be  stated  that  the  NRA  provisions  (including  their  tasks,  objectives  and  respective 
tools per policy area) have been supportive to the competition and consumer protection 
objective, yet not very supportive to the Single Market objective. It can indeed be argued 
that  the  degree  of  success  was  mainly  a  function  of  the  extent  to  which  their 
competences  have  allowed  NRAs  to  reach  the  respective  objectives  as  well  as  of  the 
harmonization  procedures  in  place  (relatively  more  on  access  to  networks,  less  on 
spectrum management). Finally, certain tools or mechanisms foreseen in the framework 
have  encountered  clear  implementation/enforcement  difficulties,  e.g.  cross-border 
dispute  resolution,  BEREC  issuing  opinions  on  which  not  all  its  Members  are 
competent,  etc.  The  respondents  to  public  consultations  have  identified  a  number  of 
regulatory areas in which no sufficient consistency in NRAs' activities has been achieved 
such  as  universal  service,  consumer  protection,  spectrum  regulation,  numbering, 
wholesale  termination  rates,  wholesale  access  inputs  for  pan  European  business 
consumers,  regulation  of  cable  networks.  Indeed,  the  EU  minimum  harmonisation 
approach towards consumer protection may be a source of inconsistencies, where some 

135 According to the Study on an inventory of case-law in electronic communications, SMART 2013/0018, 
only 4.87% of all decisions of the NRAs are appealed, cf. pages 52-53. However, half of the judgments 
issued concern universal service rights and obligations, market regulation and procedural issues (rights of 
defence etc.). 
136 Cf. Page 39 and figure 1 of the above study. 

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of  the  Member  States  have  gone  beyond  the  EU  minimum  protection.  In  the  area  of 
spectrum  and  numbering,  Member  States  have  broad  leeway  as  to  assignment 
conditions. While the current framework provides for certain tools to ensure consistency, 
the non-binding nature of Commission recommendations and the long and cumbersome 
harmonisation  procedures  are  leading  to  inconsistencies  with  regard  to  the  areas  of 
access regulation identified above.  

7.2.3.7. Effectiveness of other institutional provisions: BEREC and RSPG   

BEREC 

The  effectiveness  of  BEREC's  role  in  supporting  consistent  outcomes  has  received 
mixed feedback during the public consultation on the telecoms review. On the one hand 
many  stakeholders  praise  BEREC's  independent  technical  advice  such  as  that  given  to 
the  net  neutrality  and  roaming  in  the  context  of  the  negotiations  of  Regulation 
2015/2120.  Some  also  praise  BEREC's  role  in  Article  7  process.  On  the  other  hand, 
BEREC's  own  initiative  "best  practice"  guidelines  have  been  considered  less  effective. 
BEREC's  structure  as  a  group  of  NRAs  without  legal  personality137  is  perceived  to 
undermine  BEREC's  incentives  to  pursue  the  internal  market  objectives  as  opposed  to 
the individual or collective objectives of its national members.  

Furthermore, a study for the European Parliament suggests that BEREC has fallen short 
of  achieving  its  main  objective  of  furthering  the  Single  Market,  facing  criticism  that 
"BEREC  delivers  verdicts  based  on  the  "lowest  common  denominator"  or  prioritizes 
flexibility  over  consistency"138.  BEREC  on  the  other  hand  considers  that  it  has 
significantly contributed to enhancing regulatory harmonisation in Europe, mainly via its 
commitment  to  identify  regulatory  best  practices  and  monitoring  their  implementation 
by NRAs, as well as through advisory function within the market notification procedure.  

The outputs of BEREC are mainly drafted by Expert Working Groups (EWG)139 where 
the  experts  of  NRAs  participate  in  order  to  prepare  the  work  foreseen  in  the  annual 
BEREC  Work  Programme,  which  in  the  case  of  the  Opinions  issued  on  draft  market 
analysis is subject to tight deadlines. The draft documents (opinions, reports…) are then 
discussed at the level of the Contact Network (CN), which is a group not established in 
the BEREC Regulation but by BEREC's own Rules of Procedure that aims at preparing 
the  meetings  of  the  Board  of  Regulators  of  BEREC  (BoR)  and  of  the  Management 
Committee  of  the  BEREC  Office,  and  later  on  adopted  during  Plenary  meetings.  This 
process,  together  with  the  current  voting  rules  (in  most  cases  two-thirds  majority)  has 
enabled  a  good  level  of  on-the-ground  regulatory  knowledge  and  has  resulted  in  good 
level  of  technical  advice.  However,  it  should  be  noted  that  according  to  its  mandate 
BEREC should also adopt an EU-wide approach towards the issues addressed and could 
thus be more focused on addressing obstacles to the internal market.  

137 BEREC Office has legal personality, the Board of Regulators does not have legal personality.  
138 Study on How to Build a Ubiquitous EU Digital Society, November 2013, IP/A/ITRE/ST/2012-09; see 
for example p. 100. 
139 See Art.4(7) of the BEREC Regulation. 

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This was indeed one of the results of the evaluation of BEREC and the BEREC Office 
which was carried out in 2012-2013140. The evaluation study stated that BEREC tends to 
follow  a  bottom-up  approach  where  EWGs  raise  issues  and  propose  documents  to  the 
CN and the BoR and recommended that BEREC also needs a top-down approach based 
on discussion and prioritisation done at the BoR level. Since the first evaluation, BEREC 
has further developed its capacity to focus on strategic issues, e.g. by revising BEREC's 
strategy  paper141  which  identifies  priority  areas  for  BEREC's  work  and  organising 
workshops  on  key  regulatory  challenges.  However,  this  does  not  seem  to  be  fully 
achieved  as  respondents  to  the  public  consultation  have  signalled  the  need  for  more 
proactiveness  from  BEREC  on  key  topics  as  well  as  the  fact  that  BEREC’s  current 
institutional set-up results in it often opting for greater flexibility or the lowest common 
denominator  instead  of  focusing  on  a  harmonised  approach  for  the  single  market.  The 
evaluation  study  also  pointed  out  to  the  fact  that  some  functions  of  BEREC  could  be 
better defined (for example, the advisory role).  

When  considering  its  current  tasks  in  view  of  the  Opinion  on  the  Review  of  the  EU 
Electronic  Communications  Regulatory  Framework142,  BEREC  has  identified  some 
areas  where  it  could  play  a  greater  role,  such  as  through  a  broader  scope  of    BEREC 
Opinions  under  Article 7  and  7a,  issues  of  a  cross-border  nature  (such as  international 
roaming),  benchmarking  the  quality  of  Internet  Access  Services  at  European  level, 
notifications  from  operators  active  in  more  than  one  Member  State  and  developing 
technical guidelines143. Moreover, it should be noted that there are currently some tasks 
specified  in  the  BEREC  Regulation  which  are  activated  on  the  request  of  NRAs  and 
have not been exercised (for example, the provision of assistance to NRAs in the context 
of  the  analysis  of  the  relevant  market  despite  the  delays  in  carrying  out  market 
analyses/revisions by several NRAs).  

The  outcomes  of  BEREC  are  also  to  a  great  extent  influenced  by  the  non-binding 
character  of  its  tasks,  which  makes  it  strongly  dependent  on  the  NRAs  willingness  to 
take on board the recommendations provided by BEREC. One example is the case of the 
termination  rates  which  is  described  in  section  7.1.1  and  shows  the  limitations  of  the 
current setting and the distortions and impact in the market derived from that.   

Within  the  context  of  the  evaluation  of  the  BEREC  Regulation,  it  is  also  necessary  to 
assess the alignment of the goals of the BEREC Office as an EU agency with the current 
EU priorities. Through its support to BEREC, the current functions of the BEREC Office 
should ultimately contribute to the development of the single market and the consistent 

140 This evaluation carried out in accordance with the requirement established in Article 15 of the BEREC 
Regulation:  'Study  on  the  evaluation  of  BEREC  and  the  BEREC  Office'  by  PwC  of  September  2012, 
Commission Staff Working Document of April 2013 (SWD(2013) 152 final), which were followed by EP 
Report of November 2013 (2013/2053(INI), A7-0378/2013).  It should be noted that the outcome of that 
evaluation should be treated with caution as some of the tasks of BEREC had not been carried out at that 
time and, moreover, the evaluation could not reflect on the aspects related to the Common Approach on 
decentralised  agencies,  which  was  adopted  by  Joint  Statement  of  the  European  Parliament,  the  Council 
and the Commission in July 2012. 
141 
http://berec.europa.eu/eng/document_register/subject_matter/berec/annual_work_programmes/4785-
berec-strategy-2015-2017  
142 BoR (15) 206, of 10 December 2015. 
143 BoR (15) 206, of 10 December 2015. 

See 

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application  of  the  rules.  It  is  however  quite  a  unique  situation  where  an  agency  –  the 
BEREC Office - was established to exclusively perform a support function for another 
regulatory  body  –  BEREC  -  established  by  EU  law.144Moreover,  despite  its  relatively 
limited  functions,  the  BEREC  Office  has  to  follow  the  same  detailed  set  of  rules  that 
apply  to  all  EU  agencies  (financial,  staff/implementing  rules,  procurement,  reporting, 
etc.). 

In this regard, the 2013 evaluation study concluded that BEREC could make better use 
of  the  BEREC  Office  for  both  administrative  and  professional  support  purposes, 
especially when supporting EWGs, and that, to the extent that the regulatory framework 
limits the evolution of the BEREC Office, it should be considered to adapt the BEREC 
Regulation.  

It should also be signalled that the current BEREC Regulation does not contain specific 
recurrent  revision  requirements  as  it  is  the  case  for  other  EU  agencies,  which  would 
allow for a periodic check of the alignment of the agency's goals with EU priorities. 

RSPG  

The RSPG was established145 by the Commission, following the adoption of the Radio 
Spectrum  Decision  by  the  Council  and  European  Parliament,  as  a  high-level  advisory 
group  composed  of  representatives  of  Member  States  -  coming  from  NRAs  and/or 
Ministries – and the Commission. It was set up to assist and advise the Commission on 
radio  spectrum  policy  issues  generally  and  to  contribute  to  the  development  of  radio 
spectrum policy in the Union taking into account not only technical parameters but also 
economic,  political,  cultural,  strategic,  health  and  social  considerations.  As  part  of  the 
last  review  of  the  regulatory  framework  in  2009  the  remit  of  the  RSPG  has  been 
extended to cover issues such as the preparation of radio spectrum policy programmes in 
line  with  Article  8a(3)  of  the  Framework  Directive  2002/21/EC  and  to  provide  advice 
upon request to the Council and the European Parliament, in a strictly advisory role. 

The Member  States representatives in the RSPG are  expected  to  provide technical  and 
policy expertise coupled with a thorough knowledge of the national situation and a wider 
policy  perspective.  RSPG  Opinions  and  Reports  constitute  important  elements  in  the 
development and implementation of the EU spectrum policy. They also contribute  to a 
strong  basis  for  major  legislative  proposals146,  especially  when  they  have  addressed 
strategic issues upstream of spectrum assignment147 and even of technical harmonisation 
of  radio  spectrum.  However,  the  current  RSPG  lacks  permanent  senior  participation 
from  all  the  Member  States  and  may  therefore  struggle  to  provide  the  expected  high-
level advice needed for the development of a common radio spectrum policy in the EU.  

144 This was not proposed by the Commission but was the outcome of the negotiation of the 2009 telecoms 
package. 
145 Commission Decision 2002/622/EC 
146  2009  review  of  the  Regulatory  Framework,  Radio  Spectrum  Policy  Programme,  700  MHz  Decision 
(under deliberation) 
147  WAPECS,  digital  switchover,  secondary  trading,  substantive  input  on  World  Radiocommunication 
Conferences 

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The Reports issued by the Group include useful information about differences between 
Member  States  on  the  one  hand  and  common  problems  and/or  practices  on  the  other 
necessary to develop EU approaches of spectrum usage and policy with regard to various 
sectors. The value of this information is at times tempered by the tendency, shown in a 
number of cases, for the RSPG to adopt an intergovernmental approach eager to protect 
national interests and  resulting reluctance  to  address  the EU internal  market  aspects of 
the  topics  under  examination,  rather  focusing  on  national  considerations  (e.g.  the 
spectrum  awards  mechanisms, 
the  preparation  of  World  Radiocommunication 
Conferences  2015)  or  to  propose  common  or  consistent  solutions  for  Member  States. 
There is also a trend to enter into technical details that is not appropriate for a piece of 
strategic  advice.  As  a  consequence,  a  defensive  position  risks  prevailing  over  the 
necessary  strategic  technological,  economic  or  policy  choices  that  need  to  be  made  in 
relation  to  the  establishment  and  functioning  of  the  EU  internal  market  in  a  period  of 
major change in technology and of end-user needs. 

The Group's outputs are often developed by only a small number of Member States with 
sufficient resources to invest in working group participation. As a result, these members 
exert a strong influence on advice provided by the RSPG. In addition, national positions 
regarding spectrum management may not always be fully coordinated nationaly and, as a 
consequence, there is no guarantee that RSPG members always represent a position fully 
backed by their Member State.  

7.2.3.8. Effectiveness of standardisation regulation area 

The standardisation provisions consist mainly of promoting or indeed mandating the use 
of  European  standards,  with  a  view  to  ensuring  interoperability  of  services  and 
improving freedom of choice for users. Therefore this policy area, primarily relevant to 
the development of the internal market, is also relevant for the promotion of competition 
and end-user rights.  

The  policy  instruments  provided  by  legislation  have  been  used  quite  rarely  by  the 
Commission since the last amendment of the Framework Directive in 2009. There have 
been  no  changes  to  the  list  of  voluntary  standards  and  there  have  been  no  standards 
mandated.  The  Commission  has  only  issued  one  mandate  to  ETSI,  in  the  area  of 
emergency  call  location,  and  it  is  foreseen  that  more  standardisation  effort  will  be 
needed in this area. Nevertheless it appears that the competence for the Commission to 
act if necessary per se might have helped promote voluntary industry consensus so far, in 
particular  in  areas  with  high  relevance  for  innovation  such  as  ultrahigh  definition 
television, connected TV and access and interconnection products.  

While  it  can  hence  be  argued  that  this  voluntary  and  market-driven  approach  to 
standardisation,  supported  by  most  stakeholders  in  the  public  consultation,  has  been 
effective, it is difficult to establish a definitive causal link between those provisions and 
the achievement of the objectives of the framework in this regulation area and therefore 
also to measure their impacts. Moreover, standardisation of regulated access products to 
fixed  networks,  wholesale  Ethernet  access  product  specifications  for  business  services 
and reference offers for wholesale access inputs in the market for wholesale high quality 
access provided at a fixed location in the case of cross-border business service provision 

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were  mentioned  in  the  public  consultation  as  examples  of  areas  where  a  more  explicit 
EU approach can add value.  

7.2.3.9. Effectiveness of end-user protection regulation area  

Sector-specific  end-user  protection  rules  complement  general  consumer  protection  and 
aim at a high level of consumer protection in the electronic communications sector, the 
third  specific  objective  of  the  framework.  Moreover,  rules  regarding  contracts  and 
switching  are  complementary  to  competition:  they  ensure  that  consumers  derive 
maximum benefits from a competitive market: from making the right purchase, to ease 
of switching to other providers when desired.  

Switching and number portability 

The  rules  regarding  switching  and  number  portability  are  aimed  at  enabling 
consumers to take advantage of a competitive market.  

Regarding  number  portability,  while  the  implementation  of  the  EU  rules  differs 
significantly  per  Member  State,  overall  the  amount  of  porting  transactions  has  been 
increasing through the evaluation period, in particular in relation to mobile numbers, and 
the  time  needed  to  port  numbers,  as  well  as  the  associated  charges,  have  been 
decreasing.  

When  it  comes  to  switching  more  generally,  the  Consumer  Market  Scoreboard  2016 
indicates  that  the  level  of  switching  providers  increased  significantly  during  the  past 
three years and is at an average of 15% of the total subsribers in mobile telephony, 13% 
in Internet provision and 10% for fixed telephony. These switching rates are above other 
subscription-based  industries  like  electricity  (10%)  and  gas  (9%).  Moreover,  when 
measured  at  bundle  level  –  considering  that  the  majority  of  Internet  access  and  fixed 
telephony  services  are  bought  as  part  of  a  bundle,  a  recent  survey  on  electronic 
communications148  reveals  that  the  majority  of  EU  households  have  changed  bundle 
provider at least once149 (57%, an increase of 12 percentage points compared to 2014).  
However,  customers  who  did  switch  provider  perceive  ease  of  switching  in  the  sector 
below  the  overall  average  for  services  in  the  EU.  The  data  point  to  a  discrepancy 
between ex ante expectations regarding switching mobile telephone provider and actual 
experience when switching provider. The market has the largest proportion of consumers 
among the surveyed markets who say they tried to switch provider but faced obstacles 
while attempting (7%). In particular, the Flash Eurobarometer 243150 (Consumers’ views 
on  switching  service  providers  from  November  2015)  indicates  that  from  those 
customers  who  wanted  to  switch  their  internet  service  provider  (42%  of  participants), 
15.1% found it easy, 7.2% switched but found it difficult, 2.4% tried and gave up, and 
3.6% did not even attempt to switch as they thought it might be too difficult. 

148  Eurobarometer  Special  438"E-communications  and  the  Digital  Single  Market",  fieldwork  October 
2015, published in May 2016 
149 By bundle, it is meant a service package including at least two communications services amongst fixed 
telephony, mobile telephony, Internet fixed and/or mobile, television channels.  
150 https://open-data.europa.eu/en/data/dataset/S730_243  

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As regards switching delays, in 2015, the average time mandated by regulations to port 
mobile numbers was 1,4 days while the actual time was 4,6 days. However, the delays 
are  much  higher  in  certain  Member  States.  The  average  regulated  time  to  port  fixed 
numbers  was  2,4  days,  but  this  was  not  reflected  in  the  actual  implementation  time  of 
10,1  days.  The  retail  cost  of  porting  is  also  different  across  Member  States,  with  no 
charges  in  many  Member  States,  and  high  charges  in  others  (cf.  eCommunications 
Report 2015).  

A  majority  of  respondents  to  the  public  consultation  consider  the  number  portability 
regime  as  working  well  and,  more  importantly,  as  being  an  effective  tool  to  lower 
switching  barriers  for  consumers  through  reduced  lock-in  effects  and  thus  as  being  a 
crucial  factor  for  consumer  satisfaction  and  competition.  However,  operators  criticised 
the diversity of approaches and of technical means put in place in the various Member 
States,  pointing  moreover  to  certain  practical  implementation  difficulties  which  affect 
consumers (e.g. loss of service during switching).  

Beyond  this,  to  further  improve  the  effectiveness  of  current  number  portability  and 
switching  provisions,  it  is  essential  to  keep  them  up  to  date  with  technological  and 
market developments. For instance, while the current porting rules only cover numbers, 
online content (for instance address books, chat history etc.) may also be relevant when 
switching services. Consumers consider it important to be able to keep phone numbers, 
emails  and  online  content  when  switching  providers  (Special  Eurobarometer  438, 
DATE): 89% say it would be important to keep their mobile number, 82% say this about 
their  fixed  line  number,  and  78%  about  their  emails  or  other  online  content  stored  by 
their provider.  

Transparency and contractual requirements 

As  regards  transparency  and  contractual  requirements,  the  Universal  Service  Directive 
provides for measures linked to transparency and publication of comparable information 
on  prices  and  services  by  providers.  As  of  2015,  most  NRAs  had  adopted  secondary 
rules to ensure transparency of information on services and prices by providers and some 
were operating online tools comparing prices and services. Some NRAs simply rely or 
accredit tariff calculators or online comparison tools available on the market. In addition, 
a  few  NRAs  have  implemented  measures  for  the  monitoring  of  expenditure  and  cost 
control by consumers. 

The  Universal  Service  Directive  also  provides  that  contracts  between  providers  and 
consumers  do  not  mandate  an  initial  commitment  period  exceeding  24  months,  while 
also ensuring that providers offer users the possibility to subscribe to a contract with a 
maximum duration of 12 months. These rules are correctly transposed (with one possible 
exception  in  Luxembourg),  with  some  Member  States  going  beyond  minimum 
harmonisation  (Denmark,  Belgium,  Netherlands)  in  imposing  shorter  commitment 
periods  or  in  foreseeing  the  possibility  for  consumers  to  terminate  the  contract  at  any 
time subject to certain conditions. Moreover, some Member States have adopted detailed 
rules regarding consumer protection safeguards in case of unilateral changes to contract 
conditions (like Austria, Cyprus, Czech Republic, Sweden, and United Kingdom)  – cf. 
eCommunications Report 2015.  

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Certain  problems  in  implementation  have  been  reported  in  some  Member  States  with 
contractual conditions limiting the right to terminate a contract or entailing deactivation 
costs (for instance in the case of subsidised equipment or tacit renewals).  Additionally, 
lengthy contract texts deter subscribers from reading the terms and conditions that they 
are signing. According to a recent Eurobarometer survey151, only 22% of the respondents 
read  the  terms  and  conditions  entirely,  while  40%  read  them  in  part.  Notwithstanding 
these  facts  it  appears  that  the  rules  on  contracts  and  on  price  and  service  transparency 
have had a positive impact on those consumers who read their contracts in their entirety 
or in part (i.e. 62% of the respondents). More than eight in ten consumers agree that the 
contract had sufficient and clear information about the duration and renewal or roll over 
conditions,  83%  of  the  respondents  agree  there  was  sufficient  and  clear  information 
about the quality of services subscribed to and 79% agree there was sufficient and clear 
information about the termination of the contract. However, it should be noted that large 
proportions of consumers do not read the contract terms even in part. 

As  regards  consumption  control,  the  majority  of  respondents  say  it  is  easy  to  monitor 
and  control  their  use  of  a  range  of  communication  services:  mobile  telephone  (78%), 
fixed  telephone  (71%),  mobile  Internet  (69%)  and  fixed  Internet  (67%).  These 
percentages have evolved rapidly the past few years.  

It seems therefore that the rules have been overall effective in supporting consumers to 
take  advantage  of  the  existing  competitive  situation,  although  the  results  differ  per 
Member State. 

This  view  is  supported  by  the  results  of  the  public  consultation,  where  however  the 
majority  of  respondents  are  operators.  While  the  overall  effectiveness  of  the  rules  is 
acknowledged, certain providers argue against too stringent rules, pointing for example 
to the need for long contracts in order to secure service (and thus investments) in areas 
lack  of  full 
interesting.  More 
which  are  commercially 
harmonisation is considered by several cross border operators and NRAs as problematic. 
Issues such as the cost of compliance, or cross border enforcement, are often mentioned 
in this respect. In contrast to this, consumer organizations think that horizontal consumer 
protection  rules  are  not  sufficient  to  address  the  specific  issues  that  arise  in  the  sector 
and  that  Member  States  and  National  Regulatory  Authorities  (NRAs)  should  keep  the 
possibility to address country specific issues.  

importantly, 

less 

the 

Moreover,  market  and  technological  developments  might  make  it  necessary  to  adjust 
rules  e.g.  on  clarity  of  information  in  bundled  offers.  Indeed,  services  are  increasingly 
being provided and purchased in bundled offers containing at least Internet access, voice 
and  TV,  occasionally  also  mobile  services.  The  purchase  of  bundled  communications 
services continues to increase – up from 38% in 2009 to 50% in 2015152. 

Regarding bundles, although 69% of respondents to Special Eurobarometer 438 agree it 
is easy to compare services and prices offered by their current bundle with other bundled 

151 Special Eurobarometer 438 
152 Special Eurobarometer 438 

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offers, there are still 24% of consumers who do not yet think it is easy to do so. It should 
be noted that there has been no improvement in this area since the previous survey.  

Quality of service 

Quality  of  service  has  become  almost  as  important  as  price  for  consumers  when 
subscribing  to  communications  services153.  With  regard  to  internet  access  service, 
consumers increasingly value certain attributes related to quality of service, such as the 
maximum download and upload speeds and the amount of data that can be downloaded 
or uploaded. 

Overall, despite the high adoption rate of internet fixed and mobile access service across 
the  EU,  evidence  shows  that  European  subscribers  get  about  75%  of  the  advertised 
download speed  and around a fourth of users experience difficulty in accessing content 
due to speed or capacity issues.  

An evaluation of the performance of over 40 consumer markets still indicates that most 
problems and complaints are found in the telecom sector154. Most end-users complaints 
on  transparency  and  quality  mostly  relate  to  bandwidth  restrictions  experienced  by 
customers who have subscribed to “unlimited” traffic plans, or to discrepancies between 
advertised and actual speeds, especially at peak hours155. In at least seventeen Member 
States  measurement  tools  for  the  quality  of  service  are  available  to  end-users  or  are 
being implemented, in addition to the monitoring activities of the NRAs.  

While  providers  of  traditional  communication  services  have  to  comply  with  contract 
obligations on e.g. minimum quality of service levels, it should be noted that pure OTTs 
are  not  subject  to  sector-specific  rights  and  obligations,  even  when  their  services  are 
used  by  the  end-users  to  cover  the  same  or  similar  communications  needs  as  the 
traditional electronic communications services.  

The  Universal  Service  Directive  provides  the  possibility  for  Member  States  to  adopt 
secondary rules aimed at ensuring a certain minimum quality of service and transparency 
in  this  respect.    Minimum  quality  of  service  standards  is  set  in  8  Member  States  and 
mostly for specific services (broadband speed, call centre services etc.) 

Rules  on  internet  access  have  been  amended  by  the  recently  adopted  Regulation  (EU) 
2015/2120  which  lays  down  measures  concerning  open  internet  access,  strengthens 
transparency  requirements  and  empowers  national  regulatory  authorities  inter  alia  to 
impose minimum quality of service requirements with regard to internet access service. 
The effectiveness of the amended rules which entered into force as of 30 April 2016 only 
is not part of this evaluation. 

Out-of-court dispute settlement 

153 Special Eurobarometer 438 
154 Consumer Markets Scoreboard 2016 
155 BEREC's ECODEM report, June 2015 

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Finally,  as  regards  out-of-court  dispute  settlement,  the  majority  of  national  regulatory 
authorities  stated  that  Article  34  USD  was  useful  in  enabling  end-users  to  resolve 
complaints  in  a  quick  and  easy  way  and  to  avoid  legal  battles.  However,  several 
problems were mentioned regarding its implementation: the high number of complaints 
versus  the  limited  dedicated  resources  available  to  solve  them,  the  awareness  raising 
regarding the existence of an alternative mechanism to resolve disputes with electronic 
communications  providers,  hesitation  with  respect  to  a  system  of  reimbursement 
/compensation etc.   

7.2.3.10. Effectiveness of provisions on universal service  

With the opening of the telecommunications market to competition there was a need to 
provide  safeguards  for  those  circumstances  where  competitive  market  forces  alone 
would not satisfactorily meet the needs of end-users.   

The  objective  of  the  universal  service  rules  under  the  EU  regulatory  framework 
[Universal Service Directive 2002/22/EC (USD)] is to make available a minimum set of 
electronic  communications  services  at  a  specified  quality  to  all  users  independently  of 
their  geographical  location  and,  in  the  light  of  specific  national  conditions,  at  an 
affordable  price,  while  minimising  competition  distortions.  The  three  characteristics  of 
the  current  universal  service  concept  include  availability  (i.e.  the  services  should  be 
made  available  to  all  users  in  a  territory,  regardless  of  their  geographical  location), 
affordability  (i.e.  the  services  should  be  made  available  at  an  affordable  price)  and 
accessibility (i.e. disabled users should enjoy services which meet their needs and are of 
an equivalent standard to those enjoyed by other users). In that sense, universal service 
provisions  are  aimed  at  ensuring  a  minimum  service  or  a  safety  net  for  those 
citizens/areas  which  will  not  be  catered  for  by  market  forces  alone  and  as  such  they 
should  be  assessed  against  the  third  objective  of  the  framework,  namely  to  ensure 
citizens' protection where needed.     

Currently the Directive includes four elements within the scope of the universal service:  
access  at  a  fixed  location  and  publicly  available  telephone  services  ("PATS"),  a 
comprehensive  directory,  a  directory  enquiry  service,  and  public  payphones.  However 
the provisions leave significant flexibility to Member States as to which services should 
be  included  or  excluded  from  the  scope  of  universal  service  obligations  as  well  as 
regarding  the  practical  implementation  mechanisms  (including  financing).  Further 
measures  can  be  adopted  by  Member  States  in  view  of  achieving  access  for  disabled 
users (discussed below) and affordability for low income users. 

Universal  service  obligations  have  been  imposed  wherever  national  governments 
established  that  there  was  a  risk  of  social  exclusion,  that  the  market  alone  was  not 
providing basic electronic communications services to all. As no EU level data exists on 
the  incremental  increase  of  coverage  or  services  use  due  to  the  universal  service 
obligation (i.e. those citizens that would have been excluded by market forces and have 
access  to  minimum  services  due  to  universal  service)  the  best  proxy  to  measure 
effectiveness  is  to  look  at  whether  and  how  Member  States  have  used  the  universal 
service provisions.  

The  results  of  the  public  consultation  show  that  the  majority  of  Member  States  and 
regulators agree that universal service has been effective in safeguarding end-users from 

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the risk of social exclusion while most of the operators see little or no impact, without 
having  provided  any  quantification.  Proponents  of  universal  service  argue  that  the 
availability of certain basic services increased and that services  became affordable and 
accessible  to  all.  Opponents  claim  that  (1)  the  universal  service  regime  has  become 
rapidly  out-of-date  (2)  the  high  level  of  competition  for  fixed  and  mobile  services 
ensures the affordability of tariffs and not the regulatory obligation. 

While the actual use of the mechanism by the Member States and of the services by the 
citizens  points  to  the  effectiveness  of  the  provisions,  the  actual  use  of  the  services  in 
practice  depicts  a  different  picture.  A  study  on  the  review  of  the  scope  of  universal 
service156  shows that (1) access to  a network at a fixed location and  publicly  available 
telephone services (PATS) are both widely used and available in general, irrespective of 
any universal service obligation; moreover citizens have increasingly moved to mobile 
telephony157  and  (to  a  lesser  extent)  to  voice  over  IP  in  order  to  use  PATS  equivalent 
services.  These are nearly universally available and affordable for most consumers; (2) 
directories and directory inquiry services are used regularly but their provision does not 
seem  linked  to  a  universal  service  obligation.  Availability  of  the  same  information 
through  the  internet  is  a  further  competitive  alternative158;  and  (3)  the  use  public 
payphones159 is in a steep decline. 

Therefore, while it can be concluded that the provisions have been effective in ensuring 
the  availability  of  PATS,  directories  and  payphones  (though  the relevance  of  the latter 
two  seems  diminishing  in  view  of  their  low  and  declining  use),  it  is  important  to  note 
that  the  availability  is  to  a  large  extent  ensured  by  the  market.  The  services  are 
considered  affordable  for  most  of  the  consumers160.  As  regards  PATS,  Member  States 
can  guarantee  access  for  users  with  special  needs  via  social  tariffs.  The  most  common 
criteria for social tariffs  are  those with  low incomes  (Austria, Croatia, Cyprus, France, 
Italy,  and  Slovenia)  and  people  with  disabilities  (Bulgaria,  Croatia,  Cyprus,  Denmark, 
France,  Italy  and  Slovenia).  A  monthly  social  tariff  varies  between    €5  and  €12  per 
month. 

For  data  communications  at  data  rates  that  are  sufficient  to  permit  functional  Internet 
access,  fixed  connections  are  nearly  universally  available  and  used  by  a  majority  of 
citizens  across  the  EU161  and  in  all  individual  Member  States.  However  there  are  still 
differences  between  Member  States  when  examining  availability  and  affordability  of 
fixed  broadband  across  urban  and rural averages.  Despite declining  hardware  costs  for 

156 Review of the Scope of Universal Service, SMART 2014/0011 
157 According to Digital Scoreboard 2015, mobile penetration exceeds 100 subscriptions per 100 citizens 
in all Member States. 
158 Tech4i2 et al. (2016) Review of the scope of universal service, SMART 2014/0011, pp. 38-42. 
159 A Eurobarometer survey in 2014 reported that 88 per cent of citizens across the EU reported that they 
had 'never used as public payphone'; comparison with earlier surveys showed that the number of non-users 
has increased year on year across the EU.  
160 As an indication of affordability, the  study on the review of the scope of Universal Service (SMART 
2014/0011)  concludes  that  2010  in  EU27  Member  States  the  cheapest  annual  telephone  subscription 
constituted 1.95% of disposal income. 
161  Digital  Scoreboard  (2015):    Fixed  broadband  access  to  the  network  (i.e.  incorporating  XDSL,  cable 
(basic and NGA), WIMAX and FTTP) is nearly universally (96,1 % across the EU). When expending the 
definition  to  also  include  satellite,  broadband  availability  is  ubiquitous.  Fixed  broadband  is  also  very 
widely used (70% of households across the EU, and above 50% in every Member State) 

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computers  and  tablets  and  decreasing  costs  for  broadband  subscriptions162  some  users 
are still not able to afford a broadband package. On average in EU28 Member States, in 
2015,  24%  of  households  without  an  internet  subscription,  believed  that  subscription 
costs are too high to subscribe.163 Furthermore, broadband take-up tends to be lower in 
Member  States  where  the  cost  of  broadband  access  accounts  for  a  higher  share  of 
income.164  The  risk  of  social  exclusion  when  affordable  broadband  internet  is  not 
available is increasingly real, considering the fundamental role of broadband internet in 
society  as  an  enabler  of  communication,  social  interaction,  participation  in  cultural 
events, and access to key services such as e-government, e-banking and health care.  

On  the  other  hand,  a  decreasing  use  of  some  of  the  provisions  and  of  some  of  the 
services  that  fall  within  the  Directive  as  illustrated  above  would  point  towards  the 
decreasing  relevance  of  some  of  them.  Indeed,  the  concept  of  universal  service  was 
shaped  in  the  early  stages  of  liberalisation  and  since  then  market  conditions  have 
drastically  evolved,  with  more  competition  and  choice  available  to  consumers. 
Technological changes have also changed the relevance of the elements under the scope 
of universal service obligations.  

As regards the use of the universal service mechanism by the Member States, in the last 
decade, there have been 31 withdrawals of a universal service obligation in relation to an 
entire  component  of  the  universal  service  in  a  Member  State,  meaning  that  those 
Member States now rely entirely on the market to supply these components. Eleven of 
the  31  components  concerned  the  comprehensive  directory  enquiry  service,  nine  were 
comprehensive directories, eight were public payphones and three were the provision of 
access to a network at a fixed location and PATS. Looking at trends over time, 26 of the 
withdrawals took place after December 2010. 

Today, only seven Member States have established a universal service obligation in their 
country  for  all  four  components  falling  within  the  scope  of  the  Directive  (Bulgaria, 
Croatia, Greece, Lithuania, Portugal, Slovenia and the UK).  The remaining 21 Member 
States rely on the market spontaneously meeting demand for one or more components.  

At this moment a universal service obligation in relation to the provision of access to a 
network  at  a  fixed  location  and  PATS  exists  in  22  Member  States;  the  number  is 
significantly lower for comprehensive directories (15 Member States), public payphones 
(13 Member States), and comprehensive directory enquiry services (10 Member States).  

The  Universal  Service  Directive  requires  that  the  connection  to  a  network  at  a  fixed 
location  should  enable  ‘data  communications  at  data  rates  that  are  sufficient  to  permit 
functional  internet  access,  taking  into  account  prevailing  technologies  used  by  the 
majority  of  subscribers  and  technological  feasibility’.  Fifteen  Member  States  have 
defined functional Internet access in terms of clear data rates (download and/or upload 
speeds);  of  which  six  met  or  exceeded  a  data  rate  of  1  Mbps  (1Mbps  in  Belgium, 
Croatia, Finland, Spain and Sweden; and 4Mbps in Malta).   

162 European Commission. 2014. Broadband Markets: Digital Agenda Scoreboard.  Page 26    
163 Tech4i2 et al. (2016) Review of the scope of universal service, SMART 2014/0011 
164 Europe's Digital Progress Report 2016 - Connectivity 

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As  regards  universal  service  obligations  concerning  accessibility  measures165  for 
disabled end-users, 23 Member States have specific requirements in place to respond to 
the  needs  of  disabled  users,  only  5  Member  States  have  not  (Estonia,  Latvia, 
Luxembourg,  Romania  and  Sweden).  In  11  Member  States  such  requirements  are 
implemented  through  the  universal  service  obligations.  It  is  worth  noting  that  in  four 
Member States all undertakings are obliged to provide special requirements to disabled 
end-users  and  that  in  the  UK  all  fixed  and  mobile  communications  providers  have  to 
access to a text relay service approved by the NRA166.  

With respect to the results of those measures on the ground, the access for persons with 
disabilities  remains  however  inadequate.  The  study  Assessing  and  Promoting  e-
Accessibility167  concluded  that  “the  revised  EU  Directives  seem  to  have  provided  a 
stimulus  for  [equal  access  and  choice  for  persons  with  disabilities]  in  a  number  of  the 
countries,  (…)  there  remains  much  room  for  improvement  of  telecoms  accessibility 
across  Europe  as  a  whole,  in  regard  both  to  equivalence  of  access  and  equivalence  of 
choice for users with disabilities”. One of the biggest problems in terms of efficiency is 
the great variation across Member States in terms of the measures put in place and the 
quality  of  those.  According  to  one  of  the  conclusions  of  the  study  mentioned  above  is 
that  “better  results  seem  generally  to  be  achieved  where  there  are  specific  obligations 
imposed  in  legislation and/or by the regulators”. According to  the draft  BEREC report 
“Update of the report on equivalent access and choice for disabled end-users”168, only 14 
out of 28 National Regulatory Authorities (NRAs) limit the actions concerning persons 
with  disabilities  to  Universal  Service  Obligations,  while  13  answered  that  additional 
measures169 were adopted for other services and service providers. Relevant stakeholders 
suggest  for  instance  that  there  are  some  measures  that  could  be  addressed  by  the  EU 
legal  framework  in  order  to  live  up  to  the  expectations  and  rights  of  persons  with 
disabilities.170 Consequently, in December 2015 the Commission adopted a Proposal for 
a Directive on the approximation of the laws, regulations and administrative provisions 
of  the  Member  States  as  regards  the  accessibility  requirements  for  products  and 
services171. 

It 

165 BEREC Questionnaire on implementation of universal service obligations (2014) 
166  However,  there  is  no  equivalent  access  available  in  Member  States,  in  particular  for  emergency 
services. For a description of divergent solutions implemented across the Member States, please see the 
Impact Assessment accompanying Commission's proposal on the European Accessibility Act (http://eur-
lex.europa.eu/legal-content/EN/TXT/?uri=SWD:2015:0264:FIN).  
167  The  study  is  known  as  MeAC  3  (http://ec.europa.eu/digital-agenda/en/news/study-assessing-and-
promoting-e-accessibility.) It was funded by the European Commission and published in November 2013. 
168 
2015 
by 
(http://berec.europa.eu/eng/document_register/subject_matter/berec/download/0/5418-update-of-the-
report-on-equivalent-acces_0.pdf) 
169  The  most  common  actions  address  directory  enquiry  services  and  directories,  equipment,  public  pay 
telephones, information, special tariffs, accessible billing, emergency services and relay services. 
170 Based on the response of the European Disability Forum to the public consultation on the regulatory 
framework. 
171  Proposal  for  a  Directive  of  the  European  Parliament  and  of  the  Council on  the  approximation  of  the 
laws,  regulations  and  administrative  provisions  of  the  Member  States  as  regards  the  accessibility 
requirements for products and services COM(2015) 615 final, 2.12.2015 

published 

BEREC 

October 

was 

in 

86 

 
 
                                                 
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7.2.3.11. Effectiveness of provisions on 112, 116  

The European emergency number 112 

The Universal Service Directive provides that access to emergency services through the 
European emergency number 112 must be ensured all over the EU. As regards access to 
112, evidence collected throughout the work of the Communications Committee suggest 
generally effective implementation.  

In  addition  to  access,  the  framework  also  entails  requirements  as  regards  awareness-
raising, caller location and accessibility. 

In this regards, while awareness of the 112 number has increased slowly but constantly, 
there  is  still  room  for  improvement.  According  to  a  recent  Eurobarometer  survey 
(Special 438, dated November 2015), 61% of the respondents would call 112 if they had 
an emergency in their country, while 46% correctly identified 112 as the single number 
to call throughout the EU.  

Difficulties  in  implementation  have  been  reported  in  relation  to  the  lack  of 
implementation  of  caller  location  accuracy  and  reliability  requirements  by  Member 
States.  The  caller  location  accuracy  criteria  adopted  by  Member  States  are  below  the 
accuracy  of  the  currently  available  technical  solutions,  leading  to  a  situation  where  in 
spite  of  technical  developments  in  this  area,  the  effectiveness  of  the  call  remained  the 
same in the past 10 years. The extent of this issue has however not been measured. Since 
the  Directive  entrusts  the  imposition  of  the  caller  location  and  accuracy  criteria 
exclusively  to  Member  States,  enforcing  more  effective  criteria  under  the  current 
framework has not been possible.  

Implementation of the obligations on equivalent access of disabled people to emergency 
services has also been less effective172. In terms of accessibility, equivalence of access is 
ensured  with  SMS  communication.  However,  more  evolved  video  and  messaging 
systems (Web Real Time Communication) are currently available to ensure higher level 
of equivalence of access to emergency services. 

In  the  public  consultation,  the  telecom  industry  highlights  the  importance  of  reliable 
access  to  emergency  services  that,  in  view  of  the  technical  standards  and  legal 
arrangements  in  place  today,  can  be provided today  only  through  ECS.  However,  they 
argue that access to 112 obligations should be imposed on OTTs as well, if technically 
feasible.  A  large  number  of  stakeholders  consider  that,  athough  it  would  not  be 
technically feasible to subject all OTT services to the obligation of providing access to 
emergency  services,  all  the  voice  services  perceived  by  the  users  as  substitutive  to  the 
current  PSTN  voice  service  and  which  also  give  access  to  E.164  numbers  (like  Skype 
out,  Viber  out)  should  be  subject  to  the  same  obligations  regarding  the  access  to 
emergency  services. This suggests that the  current 112 provisions  need to  be  fitted for 
Internet-based voice communications services that give access to numbers. 

The services of social value 116  

172 COCOM 112 implementation report https://ec.europa.eu/digital-agenda/en/eu-actions-112  

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The  main  provisions  governing  116  numbers  are  enshrined  in  the  116  Decision 
(2007/116/EC)173. The 116 Decision laid down the rules on the scope and reservation of 
116  numbers  and  their  assignment  to  operators.  An  Annex  to  the  Decision  lists  the 
numbers  themselves.  This  annex  was  then  replaced  by  two  successive  2009  decisions.  
These decisions were based on telecom rules on the harmonisation of numbers to promote 
pan-European services (Article 10(4) of the Framework Directive).  

In  addition,  Article  27(a)  of  the  Universal  Service  Directive  requires  the  EU  Member 
States  to  promote  the  specific  116  numbers,  ensure  that  disabled  end-users  are  able  to 
access the 116 numbers; ensure that citizens are adequately informed of 116 services, in 
particular targeting persons travelling in the EU and finally guarantee that citizens have 
access to a missing children hotline under the number 116000. 
The  Commission  regularly  publishes  on  its  dedicated  116  Website174  a  report  on  the 
implementation of the 116 numbers. Currently some of the numbers are not taken up at 
all, while the total numbering range (consisting of five numbers) is used at about 50%. In 
June 2016, the last remaining Member State, Finland finally implemented 116000. Thus 
following bilateral exchanges with some Member States175, a flagship promotion project 
coordinated by the Commission and funding provided directly by the Commsision176, the 
missing  children  hotline  is  now  operational  in  all  Member  States  throughout  the  EU. 
Nevertheless, despite these efforts, the Eurobarometer studies carried out in 2011177 and 
2012178 revealed very low awareness, among citizens, despite the manifest interest about 
the services provided under the 116 number. These results suggest that the  provision in 
Article  27a  has  not  been  very  effective,  which  in  turn  either  requires  reinforcing  the 
provision or alternatively raises the question for the need to maintain it. 

7.2.3.12. Effectiveness of provisions on security and integrity of networks and services  

The provisions on security and integrity of networks and services aim mainly at ensuring 
the continuity of supply of services provided over electronic communications networks 
and require operators to notify the competent national regulatory authority of breaches of 
security  or  loss  of  integrity  that  have  had  a  significant  impact  on  the  operation  of 
networks or services. 

Before the introduction of rules on network and service security (covered in Art.13a and 
13b of the Framework Directive) in 2009, the situation across Member States was highly 
divergent:  some  Member  States  had  no  relevant  rules  while  others  had  advanced 
measures  in  place.  In  that  sense,  the  overall  situation  in  the  EU  has  improved 
significantly  as  currently  rules  are  implemented  in  all  Member  States,  leading  to  a 
generally higher level of protection for European end-users. 

173  Commission  Decision  2007/116/EC  of  15  February  2007  on  reserving  the  national  numbering  range 
beginning with 116 for harmonised numbers for harmonised services of social value, OJ L 49, 17.2.2007 
174 https://ec.europa.eu/digital-single-market/en/116-your-country  
175 http://europa.eu/rapid/press-release_MEMO-11-337_en.htm  
176 http://europa.eu/rapid/press-release_MEMO-13-453_en.htm  
177 For Special Eurobarometer 367 on Harmonised numbers for services of social value  -116 please see: 
http://ec.europa.eu/public_opinion/archives/eb_special_379_360_en.htm#367  
178 For Special Eurobarometer 387 on harmonised numbers for services of social value – 116, please see: 
http://ec.europa.eu/public_opinion/archives/ebs/ebs_387_en.pdf  

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Indeed, an Impact evaluation on the implementation of Article 13a led by ENISA179 (the 
European Union Agency For Network And Information Security) and published in 2015 
shows  that  the  rules  brought  a  certain  amount  of  uniformity  in  the  approach  taken 
regarding  security  of  telecommunication  services,  but  more  importantly  contributed  to 
strengthening  the  European  telecom  infrastructure’s  resilience  and  services  availability 
across  the  EU.  According  to  the  consulted  parties  Article  13a  definitely  helped  reduce 
the  risk  related  to  infrastructure  resilience  through  reporting  and  learning,  the  main 
benefits  being  noted  in  the  areas  of  incident  management,  operation  management, 
security of systems and facilities, business continuity management, and governance and 
risk  management180.  A  similar  result emerged  as  well  from  another survey  of  opinions 
among ENISA and national regulatory authorities. 

While quantitative data about the incidents reported may be interpreted in different ways 
(an increase in the number of incidents reported may be read as either a sign of greater 
responsiveness from operators or as a sign of lesser security), some qualitative elements 
appear  to  support the respondents'  opinions.  First,  ENISA's  State  of  Play  document  on 
the  implementation  of  Article  13a181  shows  that  virtually  all  Member  States  have 
transposed Article  13a into  national  legislation  and in  several  cases  developed specific 
guidance on security measures where none existed before. Second, within the framework 
of  Article  13a,  national  competent  authorities  met  on  a  regular  basis  in  the  Art.  13a 
Expert  Group,  an  information  exchange  group  especially  created  in  this  context  by 
ENISA.  During  these  meetings,  NRAs  shared  their  point  of  view,  experiences  and 
thoughts about Art. 13a requirements. According to ENISA, this group had a critical role 
in federating NRAs during and after the implementation process. Third, ENISA issued, 
in cooperation with NRAs, a number of guidelines on the application of Article 13a (e.g. 
on security incident reporting, on security measures, on threats and assets), which greatly 
contributed  to  a  consistent  implementation  of  Article  13a  requirements.  While  these 
documents  are  not  binding  they  constitute  an  authoritative  reference  for  NRAs  and 
operators in implementing and applying Article 13a in practice. 

The above cited ENISA report showed that over 80% of the surveyed NRAs declare that 
they are satisfied with the level of harmonization within the EU.182 However, significant 
differences in approaches of Member States have persisted even after the 2009 reform. 
More  than  a  fifth  of  the  respondents  in  the  public  consultation  (mainly  telecoms 
operators  and  equipment  vendors)  put  forward  that  the  rules  have  not  brought  about 
sufficient  harmonisation  across  Member  States.  For  example,  although  all  Member 
States  have  implemented  mandatory  incident  reporting  for  service  disruptions  on 
electronic communications providers, such reporting does not necessarily cover the same 
types  of  networks  and  services,  implying  that  the  incidents  reported  might  differ 
according to the type of network or services concerned and cannot possibly be the same 
throughout all Member States.  

Moreover, just over half of the respondents to the public consultation consider that the 
objectives  of  the  rules  have  been  achieved,  and  can  be  credited  to  the  provisions.  The 

https://www.enisa.europa.eu/activities/Resilience-and-CIIP/Incidents-reporting/studies/impact-

179 
evaluation-article13a 
180https://www.enisa.europa.eu/activities/Resilience-and-CIIP/Incidents-reporting/studies/impact-
evaluation-article13a, p. 18. 
181 https://resilience.enisa.europa.eu/article-13/state-of-play/Art13aStateofPlay2015FinalDraftv_2.pdf   
182 Ibidem, at p. 37. 

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lack  of  effectiveness  of  the  provisions  would  mainly  relate  to  the  addressees  of  the 
security  obligations,  which  currently  cover  only  electronic  communications  providers. 
Other parties in the value chain such as equipment manufacturers, which have a key role 
in  the  resilience  of  the  infrastructures,  are  not  covered  by  the  provisions.  More  than  a 
third  of  the  respondents  (including  many  of  those  who  consider  the  rules  as  efficient) 
underlined  the  need  to  involve  the  complete  Internet  value  chain  (including  OTT 
services,  software  and  hardware)  in  order  to  better  achieve  the  objectives  of  the 
measures. It therefore seems that  end-user interest  may require applying those security 
obligations  to  all  types  of  communications  services  regardless  whether  supplied  by 
traditional providers or not.  

Furthermore, in accordance with the ENISA survey document, more than a third of the 
NRAs  have  reported  difficulties  with  monitoring  and  enforcing  the  rules,  once 
transposed,  also  mentioning  in  some  cases  limited  cooperation  from  operators. 
Moreover, reinforcing cross-border collaboration in the field appears to be necessary too, 
according to the impact evaluation results. However, it is difficult to say to what extent 
these difficulties have had an impact on the security of networks and in ultimately on the 
quality and continuity of the services provided. Providers deal with some external risks 
that  cannot  be  controlled  nor  prevented  by  an  increase  of  the  security  measures.  Such 
risks  mainly  include  environmental  risks  and  malicious  actions.  As  such  it  becomes 
difficult to measure direct benefits attributed to Art. 13a183. 

7.2.3.13. Effectiveness of provisions on must carry & findability 

Must carry and findability rules aim at ensuring that channels of high public interest are 
broadcasted and receive sufficient prominence by electronic communications providers, 
while avoiding unreasonable burden on the latter.  

Most Member States have adopted “must carry” regulations in their national legislation. 
In most cases, public service broadcasters and/or local/regional broadcasters are included 
under “must carry” rules. In a number of countries, additional requirements are also set 
so  that  all  terrestrial  free-to-air  channels,  including    private  non-public  service 
broadcasting184 channels are also covered.  

At  Member  States  level,  there  is  considerable  variation185  in  the  regulation  of 
arrangements  between  broadcasters  and  network  operators  in  terms  of  who  covers  the 
costs of transmission of content. In many cases, zero payment (i.e. neither broadcasters, 
nor  platforms  receive  payments)  agreements  have  been  reached  between  the  involved 
parties,  although  significant  variation  exists.  Although  in  some  Member  States  (e.g. 
Ireland,  Hungary),  the  number  of  channels  covered  by  “must  carry”  rules  continues  to 
grow,  elsewhere  the  trends  are  reversed.  In  most  MS  “must  carry”’  refers  to  linear 
services.  

A  number  of  Member  States  have  regulations  on  presentational  aspects  of  electronic 
programme guides (EPGs). Typically, EPG regulation establishes general principles on 

183 Ibidem, at p. 16. 
184 This can include even shopping TV channels, see ECJ Case C-336/07 
185 As provided for in Art 31(2) of the Universal Service Directive 2002/22/EU 

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fairness  and  non-discrimination.  These  provide  a  backstop  against  low  prominence  of 
public  service  broadcasters,  rather  than  to  stipulate  their  specific  position  on  the  EPG. 
With  the  exception  of  Greece186,  Commission  services  are  not  aware  of  cases  where 
Member States have imposed obligations on operators to provide access to EPGs under 
Article  5.1.b  of  the  Access  Directive.  While  it  is  difficult  to  measure  directly  the 
effectiveness  of  regulation  against  the  general  interest  objectives  of  media  pluralism, 
freedom of speech and cultural diversity both from a methodological point of view and 
in quantitative terms there are indirect indications as to the effectiveness of the measures 
in place.  

Despite the wide use Member States have made of their competences187, there have been 
no major complaints from stakeholders brought to the attention of Commission services 
since  the  last  amendment  of  the  relevant  EU  legislation  in  2009.  Also  in  the  public 
consultation  only  a  few  cable  and  telephony  network  operators  call  for  a  complete 
removal of "must-carry" rules. 

The effectiveness of the rules has nevertheless evolved as viewers increasingly use OTT 
services on smart TVs and smartphones/tablets and traditional TV channels represent a 
declining (while still dominant) share of audio-visual consumption patterns. At the same 
time,  the  mission  of  public  service  broadcasters  increasingly  extends  into  the  online 
world  and includes  non-linear  audio-visual  services.  It  can  be  noted  that  OTT  services 
are not covered by 'must-carry' obligations. 

While  there  is  a  majority  view  that  transmission  obligations  imposed  on  electronic 
network operators ('must-carry' rules) and rules related to electronic programme  guides 
should be adapted to new market and technological realities, there is sharp disagreement 
how  such  adaptation  should  be  conceived.  Extension  of  current  rules  is  supported  by 
most broadcasters whereas most telecom operators are in favour of reducing the scope of 
the rules. 

7.3. Efficiency  

Do  the  provisions  of  the  framework  allow  for  an  efficient  implementation  by  Member 
States? Do they create overly burdensome obligations for the main stakeholders of the 
framework? How do the results compare with the costs?  

7.3.1. General remarks 

This  section  examines  if  the  costs  involved  in  implementation  of  the  regulatory 
framework  are  reasonable  and  in  proportion  to  the  results  (benefits)  achieved.  The 
evaluation  of  costs  included  examining  evidence  of  any  unnecessary  administrative 
burden placed on businesses and citizens. The evaluation of benefits not only considered 
evidence  about  achieving  the  objectives  of  the  framework  but  also  the  higher  level 

186  The  Greek  NRA  has  imposed  only  very  generic  conditions  requiring  fair,  reasonable  and  non-
discriminatory terms. 
187  See  study  "Access  to  TV  platforms:  must-carry  rules,  and  access  to  free-DTT"  by  the  European 
at 
December 
Audiovisual 
http://www.obs.coe.int/documents/205595/264629/Must+Carry+Report+(Dec.+2015)/bb229779-3fb2-
488d-9c0e-d91e7d94b24d , pp. 23 and individual country reports pp. 53 

Observatory, 

available 

2015, 

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impacts  –  the  benefits  for  people  and  the  economy.  As  explained  in  Section  5,  the 
evaluation faced some inherent limitations with regards to the quantification of costs and 
benefits at EU level.  

As a preliminary remark, it should be noted upfront that analysing the efficiency of EU 
legislation  implies  assessing  to  what  extent  the  resources  consumed  compare  to  the 
positive changes induced by it. Assessing costs and benefits with precision at EU level 
can be difficult since obtaining robust, good quality data to use in the evaluation of costs 
and  benefits  is  a  challenge,  particularly  across  28  Member  States  which  may  have 
implemented  legislation  in  a  variety  of  different  manners  and  themselves  either  apply 
limited costs/benefit data collection or do so in different ways.  

The  regulatory  framework  for  electronic  communications  is  no  exception.  The 
regulatory framework is to a large extent consisting of minimum harmonization. It relies 
on  the  use  of  an  ample  and  flexible  toolbox  that  NRAs  will  apply  to  specific 
circumstances. While procedures aimed at ensuring consistent outcomes exist for certain 
policy  areas,  they  each  have  different  degrees  of  complexity  and  possible  impact. 
Generally speaking, the result is that the actual administrative costs are dependent on the 
solutions adopted in each Member States. In principle, this flexibility may allow for cost 
optimization  for  national  administrations  (but  also  for  adding  up  requirements  and 
thereby  costs).  On  the  other  hand,  it  makes  a  precise  quantification  of  the  burden 
induced by the EU regulatory framework particularly challenging.  

While  actual  cost  calculations  are  missing,  it  remains  useful  to  briefly  map  the  main 
types of costs, burdens and benefits that the regulatory framework creates, which have 
been considered in the assessment below.    

Direct costs for operators include administrative charges, calculated by NRAs within the 
limits  established  by  the  framework,  and  compliance  costs.  Compliance  costs  in  turn 
include the costs of managing regulatory proceedings e.g. responding to market analyses 
questionnaires,  reacting  to  draft  analyses,  submitting  tariff  calculations,  making 
reference  offers,  participating  in  spectrum  auctions,  putting  in  place  and  managing  IT 
systems and administrative procedures in relation to data protection, number portability, 
reporting  security  incidents,  etc.  They  also  include  costs  such  as  the  development  and 
management  of  regulated  products  on  wholesale  and  retail  level  (administration  of 
contracts  and  billing,  change  in  processes),  regulatory  accounting  and  regulatory 
reporting,  compliance  monitoring  of  regulatory  obligations  etc.  It  should  however  be 
noted that, for incumbent operators - some of these latter costs coincide with transaction 
costs,  i.e.  both  the  incumbent  and  some  (well  established)  alternative  operators  earn 
profits from offering access to their networks.    

It is also important to note that some of the compliance costs are borne by virtually all 
operators  (e.g.  number  portability,  roaming,  consumer  protection)  others  apply  only  to 
specific  operators  such  as  incumbents  and  universal  service  providers.  Incumbent 
operators refer moreover to hassle costs, such as the loss of agility and the impossibility 
to  make  swift  strategy  changes  due  to  regulation  and  to  the  impact  of  regulation  (e.g. 
through the regulation of wholesale prices) on revenues and thus investment capacity.  

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To  illustrate  the  difficulty  of  calculating  the  administrative  burden,  the  following 
paragraph presents the inputs given by operators during the review public consultation as 
regards  the  direct  costs  of  applying  the  regulatory  framework.  Absent  a  common 
methodology, the differences in figures are striking and therefore the results unreliable. 
At  the  lower  end  of  the  range,  small  alternative  players  estimate  it  at  2 000 euros  per 
year, while medium-size operators at a few hundred thousand euros. Large international 
operators evoke few million euros covering regulatory staff and compliance costs, cost 
control  system,  separate  wholesale  access  system,  mandatory  fees,  quasi  compulsory 
external  expenditure,  etc.188  At  the  higher  extreme,  one  cross-border  operator  quotes 
51,2M  €  as  compliance  costs,  while  a  large  mobile  operator  quantifies  the  "regulatory 
impact" at -318M € on EBIDTA and at -916M € on revenues.  

While it may seem at times that alternative operators are on the winning side of the cost-
benefit ratio, as incumbent operators bear most of the costs, it is important to recall that 
incumbents  are  also  the  ones  which  benefit  most  from  having  a  stable  regulatory 
framework  across  the  EU,  as  incumbents  from  one  Member  State  often  become 
alternative providers in other Member States. Conversely, many operators, in particular 
incumbents,  indicated  during  the  public  consultation  that  the  flexibility  granted  to 
Member States by the regulatory framework for electronic communications affects legal 
certainty/predictability of the regulatory outcomes, thus leading to high compliance costs 
and to a certain extent also deterring investments.   

The costs for national administrations include the costs of monitoring and enforcing the 
provisions,  translating  in  personnel  costs,  and  in  the  case  of  specific  obligations,  costs 
for  IT  systems  –  while  the  latter  is  not  required  by  the  framework  itself  (e.g.  costs  of 
databases  for  number  portability,  tools  for  quality  of  service,  systems  for  monitoring 
network and service security). It should also be recalled that the tasks which NRAs are 
attributed under the framework are financed to a large extent by the industry rather than 
by public budgets, via administrative charges, and that while operators suggest various 
distribution  keys  for  administrative  charges,  they  are  in  general  supportive  of  a  well-
functioning regulator.        

These costs are to be compared with benefits associated with the framework.  

First, it should also be noted that the framework, while seeking to maximise consumer 
benefits,  generally  protects  operators  from  over-regulation  (see  discussion  per  area 
below  e.g.  dominance  of  SMP-based  regulation,  administrative  charges,  must  carry 
rules).  Then,  an  important  category  of  alternative  providers  depends  on  regulation  to 
participate to the market (e.g. regulated access to networks).  

As  far  as  end-user  benefits  are  concerned  (which  comprise  a  very  large  part  of  the 
society), the previous section underlined the advances in competition, single market and 
end-user  protection,  assumed  to  be  to  a  large  extent  due  to  the  framework.  During  the 
same period the sector, as regulated under the framework, generated important end-user 

188  Ecotel  communications,  OSC,  etc.  refer  to  2 000  euro;  Stokab  to  300.000  euro,  Eurofiber  between 
200.000 and 300.000 euro; Portugal Telecom between 2 and 8 million euro, TDC to 4 million euro, Colt to 
4 million euro, Vodafone to 6 million euro. 

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benefits – an important growth in fixed and mobile broadband coverage and take-up189 
and a significant drop in prices, to name just a few.   

About a third of the respondents to the public consultation and in particular alternative 
operators  and  consumer  organisations  underline  that  consumer  choice  and  more 
affordable  offers  and  other  clear  consumer  benefits  would  not  exist  without  the 
regulatory framework and that regulation, while at times burdensome, is necessary and 
proportionate.  

Besides market efficiency and  end-user benefits, the framework is considered to create 
important societal benefits, given the growing importance of ICT for the entire society 
and  economy  (e.g.  productivity  gains,  reduced  social  divide,  increased  well-being 
through e-government, e-health, e-learning, etc.). 

The section below assesses the efficiency of each regulation area.    

7.3.2. Efficiency of regulatory areas 

7.3.2.1. Efficiency of access regulation area 

The market analysis process (completed by the procedures aimed at ensuring consistency 
on  the  internal  market)  is  generally  praised  by  NRAs  and  by  alternative  operators  as 
producing  results  which  are  generally  "fit  for  purpose".    In  particular,  while  not 
providing  many  concrete  examples,  all  alternative  operators  responding  to  public 
consultation  stated  that  the  current  system  works  well  and  provides  appropriate 
regulatory tools.  However, the incumbent operators have criticised the system, via the 
public  consultation,  for  being  complex,  lacking  predictability  (and  hence  discouraging 
investment),  or  even  being  too  intrusive,  as  well  as  by some  alternative  operators  who 
highlighted  high  administrative  costs,  without  however  quantifying  them.  This  makes 
the access regulation area one of the most "popular candidates", among respondents to 
the  public  consultation,  for  simplification,  reduction  of  administrative  burden  and 
associated costs.  At the same time,  as  has  been  discussed in section 4.2.2.1 above,  the 
consistency of  market  access  regulation,  in  particular  with  regards  to  remedies,  can  be 
enhanced by an improved governance structure. 

As regards complexity, respondents unanimously agree that certain mature markets, such 
as  the  fixed  and  mobile  voice  call  termination  markets,  do  not  require  the  current 
complex  and  lengthy  market  analysis  process,  which  can  often  lead  moreover  to 
divergent  results  as  to  the  level  of  rates  across  EU.  Instead  they  propose  a  simple 
European  instrument  (Regulation  or  Decision)  setting  uniform  rates  for  voice 
termination. The evaluation of the access regulation area shows that there might be some 
room  for  simplification  in  this  respect,  more  precisely,  that  the  costs  of  regulation  for 

189 Fixed broadband coverage went up from 86.9% in 2005 to 97% in 2015. Fixed broadband take-up went 
from 24.9% in 2005 to 72% in 2015. NGA coverage started at the same time as elsewhere in the world and 
delivered  coverage  similar  to  that  of  digital  world  leaders.  Mobile  broadband  coverage  evolved  from 
74.4% in 2005 to 97.6% in 2015. Mobile broadband take-up went up from 13% in 2008 to 75.3% in 2015. 
Finally,  and  importantly,  prices  dropped  considerably  during  the  evaluated  period:  while  the  usage 
increased significantly, the share of telecom expenditure as percentage in the household expenditure went 
from 2.9% to 2.5%.     

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very  stable  markets  could  be  reduced  without  endangering  the  associated  benefits. 
However, as indicated by Member States, NRAs and most alternative operators, in many 
cases a certain level of complexity of market analysis procedures is necessary in order to 
obtain  solutions  which  are  effective,  proportionate  and  appropriate  to  the  problems 
identified.  

A certain level of unpredictability is surely inherent to the system, in the form of some 
NRA  discretion,  in  exercising  economic  judgments  (market  definition,  market  power) 
and  in  adjusting  remedies  to  ensure  that  they  are  proportionate  to  the  market 
circumstances. Such flexibility may jeopardise EU consistency hence the need for NRAs 
to  exercise  their  discretion  with  care  and  the  need  for  an  EU-level  consistency 
mechanism as a counterweight. Moreover, a certain level of uncertainty may be due to 
the periodicity of the market reviews. Indeed it is important to conduct a market analysis 
on a regular basis and within a reasonable and appropriate time-frame, so as to avoid any 
over-  or  under  regulation  not  appropriate  to  any  changed  competitive  conditions. 
However, compliance of NRAs with their obligation to review relevant markets in three-
year intervals remains an issue in a large number of Member States, and while this has 
been closely followed up by the Commission with appropriate enforcement action where 
needed,  it  gives  rise  to  reflection  about  the  resource  intensity  of  the  current  cycle.  In 
March 2016 delays in market reviews were registered in 13 Member States, with nine of 
those considered to be severe delays. In that sense, when defining the appropriate level 
of  complexity  in  access  regulation,  careful  analysis  must  be  made,  taking  into  account 
the  possible  trade-off  between  efficiency  (in  the  form  of  a  stable  and  cost-effective 
regulatory  regime)  and  effectiveness  (an  access  regime  which  is  fit  for  purpose).  It 
appears  therefore  that  there  could  be  some  room  for  simplification  by  way  of  simply 
prolonging the intervals at which market reviews should be conducted by NRAs.  

Minimising the burden of regulation also implies that regulation is not put in place, or 
maintained,  should  it  not  be  strictly  necessary.  As  regards  intrusiveness,  incumbent 
operators  consider,  as  argued  in  the  public  consultation,  that  the  full  set  of  access 
remedies is often imposed by NRAs mechanically, without cost/benefit assessment and 
without  adjustments  according  to  actual  problems  identified.  They  even  claim  that  for 
some  of  the  actual  access  products  imposed  there  is  actually  no  market  demand. 
Incumbents  are  thus  advocating  a  strong  de-regulatory  push  in  the  name  of  changed 
market  dynamics  and  the  risks  involved  in  future  investment  plans  (e.g.  one  access 
product  if  at  all  necessary).  Alternative  operators  argue,  on  the  contrary,  that  a  wider 
variety of access  products is  needed to  preserve the competition gains achieved so far. 
While  the  arguments  of  the  incumbents  and  alternative  operators  are  understandably 
opposing, the proportionality of the imposed remedies is in practice always assessed by 
the NRAs, as well as it is scrutinised by the Commission in the process of consultations 
(so called Article 7 mechanism), and ultimately by the courts.  

Finally, consistent access regulation on the single market is also an element with impact 
on  the  operational  costs  (compliance  and  monitoring  of  regulatory  obligations, 
management of regulatory proceedings, etc.) for providers active across several Member 
States.  Larger  (especially  alternative)  operators  underline  the  value  of  having  a  stable, 
predictable regulatory regime covering 28 Member States.  

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It  should  be  concluded,  following  the  European  Parliament's  Study  ‘How  to  Build  a 
Ubiquitous Digital EU Society'190, that while detailed requirements involved in analysing 
markets  and  applying  remedies  on  the  basis  of  SMP  are  comparatively  complex  and 
time-consuming  for  NRAs  compared  with  more  "mechanical"  approaches  (e.g. 
symmetric  access  regulation  imposed  on  all  operators),  these  complexities  to  a  large 
degree result from the need to tailor regulatory intervention to specific national or sub-
national  markets  and  to  avoid  inappropriate  regulation.  Relatively  high  administrative 
burden  may  therefore  to  a  significant  degree  be  a  result  of  the  design  of  the  access 
regime, which is concluded to be largely fit for purpose. 

7.3.2.2. Efficiency of the spectrum regulation area 

As regards efficiency in respect of bringing spectrum to market, the costs that operators 
face  when  seeking  to  obtain  authorisation  to  use  spectrum  resources  can  be  traced  to 
three major components under the framework. The first and most evident cost element 
governing access to spectrum consists of the auction commitments or fees directly linked 
to  the  right  of  using  the  spectrum  resource.  The  framework  requires  fees  to  be 
transparent,  objectively  justified,  non-discriminatory  and  proportionate  relative  to  their 
intended  purpose,  while  taking  account  of  the  general  framework  objectives,  and  to 
ensure optimal use of the spectrum. While the imposition of fees is facultative in nature, 
they  are  generally  applied  in  the  spectrum  domain.  The  need  to  guarantee  optimal  use 
together with the lack of framework-inherent valuation criteria or methods has given rise 
to substantial variation in the fees imposed. While such variations can be due to several 
factors,  not  always  explained  by  different  national  circumstances,  they  do  not  prove 
helpful for efficiently achieving the framework objectives of promoting competition and 
developing  the  single  market.  Since  the  fee  types  are  not  harmonised  either,  some 
jurisdictions  apply  several  fees  in  relation  to  the  same  spectrum  usage  rights  and/or 
based on different criteria.   

Second,  as  regards  the  institutional  framework,  technical  harmonisation  at  EU  level 
appears overall to work fairly efficiently. Some may consider the whole process to gain 
access  to  harmonised  spectrum  through  CEPT  and  the  Radio  Spectrum  Committee  as 
overly  long  (for  instance  the  time  between  the  moment  a  prospective  user  first 
approaches  its  national  authority  about  the  need  to  harmonise  spectrum  until  the 
spectrum  is  effectively  harmonised  and  allowed  for  use,  can  range  from  80  to  134 
months  depending  upon  the  level  of  authorisation  required),  and  more  dedicated 
technical resources may help to accelerate the earlier stages of the process. On the other 
hand,  once  a  final  report  on  harmonisation  candidate  bands  has  been  received,  a 
technical harmonisation decision is usually adopted in a period of less than a year. Most 
process-related staffing costs are covered from administrations' budgets, which may limit 
effective participation by smaller administrations. There appears to be significantly less 
efficiency  in  respect  of  ensuring  timely  and  consistent  assignment  of  harmonised 
spectrum  resources,  which  at  the  framework  level,  however,  is  explained  by  the  low 
degree of operational and process harmonisation. The fact that goal attainment notably in 
respect  of  the  promotion  of  the  Internal  Market  appears  sub-optimal  in  terms  of  when 
services become available to the end-users at this point may prompt further reflection on 
what mechanisms might best resolve these deficits.  

190  SMART 2014/0023 

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Finally, as regards the use of less invasive regulatory means to achieve the framework's 
objectives,  it  has  to  be  noted  that  use  of  spectrum  as  a  public  resource  is  essentially 
contingent on management and oversight by public authorities to ensure that appropriate 
usage conditions be specified and enforced. Self-regulation is therefore not an option for 
managing  the  use  of  spectrum.  Nevertheless,  technical  harmonisation  measures  are 
based on stakeholder involvement to ensure that the decisions taken ensure functionality 
and  application  in  real-life  usage  contexts.  With  regard  to  other  regulatory  conditions 
attached to right of use, Annex B7 of the Authorisation Directive provides for some form 
of co-regulation, based on voluntary commitments by prospective assignees in selection 
procedures.  As  explained  in  the  effectiveness  section,  in  reality  Member  States  rather 
unilaterally define the requirements to have access to spectrum resources, which is often 
a necessary input for operators to enter and, above all, to continue their business activity. 
This  mechanism  therefore  does  not  ensure  that  regulatory  conditions  (and  the 
corresponding national and EU objectives) are ensured with the least intrusive conditions 
and lowest costs.  

7.3.2.3. Efficiency of the numbering regulation area  

The flexibility of the numbering provisions have allowed a cost-efficient implementation 
and  neither  authorities  nor  operators  have  brought  the  issue  of  administrative  burden 
related to numbering management.  

7.3.2.4. Efficiency of the authorisation regulation area  

The  administrative  cost  and  complexity  of  the  notification  regimes  is  very  different 
across the Member States (starting from none or very simple notification systems to very 
cumbersome  ones)  and  also  depends  on  the  administrative  application  of  generally 
phrased provisions.  

At  the  same  time,  the  heterogeneity  of  notification  requirements  and  general 
authorisation conditions as well as the additional requirements linked to the notification 
result  in  higher  than  necessary  burden  and  increased  cost  of  providing  services  in 
multiple  countries.  The  potential  administrative  costs  due  to  the  need  to  comply  with 
heterogeneous  notification  and  general  authorisation  conditions  can  be  substantial,  in 
particular for smaller providers operating in several Member States.191 There appears to 
be room for simplification and burden reduction, for both (often smaller) new entrants, 
and for provider serving several Member States.  

In  this  regard,  the  public  consultation  revealed  that  the  majority  of  the  stakeholders 
considered it necessary to review the national notification requirements to ensure cross-
border provision of services. While stakeholders would see little value added in a single 
EU  general  authorisation  regime,  arguing  that  a  centralised  process  would  probably 
increase  bureaucracy,  they  plead  instead  for  standardisation  and  harmonisation  of 
(such  as  on-line  application,  standard 
notification 

templates  and  conditions 

191 See for instance benchmarks provided for with regard to the Extended Impact Assessment of a Proposal 
for a Directive on Services in the internal market, SEC(2004)21, ranging from 100,000 euro to 3,6 million 
euro to ensure on-going compliance of an operator with different national administrative regimes. 

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guidelines/categories  of  services  for  notification,  common  contact  point)  for  all  and/or 
specific categories of services, especially in view of provision of cross-border services.  

Also with regard to the general authorisation conditions the public consultation showed 
that  a  majority  of  respondents  consider  it  necessary  to  review  (at  least  some)  of  the 
general  authorisation conditions in order not to hinder the cross-border provision, with 
several  suggestions  aiming  at  deleting  obsolete  obligations192,  reducing  sector  specific 
conditions  (in  addition  to  generally  applicable  rules,  such  as  with  regard  to  consumer 
protection),  identifying  lighter  conditions  for  specific  categories  of  services  while 
ensuring level playing fields with OTTs, harmonising specific conditions (ranging from 
administrative charges to security and network integrity requirements).   

7.3.2.5. Efficiency of the rights of way regulation area 

The  costs  and  burdens  for  administrations  differ  greatly  given  the  ample  procedural 
autonomy  applicable  to  these  provisions.  They  are  significantly  lower  where  the 
procedures are electronic. 

The cost of acquiring rights of way for companies varies considerably between Member 
States, and even within different regions or cities of a Member State. It has however not 
been reported as a disproportionate part of the cost of network deployment, for instance.  

The administrative cost appears to be higher when providers have to deal with multiple 
procedures  in  a  Member  State  and  significantly  lower  where  there  are  electronic 
procedures, as shown in the Impact assessment accompanying the document proposal for 
a  regulation  on  measures  to  reduce  the  cost  of  deploying  high-speed  electronic 
communications  networks193.  Overall,  the  procedures  are  becoming  simpler  and  more 
efficient.  

7.3.2.6. Efficiency of the NRA regulation area  

In accordance with the provisions of the framework, NRAs are to a large extent financed 
by  operators  via  administrative  charges  and  various  transparency  and  accountability 
mechanisms are in place to control their expenditure.  

While certain issues arose in relation to contributions to the budget (e.g. with operators 
contributing  for  a  bigger  share  of  the  budget  pleading  for  more  transparent  and  fair, 
revenue-  related  fixing  of  charges),  it  is  generally  considered  that  NRAs  function 
relatively efficiently. This view is generally shared by operators, which tend to accept to 
finance a well-performing NRA as long as its operator-financed activities are related to 
the regulation of the electronic communications market.  

192 In particular conditions related to universal service, such as information on directories, as well as E-
Privacy conditions overlapping with the General Data Protection Regulation. 
193 
proposal-regulation-european-parliament-and-council 

https://ec.europa.eu/digital-single-market/en/news/impact-assessment-accompanying-document-

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7.3.2.7. Efficiency of other institutional provisions – BEREC and RSPG 

BEREC 

It  is  difficult  to  carry  out  a  comprehensive  cost/benefit  analysis  in  order  to  assess  the 
efficiency of the BEREC Regulation as information is rather limited (costs incurred by 
NRAs,  stakeholders'  benefits  from  regulatory  consistency  derived  from  the  work  of 
BEREC, etc.)194. A significant part of the costs of BEREC (including travelling expenses 
of one expert per NRA participating in BEREC meetings) are paid with the EU subsidy 
that is assigned to BEREC Office which amounted for € 4.02 million in 2015.  

There  are  a  number  of  issues  identified  by  respondents  to  the  public  consultation  and 
through experience, which have a simplification potential and could be streamlined. The 
BEREC  Office195  is  not  aligned  in  many  aspects  with  the  principles  of  the  Common 
Approach for decentralised agencies. The fact that the Board of Regulators is in charge 
of the regulatory tasks (where the Commission has only an observer status) but is not an 
EU agency and the BEREC Office is an EU agency but only provides a support function 
resulted  in  most  of  the  principles  established  in  the  Common  Approach  not  being 
applicable (for example, as regards communication, international activities, etc.) 

The  limited  tasks  and  size  of  the  BEREC  Office  compared  to  other  EU  agencies  also 
have  certain  implications  as  regards  attraction  and  retention  of  staff  as  well  as 
organisational  challenges  (for  example  certain  functions,  such  as  accounting  officer  or 
data protection officer, imply specific 'independence' requirements). In the last months, 
the BEREC Office has explored and implemented a number of actions to improve this 
situation,  such  as  outsourcing  of  some  functions  to  the  Commission  services  and 
synergies with other EU agencies (such as ENISA). 

Some  respondents  to  the  public  consultation  on  the  telecoms  review  pointed  to  some 
possible  improvements,  such  as  longer  or  extendable  mandates  for  the  Chair,  majority 
voting  rules,  adequate  resources,  the  streamlining  of  the  Management  Committee  and 
longer  consultation  periods  or  a  two-stage  consultation  process  on  key  policy  matters. 
Other  aspects  could  also  contribute  to  a  more  effective  set-up,  for  example,  the 
appointing authority powers are currently centralised by one of the BEREC Vice-Chairs 
of the Management Committee of the BEREC Office, which is a 1-year rotating post. 

The current two-tier structure results also in certain inefficiencies which are difficult to 
quantify, for example two separate annual reports and two work programmes need to be 
adopted  –  one  by  the  Board  of  Regulators  for  BEREC  and  one  by  the  Management 
Committee for the BEREC Office. In addition, due to the new rules for EU agencies for 
annual  and  multiannual  programming,  the  work  programme  for  the  BEREC  Office  is 
adopted 11 months earlier than the work programme for BEREC. 

194  We  can  provide  some  figures  as  regards  EU  subsidies  and  resources:  in  2015  the  EU  subsidy  to  the 
BEREC  Office  amounted  to  € 4.02  million  (€ 3.49  finally  spent)  and  the  Commission's  costs  for  the 
monitoring and supervision were € 402 000. 
195 Article 11(5) of the BEREC Regulation establishes that the organisational and financial structure of the 
Office shall be reviewed five years after the date of establishment of the Office. 

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RSPG 

The  Group  operates  substantially  on  the  Member  States'  own  resources,  with  the 
Commission  providing the secretariat  and meeting facilities and reimbursing  an airfare 
per Member State. Generally speaking, it can be said that RSPG meetings are efficiently 
run and take up a minimal time and resources. 

RSPG Opinions and reports constitute advice to the Commission (or Council/Parliament 
as the case may be). Hence, Opinions form part of the inputs that the Commission has to 
consider  in  view  of  possible  policy/legislative  initiative,  together  with  input  from 
stakeholders (industry, civil society, associations) and directly from Member States.   

Possible disagreement by one or several Member States is usually not clearly expressed 
in  a  dissenting  Opinion  to  be  attached  to  the  adopted  Opinions,196  although  allowed 
under  current  rules.  This  gives  the  impression  that  the  RSPG  always  represents  all 
Member  States;  moreover,  Opinions,  which  are  usually  adopted  by  consensus,  tend  to 
represent  the  lowest  common  denominator  among  Member  States  (see  for  instance  on 
Licensed Shared Access or on the Spectrum Inventory)197. They therefore do not go far 
enough in ensuring added value from an internal market point of view. 

7.3.2.8. Efficiency of the standardisation regulation area  

Costs  of  the  development  of  standards  are  typically  incurred  by  intellectual  property 
rights holders as part of their commercial activities. Since no significant intervention has 
taken place it can be assumed that EU policy on ECNS standardisation has not caused 
any  relevant  cost  in  this  respect.  The  consistent  high  level  of  voluntary  industry 
involvement  in  electronic  communications  standardisation,  in  particular  in  highly 
innovative  technologies,  and  the  financial  importance  of  intellectual  property  rights 
portfolios  of  European  companies  tend  to  demonstrate,  that  overall  standardisation  is 
beneficial and thus an efficient sustainable activity outweighing the costs for the players 
involved, even if not every single standard which has been specified will turn out to be 
an economic success in the market.  

While  some stakeholders  in  the public consultation asked for financial  support e.g. for 
industry  participation  in  relevant  industry  fora,  it  should  be  mentioned  that  the  EU 
Regulation  on  European  standardisation198  already  provides  for  instruments  in  this 
respect.  

7.3.2.9. Efficiency of the end-user protection regulation area  

Efficiency  of  end-user  provisions  can  be  analysed  in  different  ways.  Given  their 
respective  degrees  of  flexibility  based  on  the  principle  of  procedural  autonomy,  the 
current  provisions  regarding  number  portability,  switching,  contracts,  transparency  and 
out-of-court  dispute  settlement  allow  for  an  efficient  implementation.  This  view  is 

196 In theory at least, such coordination may face the limit of the independence of NRAs where they are in 
charge with spectrum management issues. 
197  RSPG  Opinion  in  Licensed  Shared  Access    November  2013  (Document  RSPG13-538);  RSPG 
Response to the Commission Report on Inventory November 2014 (Document RSPG14-587). 
198 Regulation No 1025/2012 of 25 October 2012, OJ L 316, 14.11.2012 

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confirmed  by  the  large  majority  of  the  respondents  to  the  public  consultation.  At  the 
same  time,  the  actual  efficiency  of  the  rules  in  place  depends  on  the  transposition  by 
Member States. In fact a large majority of operators (25 operators and 10 associations of 
electronic  communications  providers)  which  reacted  to  the  public  consultation  believe 
that  the  provisions  are  administratively  or  operationally  burdensome  when  providing 
services in several Member States, because of the minimum harmonisation nature of the 
consumer  protection  provisions  in  the  regulatory  framework,  which  lead  to  a  different 
level of protection across Member States.  

More  worryingly,  the  various  implementation  models,  often  supplemented  by  national 
additional consumer protection requirements, also result in varying compliance costs for 
cross  border  providers.  For  example,  when  it  comes  to  number  portability,  half  of  the 
Member  States  have  compensation  arrangements  in  case  of  delay  or  longer  than 
expected  service  interruptions,  whereas  there  are  no  rules  on  this  in  the  remaining 
Member States. The existing rules, more specifically on penalties, vary greatly (from 1-
3€  per  day  to  lump  sums  of  60€).199  Another  example  is  the  minimum  quality  of 
services' standards (Article 22.3 USD), which have been set in 8 EU Member States and 
mostly  for  widely  varying  specific  services  (broadband  speed,  call  centre  services 
etc.).200 

Higher  than  necessary  administrative  costs  may  also  be  related  to  the  different  and 
overlapping sector specific and horizontal legal frameworks. Providers argue indeed that 
this overlap leads to over-regulation, too detailed provisions, and inconsistency of rules. 
For instance, the Consumer Rights Directive201 contains general consumer law rules on 
inter alia information requirements in contracts covering aspects such as characteristics 
of  services,  identity  of  trader,  tariffs  or  contract  duration;  or  requirements  for  distance 
contracts. In the same vein, out-of-court complaint and redress mechanisms are provided 
for under Article 34 Universal Service Directive.  

While the overlaps will be discussed in detail under the coherence section, there seems 
to be clear room for simplification, i.e. to reduce the sector specific rules to those areas 
where they are still warranted.   

Furthermore, business providers consider the application of consumer protection rules to 
business customers as excessively burdensome. They point in particular to the fact that 
large  companies  have  strong  bargaining  positions  and  as  such  do  not  need  consumer 
protection rules.   

Finally,  traditional  providers  point  out  that  they  bear  the  costs  of  implementing  their 
provisions (e.g. porting numbers), while their online competitors do not. This asymmetry 
both shows the impact on the competitive landscape and also the high level of regulation 
which  applies  to  a  category  of  services  within  a  wider,  increasingly  competitive 
environment. 

202 

199 Source: Cullen International (SMART 2015/0003 study) 
200 Source: Cullen International (SMART 2015/0003 study) 
201 The Directive on Consumer Rights (2011/83/EC) 
202https://www.vodafone.com/content/dam/group/policy/downloads/01_12_2015_DSM_Framework_Revi
ew_Vodafone_submission.pdf  

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7.3.2.10. Efficiency of the universal service provisions  

The efficiency of the provisions on universal service differs depending on the services. 
With  regard  to  the  connection  at  a  fixed  location,  subscriptions  for  and  use  of  fixed 
telephony have been dropping, in particular by comparison to mobile telephony203. Also, 
the  use  of  payphones  has  been  dropping  consistently  over the  last  few  years  while  the 
estimated maintenance cost of payphones in the EU is estimated annually over 1 billion 
euro – a significant amount considering a rather infrequently facility use (e.g. the non-
use of public payphones by 88% of the population across the EU28)204. With regard to 
the  comprehensive  directory  and  directory  enquiry  services,  the  provision  cost  is 
difficult  to  estimate,  but  available  data  suggests  that  the  relation  between  the  cost  and 
demand  is  such  as  to  enable  commercial  provision  by  the  market205.  Every  country 
without  a  universal  service  obligation  regarding  directories  and  directory  enquiry 
services, noted the availability of commercial competitors in the market. Availability of 
commercial  services  over  an  extended  period  of  time,  absent  of  any  legal  obligation, 
would  suggest  sufficient  use  to  ensure  continued  availability  in  the  market  even  in  the 
absence of policy intervention.206 While these universal service provisions have proven 
to be effective in the past in addressing basic needs for citizens, the significant drop in 
their use relative to their cost as well as the changes in consumers´ behaviour calls for a 
reflection on their maintenance for the future at the expense of the sector.   

With regard to broadband subscription through connection at a fixed location, it has been 
constantly growing in general. The majority of households in EU Member states (70 per 
cent) subscribed to a fixed broadband connection in 2014207. Adequate access to internet 
seems  to  constitute  a  key  tool  for  social  inclusion208.  Currently,  Member  States  enjoy 
significant  flexibility  under  the  USD;  they  have  the  possibility  to  define  functional 
internet  access  with  basic  broadband  speeds.  This  flexible  system  enables  to  take 
account of the different national circumstances, but may also increase legal uncertainty 
and  lack  of  transparency.  However,  the  majority  of  NRA's  claim  that  the  provision  of 
USO does not affect significantly market competition. 209 

Since the introduction of universal service, only few Member States have calculated the 
net costs and have done so only recently.210 The final amount of the calculated USO net 
cost varies significantly from country to country, depending mainly of the country size 
and on the USO scope. In five countries, the USO net cost is less than 1 million euros. In 
four countries, the USO net cost is between 1 and 10 million euros. While, in 4 countries 
the USO the net cost exceeded 20 million euros.211 Current rules on compensation of the 

203 Tech4i2 et al. (2016) Review of the scope of universal service, SMART 2014/0011 
204 Idem 
205 Idem 
206 idem 
207 Idem 
208 Idem 
209 EC questionnaire on the implementation and application of the universal service provisions (2015) 
210  See  Commission’s  Reports  on  the  Implementation  of  the  EU  regulatory  framework  for  electronic 
communications.  The  countries  listed  are  those  that  were  dealing  with  compensation  of  the  net  cost  in 
2015, see the respective Report, SWD(2015) 126 of 19.06.2015. 
211 EC questionnaire on the implementation and application of the universal service provisions (2015) 

102 

 
 
 
                                                 
103 

net  cost  of  the  universal  service  provision  are  complicated,  and  designated  providers 
cannot be sure what percentage of their bidding tender will be regarded as net cost and 
whether NRAs consider it an unfair burden. The current way of financing mainly by the 
industry is an administrative and financial burden for the sector, which can cause market 
distortions and uncertainty in the market. 

The  public  consultation  carried  out  illustrated  that  the  vast  majority  of  Member  States 
agree  that  universal  service  has  been  significantly  or  moderately  efficient  in 
safeguarding  end-users  from  the  risk  of  social  exclusion.  On  the  contrary,  most  of  the 
electronic  communication  service  providers  and  other  associations  see  little  or  no 
efficiency  at all. They stress in  particular that several elements  have been fraught with 
challenges  and  appeals  (such  as  the  definition,  the  calculation  of  net  costs  and  unfair 
burden,  the  introduction  of  social  tariffs,  etc.)  and  that  the  overall  administrative 
burden212  and  regulatory  uncertainty  have  been  very  high,  for  a  regime  which  has  not 
produced  major  benefits.  Several  respondents  also  note  that  USO  puts  the  burden  of  a 
social objective on the private sector and in particular on the electronic communications 
sector when the burden should be shared by society as a whole. 

7.3.2.11. Efficiency of the 112 and 116 provisions  

The  obligations  regarding  access  to  112,  especially  the  provisions  on  caller  location 
information  are  considered  a  public  interest  service  accepted  by  network  operators. 
However, to the extent that qualitative requirements are attached to the obligation (caller 
location,  equivalent  access)  it  is  more  burdensome  for  network  operators.  For  this 
reason, several operators claim that the financial burden should lay on the public budget 
or  be  shared  amongst  all  communications  providers.  On  the  other  hand,  end-users, 
Public  Safety  Answering  Points  and  stakeholders  (EENA)  are  deploring  the  lack  of 
caller  location  accuracy  in  such  an  important  operation  like  the  emergency  service. 
While  the  cost  of  reliable  network  based  location  technologies  are  deemed  to  be  high, 
handset  based  technologies  might  provide  cheaper  alternatives  to  enhance  the  existing 
network based caller location. In terms of accessibility for disabled end-users, web based 
solutions  could  ensure  a  higher  equivalence  of  access  than  the  currently  implemented 
SMS solutions. 

While the 116 Decision explicitly waives Member States of the obligation to finance the 
116  operators,  Article  27a  (1)  entails  an  obligation  to  promote  116  numbers  and  to 
render  operational  the  116  000  missing  children  hotline.  In  practice,  116  services  are 
implemented differently per Member States213 and per service, either by a NGOs or by 

212  Twelve  European  countries  used  competitive  designation  mechanisms  to  designate  the  US  provider 
either  for  all  or  for  part  of  the  services  encompassed  within  the  Universal  Service  Obligations  (USO) 
scope.  Apart  from  some  countries  where  there  is  no  compensation  fund  in  place,  the  most  commonly 
found way to fund the USO net costs is via sectorial funding. In only a handful of countries all operators 
are obliged to contribute, whilst in the remaining countries where a compensation fund exists a minimum 
income/revenue/turnover is required regarding the operators capacity to contribute to that fund. Among the 
countries where operators are part of a funding mechanism, in three cases a ceiling was established for the 
operators’  contributions  which  is  related  to  operators’  annual  revenues.  In  a  significant  number  of 
countries, the USO net costs were calculated at least once. 
213 The Commission regularly publishes a report on the state of implementation of 116 numbers in Europe 
in  its  dedicated  116  website  (https://ec.europa.eu/digital-single-market/en/116-helplines).  The  report 
contains the evolution of statistics for the past years, and the concrete organisations to which the numbers 

103 

 
 
                                                 
 
104 

national  authorities  providing  the  hotline.  On  the  basis  of  information  provided  by 
hotline  operators,  NGOs  can  also  rely  on  a  mix  of  funding  from  public  (including  the 
Commission's  DAPHNE214  grants)  or  private  sources  (charity  donations  and  corporate 
social responsibility schemes) and in some cases hotline operators are granted waiver of 
call charges due to emergency number status. 

Regarding 116 000 missing children hotline, some of the administrations and most of the 
operators  argue  that  implementing  the  116  provisions  is  costly  and  burdensome,  and 
operators  suggest  that  the  obligation  should  be  matched  with  the  necessary  public 
funding. At the same time, earlier Eurobarometer surveys conducted in 2011 and 2012 
revealed  low  awareness,  which  might  put  in  question  the  effectiveness  of  national 
promotional measures. In addition, some of the services are not taken up at all in most 
Member States (notably  Helpline for victims of crime and non-emergency medical on-
call services implemented in five and two Member States respectively). 

7.3.2.12. Efficiency of the provisions on network and service security and integrity  

The  administrative  costs  for  national  administrations  and  companies  following  the 
introduction of the provisions differ significantly among Member States. Without giving 
precise estimates, the impact evaluation conducted by ENISA shows that some Member 
States  already  had  advanced  measures  in  place  before  2009,  therefore  the  costs  to  be 
borne by those Member States were incremental. 

All in all, over 70% of the respondents to the review public consultation consider that in 
general the costs were proportionate vs. the benefits achieved, and consider the security 
and  integrity  provisions  cost-effective.  Similar  results  were  obtained  in  other  surveys, 
e.g. ENISA's Impact Evaluation paper. The latter report stressed that implementation of 
the  Art.  13a  requirements  affected  both  NRAs  and  providers,  in  terms  of  resources 
needed. In particular, NRAs faced additional costs such as educational costs (for training 
the providers on the new regulations), costs for developing secondary legislation or other 
guidelines, follow-up and audit on the progress of the implementation. Providers faced 
implementation, maintenance and management costs. In their case, the size of the costs 
is largely depending on a variety of factors, such as for example, the level of maturity of 
the  security  measures  already  in  place  and  the  degree  of  cooperation  with  the,  and 
guidance received from, NRAs. 

Nevertheless,  implementing  the  rules  may  be  more  challenging  and  burdensome  to 
smaller (alternative) operators, who lack the appropriate budgets but also the necessary 
internal processes and methodology to implement the requirements.  

7.3.2.13. Efficiency of the must carry and findability provisions  

Regarding their efficiency, the provisions leave ample margin to national authorities to 
adapt  the  rules  to  their  national  circumstances,  therefore  the  situation  differs  across 
Member  States.  Since  EU  level  regulation  does  not  impose  regulatory  obligations  (it 
permits,  but  does  not  require  the  establishment  of  “must  carry”  and  electronic 

were assigned, based on information provided by Member States in COCOM. The next report COCOM16-
05 is due to be published by end of May. 
214 http://ec.europa.eu/justice/grants1/calls/2015_action_grants/just_2015_rdap_ag_0116_en.htm  

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programme  guide  related  rules  by  Member  States),  the  status  quo  does  not  appear  to 
create unavoidable enforcement costs for regulators or compliance costs for businesses.  

The  costs  arising  due  to  national  regulation  appear  to  be  negligible.  “Must  carry” 
regulation does affect the outcomes of negotiations between platforms and broadcasters. 
However  it  is  difficult  to  assess  the  direction  and  scale  of  transfers  between  platforms 
and broadcasters due to the variety of current arrangements, different market power of 
parties and nuances of existing national regulation. There is some, limited evidence that 
loss of “must carry” status can lead to an approximate small decline in audience share of 
respective channels, but the effects are expected to vary215.  

Channels  given  higher  electronic  programme  guide  prominence  (due  to  national 
regulation)  enjoy  significant,  albeit  difficult  to  measure,  advantages.  The  removal  of 
such  regulation  would  lead  to  a  significant  one-off  transfer  of  value  from  broadcasters 
that currently enjoy higher prominence, to transmission providers that could auction the 
most  prominent  spots  on  electronic  programme  guides  (and  indirectly  to  other 
broadcasters, who would regard the value of a prominent slot as exceeding their bid)..216 

7.4. EU added value 

Could  similar  results  have  been  achieved  at  national/regional  level  or  did  EU  action 
provide clear added value?  

The  evaluation  of  the  regulatory  framework  points  to  better  outcomes  for  EU  citizens 
generated in part by EU legislation in the electronic communications sector: more choice 
and  lower  prices,  the  general  availability  of  basic  broadband,  etc.  This  view  is  widely 
shared  by  the  main  stakeholders  of  the  framework  and  confirmed  by  international 
benchmarking and by study results217.  

A  vast  majority  of  respondents  to  the  public  consultation  agree  also  with  the  clear 
advances  in  consumer  protection,  while  both  large  and  even  small  operators  recognise 
the benefit of a more consistent regulatory regime across 28 Member States, in spite of 
the limited achievement of the Single Market. 

Indeed, before the introduction of (the respective provisions in) the framework, several 
Member  States  had  little  sector  specific  consumer  protection  legislation  –  including  on 
end-user rights, security and integrity of network provisions, etc. EU action can thus be 
assumed  to  have  contributed  to  a  more  comprehensive  and  homogeneous  regulatory 
framework with regard to consumer protection than it would otherwise be the case.   

215 A decline of about two percent. (Source: Visionary Analytics, SQW Limited, and Ramboll MC (2016), 
“Survey  and  data  gathering  to  support  the  Impact  Assessment  of  a  possible  new  legislative  proposal 
concerning  Directive  2010/13/EU  (AVMSD)  and  in  particular  the  provisions  on  media  freedom,  public 
interest and access for disabled people”, study for the European Commission, DG Connect.) 
216 An impact assessment carried out in the UK estimated that the total value of the top five slots across all 
traditional  EPGs  (including  Sky,  Virgin,  BT,  Freeview,  etc.)  is  £250m  (in  2012  prices).  (Source: 
Department  for  Culture,  Media  and  Sport,  The  balance  of  payments  between  TV  platforms  and  Public 
Service Broadcasters and the future of Electronic Programme Guides, 2015, p. 19.) 
217 SMART 2015/002 and 003 

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On  the  other  hand,  the  regulatory  framework  facilitated  market  entry  across  borders, 
leading  to  a  level  of  competition  on  the  single  market  which  could  have  not  been 
achieved by regulation at national level.   

Moreover, the differing degrees of harmonisation in regulatory areas with high impact on 
the  market  structure  and  functioning,  such  as  access  regulation  and  spectrum,  has  had 
correspondingly  varied  effects  on  promotion  of  "best  in  class"  models  and  examples 
across the European Union. As discussed in the section dedicated to the effectiveness of 
the  access  provision,  the  framework  has  allowed  some  Member  States  with  older 
infrastructures  and  less  competitive  markets  to  sometimes  front  leap  and  compete  with 
digital leaders in the EU (e.g. Lithuania, Romania). In spectrum assignment, on the other 
hand,  while  the  framework  has  put  in  place  some  basic  protections  against  arbitrary 
assignment  practices,  it  has  to  date  not  been  a  significant  motor  for  development  of 
consistent assignment policies building on common experience. 

Operators,  however,  do  not  perceive  the  value  added  as  evenly  distributed  across  the 
various regulation areas. For instance they insist on the importance of harmonisation of 
access  and  spectrum  provisions  (see  examples  of  cost  estimates  under  sections  7.2.3.1. 
and 7.2.3.2.). Even for other areas covered by EU legislation, operators stress that they 
should be dealt with by means of full harmonisation, since all these elements impact the 
cost of compliance and of any provider operating across several Member States.  

Regarding  the  specific  added  value  of  each  policy  area,  harmonisation  of  access 
regulation  is  central  to  the  need  to  ensure  fair  competition  on  the  internal  market. 
Consolidation  of  access  regulation  (coupled  with  the  necessary  flexibility  to  adapt  to 
local circumstances), even if limited to some aspects of market analyses, resulted in best 
practice  examples  being  adopted  and  implemented  throughout  Europe  to  the  benefit  of 
EU citizens. It has allowed companies to decrease the costs of doing business across the 
EU.   

Spectrum  management  –  with  the  exception  of  allocation  -  has  been  singled  out  by 
stakeholders  (in  particular  88%  of  the  operators  that  responded  to  the  public 
consultation) as a regulatory area where further harmonisation is needed, given its high 
impact on the market structuring and on the operation/availability of services and given 
the  increasing  relevance  of  spectrum  for  the  electronic  communications  sector  and 
beyond that for the entire economy.    

The  value  added  of  the  numbering  provisions  is  mainly  related  to  ensure  end-to-end 
connectivity  across  the  EU  for  products  and  services  which  can  be  traded  and  freely 
circulate  in  the  Single  Market,  in  particular  when  the  SM  card  is  embedded  in  the 
product,  e.g.  for  connected  cars,  as  well  as  fair  treatment  of  providers  in  the  internal 
market. This value added can only increase in the context of the rise of M2M providers 
and  of  the  related  risks  of  fragmentation  on  the  Digital  Single  Market.  The  provisions 
related to ETNS etc. have however not proven to add a lot of added value as no use has 
been made of it due to a lack of demand. 

The  value  added  of  the  authorisation  provisions  lies  with  the  contribution  they  have 
made  to  making  market  entry  overall  easier  throughout  the  EU,  therefore  supporting 
competition on the Internal Market. Moreover, the provisions ensuring the market entry 

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subject to the general authorisation can be considered as a main pillar of liberalisation of 
the sector.  

Although  the  deployment  of  networks  is  a  local  issue,  the  existence  of  harmonised 
rights of way throughout the EU linked to the general authorisation for the provision of 
networks  and/or  services  is  a  condition  for  the  development  of  (cross-border) 
competition  in  the  internal  market  for  electronic  communications.  Overall,  the 
conditions for obtaining rights of way have improved throughout the EU.  

The  EU  value  added  of  provisions  related  to  NRAs  is  linked  to  the  functioning  of  the 
single  market  for  electronic  communications  and  of  the  Digital  Single  Market,  which 
would  not  be  possible  without  independent  regulators  with  the  same  objectives  and 
(minimum)  powers  across  the  Member  States,  acting  in  cooperation  with  each  other. 
RSPG  and  BEREC's  advisory  role  to  the  EU  institutions  are  in  general  positively 
perceived while their effectiveness is at times questioned.  Increased effectiveness would 
increase their added value. The added value of the BEREC Office as an EU agency that 
provides  support  to  BEREC  is  another  relevant  aspect  which  is  already  assessed  in 
previous sections. 

Voluntary  market-driven  standardisation  has  allowed  manufacturers  of  network  and 
consumer equipment to achieve economies of scale across the single market, as this has 
been  the  case  for  instance  for  Ethernet-based  components  and  systems.  However,  as 
illustrated  for  instance  in  the  area  of  Ethernet-based  wholesale  access  products  for 
businesses218, the lack of regulatory coordination and guidance in the field  at EU level 
and  the  subsequent  patchy  definition  of  regulated  products  is  inhibiting  network 
operators,  service  providers  and  business  users  alike  to  take  advantage  of  the  added 
value  offered  by  the  EU  in  this  area,  in  the  forms  of  easier  access  to  markets,  faster 
provisioning and economies of scale.  

The  value  added  of  EU  sector-specific  consumer  protection  rules  is  two-fold.  First, 
while  some  aspects  may  be  covered  by  horizontal  consumer  protection  legislation  and 
hence would no longer justify sector specific regulation, it appears essential to continue 
to regulate certain key elements specific to the telecoms market (such as switching) so 
that  consumers  can  profit  from  the  existing  competition.  Second,  consumer  protection 
rules  are  part  of  the  conditions  that  operators  are  obliged  to  comply  with  when 
authorised  to  provide  electronic  communications  services  and  as  such  have  a  great 
impact on the conditions to do business and on the competition on the internal market.  
In this latter context, full harmonisation would generate additional value.  

Having  EU  rules  on  universal  service,  including  on  access  for  disabled  users  is  a 
matter of fair treatment of providers across borders, and also more importantly, making 
sure  all  EU  citizens,  including  those  with  low  income  or  disabilities,  profit  from  the 
benefits  of  a  digital  society.  While  no  aggregate  data  is  available  regarding  measures 
with  similar  purpose  prior  to  the  adoption  of  the  framework,  in  order  to  measure  the 
exact impact of the framework, the use of the provisions proves their value, while at the 

218  Commission  Study  "Investigation  into  access  and  interoperability  standards  for  the  promotion  of  the 
internal market for electronic communications", WIK, TNO, December 2015. 

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same  time  safeguards  regarding  the  non-discriminatory  treatment  of  operators  on  the 
single market are maintained.  

The value added of the 112 and 116 numbers is linked to the free movement of people 
in  the  EU219.  A  single  European  emergency  number  can  ensure  effective  access  to 
emergency  services  in  a  context  of  increasingly  mobile  Europeans,  thereby  meeting 
public safety and civil protection objectives. On the other hand, numbers for which there 
is little take-up or awareness are unlikely to generate appreciable EU added value. 

EU rules in the area of security and integrity and networks and services are needed 
given that ICT based services are borderless. They ensure an (increasingly) similar level 
of protection for EU citizens and fair treatment of providers across borders. As argued 
above,  their  introduction  led to  a  clear  improvement  of  consumer  protection  in  several 
Member  States  which  had  no  rules  in  this area  before  2009.  EU  rules  in  the  field  also 
reduce the compliance costs for any operators dealing with several Member States, given 
the costs of systems, processes and equipment that need to be put in place.    

“Must  carry”  and  findability  rules  at  EU  level  harmonize  the  scope  within  which 
Member  States  are  able  to  ensure  that  end-users  have  easy  access  to  general  interest 
channels  and  that  they  have  a  diverse  number  of  programs  to  choose  from.  The  rules 
contribute  to  preserve  fundamental  freedoms,  cultural  diversity  and  Member  States' 
prerogatives  in  cultural  matters.  While  these  effects  are  difficult  to  measure  directly, 
Member  States  are  obliged  to  clearly  define  the  relevant  general  interest  objectives 
pursued  by  "must-carry"  obligations  and  to  impose  such  obligations  where  they  are 
necessary.220 Furthermore, the rules facilitate cross border access by users to content and 
cross-border  provision  of  content  to  viewers  across  the  single  market221  and  they 
facilitate  and  encourage  the  provision  of  content  designed  for  a  pan  European 
audience222. 

7.5. Coherence  

7.5.1. Internal coherence 

Is the regulatory framework internally coherent? Have any contradictions, overlaps, or 
conflict  been  detected?  How  is  coordination  ensured  between  the  various  regulation 
areas of the framework? 

As  described  above,  the  regulatory framework  is  composed  of  a  set  of  complementary 
instruments.  The  Framework  Directive  establishes  a  harmonised  framework  for  the 
regulation of electronic communications networks and services, associated facilities and 
associated  services,  outlining  the  general  principles,  objectives  and  procedures 
governing this policy area. The Framework Directive is complemented by four directives 

219  According  to  the  Eurobarometer  414  of  March  2014,  almost  two  thirds  (63%)  of  Europeans  have 
already travelled to another EU country 
220 See art 31(1) of the Universal Service Directive 2002/22/EC. 
221  For  example,  Flemish  broadcasting  channels  are  available  in  NL  because  of  terrestrial  must-carry 
obligations imposed in NL. 
222 
http://suboptimalplanet.blogspot.be/2011/03/euronews.html  

Switzerland, 

must-carry 

Euronews 

example, 

status 

For 

has 

see 

in 

108 

 
 
 
 
 
                                                 
109 

and  several  more  specific  regulations223.  Needless  to  say,  consistency  between  the 
various instruments described above is essential if it is to deliver the  desired outcomes 
for citizens and businesses. 

The  experience  of  monitoring  the  implementation  of  the  framework,  confirmed  in 
particular by the responses of the NRAs to the public consultation, reveals that, generally 
speaking,  the  various  instruments  making  up  the  regulatory  framework  for  electronic 
communications have reinforced each other in the pursuit of its objectives. Similarly, the 
various regulation areas complete and reinforce each other. As an illustration, provisions 
on  market  entry  (authorisation,  rights  of  way)  are  completed  by  access  regulation  and 
spectrum and number management, which envisage access to key inputs based on which 
different  operators  can  compete.  Competition  is  then  expected  to  produce  consumer 
outcomes,  which  the  end-users  can  make  better  use  of  given  the  consumer  protection 
legislation. Finally, where the market alone does not deliver, universal service provisions 
come into play, while minding that such obligations are withdrawn as soon as (through 
technological  progress  or  market  evolution)  the  specific  needs  in  question  are  catered 
for.  Independent  NRAs,  which  play  the  role  of  "referees"  on  competitive  markets,  and 
which are in practice entrusted with most of the objectives and tasks of the framework at 
national level in most Member States, are instrumental in ensuring coordination between 
the various instruments and regulation areas. 

A large number of respondents – including Member States, NRAs and operators - have 
on  the  other  hand  referred  to  the  existing  tension  between  the  objectives  of  the 
regulatory  framework,  which  are not  prioritised. This  leads to  a situation where  NRAs 
make  choices  among  -  at  times  reportedly  conflicting  –  objectives  (e.g.  consumer 
protection  versus  burden  of  universal  service  provider).  However,  while  most 
respondents agree on the need to prioritise the objectives of the framework, there is not 
necessarily a consensus on what the order of the priorities should be. 

A  limited  number  of  internal  inconsistencies  have  however  been  identified  during  the 
evaluation. One illustration is the mismatch between the tasks of the independent NRAs 
and the tasks of BEREC, since BEREC is expected sometimes to issue opinions in areas 
for which not all its NRA members are competent. Moreover, the BEREC tasks, partly 
due  to  the  non-binding  character  of  BEREC  action,  might  not  always  be  adequate  in 
order to ensure coherence with the national regulatory practice at national level. BEREC 
has  called  in  its  Opinion  on  the  Review  of  the  EU  Electronic  Communications 
Regulatory Framework224 for an alignment of the minimum competences of independent 
NRAs to those of BEREC. BEREC and the Commission are called to work together not 
only as regards national market analyses but in many other areas, such as net neutrality 
and  roaming  and  it  is,  therefore,  important  that  adequate  coordination  is  ensured.  In 
some  occasions  this  coordination  has  proved  challenging,  for  example  as  regards  the 
provision  of  information  to  and  from  BEREC  and  the  BEREC  Office  in  the  areas  of 
termination rates and roaming, and there is scope for improvement in order to facilitate 
that each organisation can efficiently perform its tasks. 

223  Only  a  part  of  these  instruments  are  covered  by  this  evaluation,  as  explained  in  the  introductory 
chapter.  
224  BEREC  Opinion  on  the  Review  of  the  EU  Electronic  Communications  Regulatory  Framework  BoR 
(15) 206, of 10 December 2015. 

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110 

Another  consistency  challenge  is  the  respective  scope  of  asymmetric  access  regulation 
(covering operators holding SMP, including providers of associated facilities which are 
not Electronic Communications providers) versus symmetric access regulation (targeting 
all electronic communications network providers regardless of their market position and 
without  applying  economic  principles).  A  few  stakeholders  referred  to  the  relationship 
between SMP and symmetric regulation, present in the Framework Directive and in the 
Broadband  Cost  Reduction  Directive  (2014/61/EU),  which  is  however  solved  with  the 
explicit prevalence of the Framework. 

Lastly, the current procedures envisaged under Article 13a 13b of the Access Directive 
could result in a hindrance to vertical separation proposals, with regard to the definition 
of the conditions required for the assessment of voluntary commitments.  

Finally,  with  respect  to  the  coherence  between  the  regulatory  framework  (in  particular 
access and spectrum regulation) and the Digital Agenda for Europe, it can be stated that 
the two are not contradictory while their objectives are not fully aligned either. In other 
words,  although  the  DAE  objectives  have  sparked  debates  on  necessary  levels  of 
investment  and  connectivity,  this  is  not  fully  reflected  in  the  tasks  entrusted  to  NRAs, 
which are defined by the objectives of the framework. 

7.5.2. External coherence  

To  what  extent  is  this  framework  coherent  with  other  EU  policies  which  have  similar 
objectives?  What  are 
the  other  policy  areas  with  which  coordination  and 
complementarity are particularly important? Have any potential conflicts or gaps been 
detected?  

A number of external consistency issues have been requiring attention during the period 
evaluated and  might still require attention  in the  upcoming review process, concerning 
various policy areas. One clear example is the continued need for consistency between 
access  regulation,  universal  service,  competition  law,  state  aid  policy  and  European 
Structural and Investment Funds.  

Access regulation is based on the principles of EU competition law. Markets which are 
no longer subject to ax ante access regulation (based on a competition policy-based test), 
continue to remain subject to competition law.    

Competition is also considered to be the main driving force behind investment in (high 
capacity)  networks.  Universal  service  is  enforced  only  for  very  limited  basic  services. 
State aid comes in to ensure access to performing infrastructure in areas with no business 
case.  State aid decisions are based on the mapping of the potential investments in the 
areas considered by the specific project, yet under the current framework NRAs have no 
competencies to run infrastructure or investment mapping exercises. Accurate mapping 
exercises  remain  essential  for  taking  correct  public  funding  decisions,  which  do  not 
intervene  in  areas  where  in  fact  there  would  be  a  business  case  and  which  do  not 
indirectly  favour  incumbent  operators,  and  is  also  highly  relevant  to  accurate  ex  ante 
market regulation given the variations in local investment trends and the proliferation in 
some Member States of more localised networks.  

110 

 
 
111 

As regards EU funding, cohesion policy and European Structural and Investment Funds 
(ESIF) are important tools to fill the connectivity gaps in market failure areas and should 
be allocated in a way that allows maximising the resources available225. The experience 
of  the  past  programming  period  shows  that  certain  implementation  models  (e.g.  the 
funding  gap  model)  tend  to  inherently  advantage  the  incumbent  operators,  which  may 
not be in line with the pro-competitive approach of the regulatory framework. 

Overlaps between sector specific and horizontal consumer protection legislation 

An  important  issue  of  coherence  consists  in  the  overlap  between  sector  specific  and 
horizontal consumer protection legislation. For instance, the Consumer Rights Directive 
(CRD)226 contains general consumer law rules on pre-contractual information (Articles 5 
and 6 CRD), which overlap with certain general provisions on contracts in Article 20 of 
the  Universal  Service  Directive.  At  the  same  time,  more  communication-specific 
contract  provisions,  for  instance  on  specific  minimum  service  quality  levels  offered 
remain unique and therefore relevant. In the same vein, the provisions on "Out-of-court 
dispute resolution" (Art. 34 USD) partially overlap with the out-of-court complaint and 
redress  mechanisms  provided  under  the  Directive  on  alternative  dispute  resolution  for 
consumer disputes (Directive on consumer ADR)227 and under the Regulation on online 
dispute resolution for consumer disputes (Regulation on consumer ODR)228. 

An  analysis  undertaken  by  study  SMART  2015/003  revealed  that  the  exact  scope  and 
protection level of each set of rules must be analysed in detail before any conclusions are 
drawn  –  in  particular  in  view  of  making  sure  that  the  level  of  protection  offered  to 
consumers  remains  adequate  and  sector  specific  rules  are  still  warranted.  In  particular, 
even  in  the  case  of  protection  rules  with  similar  purposes  and  similar  measures  (e.g. 
transparency  or  dispute  settlement)  their  exact  scope  and  redress  mechanisms  might 
differ. In any case, a clear need appears to address the (small) inconsistencies identified 
terms  of  potential 
(e.g.  penalties, 
simplification, points to consider when addressing these overlaps are the administrative 
burden on companies and national administrations, and, more importantly, the expected 
effectiveness of a complex legal framework (with the risk that it is not fully respected).    

terminology,  circular  references,  etc.).  In 

225 Compared with the previous programming period (2007-2013), the European Structural and Investment 
Funds (ESI Funds) have stepped up efforts in the areas of ICT and digital networks roll-out. Overall, the 
ESI  Funds  are  expected  to  programme  around  EUR  14.5  billion  to  "Enhancing  access  to  and  use  and 
quality  of  ICT".  The  allocation  of  ESI  funds  for  high  speed  broadband  networks  experienced  a  sharp 
increase  from  EUR  2.7  billion  in  2007-2013  to  around  EUR  6.4  billion  for  2014-2020  (about  EUR  5 
billion ERDF and an estimated EUR 1.5 billion EAFRD).  
226 Directive 2011/83/EU 
227 Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative 
dispute  resolution  for  consumer  disputes  and  amending  Regulation  (EC)  No  2006/2004  and  Directive 
2009/22/EC 
228 REGULATION (EU) No 524/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
of  21  May  2013  on  online  dispute  resolution  for  consumer  disputes  and  amending  Regulation  (EC)  No 
2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR)228 Regulation (EU) No 524/2013 of 
the  European  Parliament  and  of  the  Council  of  21  May 2013  on online dispute  resolution  for  consumer 
disputes  and  amending  Regulation  (EC)  No  2006/2004  and  Directive  2009/22/EC  (Regulation  on 
consumer online dispute resolution) 

111 

 
 
                                                 
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Another element to consider is the relationship between the rules on security laid down 
in  Article  13a  and  13b  of  the  Framework  Directive  and  the  corresponding  security 
provisions  of  the  data  protection  legislation,  including  the  General  Data  Protection 
Regulation  and  the  ePrivacy  Directive  (2002/58/EC).  For  instance,  the  General  Data 
Protection  Regulation229  obliges  controllers  to  implement  appropriate  technical  and 
organisational  measures  to  protect  personal  data  against  accidental  or  unlawful 
destruction or accidental loss, alteration, unauthorised disclosure or access, in particular 
where  the processing involves the transmission  of data over  a network, and against all 
other  unlawful  forms  of  processing.  Article  4  of  the  ePrivacy  Directive  requires 
providers  of  electronic  communications  services,  if  necessary  in  conjunction  with  the 
provider of the public communications network with respect to network security, to take 
appropriate technical and organisational measures to ensure the security of their services. 
Article  4  also  obliges  operators  to  notify  personal  data  breaches  to  the  competent 
authorities. 

Since  neither  the  Framework  Directive  nor  the  data  protection  legislation  defines  the 
notion  of  security,  the  respective  boundaries  between  the  above  mentioned  provisions 
are  not  always  clear-cut.  In  particular,  a  certain  overlap  has  been  noted  between  the 
operational  scope  of  Article  13a  of  the  Framework  Directive  and  Article  4  of  the 
ePrivacy  Directive.  ENISA  reported  that,  although  Article  13a  appears  to  deal  mostly 
with  the  availability  of  the  service,  as  its  main  purpose  is  to  “ensure  the  continuity  of 
supply of services”, the text of the article allows a margin of interpretation with regard to 
the  scope.  While  all  NRAs  have 
the 
continuity/availability  of  the  services,  some  countries  have  made  a  step  further  and 
covered in their national implementation other security concepts than availability, such 
as confidentiality230. This leads in practice to an overlap with the scope of Article 4 of 
the  ePrivacy  Directive  and  most  likely  to  a  duplication  of  regulatory  requirements, 
including personal breach notification requirements, and, possibly, shared supervision by 
different national authorities (NRAs and DPAs).  

implemented  Article  13a 

to  cover 

Finally,  coherence  with  existing  rules  dealing  with  content,  such  as  the  audiovisual 
media  services  Directive  2010/13/EU231  and  the  eCommerce  Directive  2000/21/EC232 
does not appear to have raised specific issues. At the same time, the AVMS Directive is 
also under review currently, which makes the issue of consistency quite relevant.        

Coherence of institutional provisions with the EU approach 

In relation to NRA regulation and in the context of the various restructuring and mergers 
of  regulators  which  occurred  in  several  Member  States,  an  issue  of  conflicting 
requirements  for  regulators  emerged  under  the  various  fields  of  EU  law  (e.g.  different 

229  REGULATIONS  REGULATION  (EU)  2016/679  OF  THE  EUROPEAN  PARLIAMENT  AND  OF 
THE  COUNCIL  of  27  April  2016  on  the  protection  of  natural  persons  with  regard  to  the  processing  of 
personal  data  and  on  the  free  movement  of  such  data,  and  repealing  Directive  95/46/EC  (General  Data 
Protection Regulation)229 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 
April 2016 on the protection of natural persons with regard to the processing of personal data and on the 
free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) 
230 https://www.enisa.europa.eu/publications/impact-evaluation-article13a, p. 10. 
231 OJ No 95, 14.4.2010 
232 OJ No 178, 17.7.2000 

112 

 
 
                                                 
113 

independence  standards  under  energy  legislation,  or  the  need  to  ensure  budgetary 
separation  for  electronic  communication  related  activities  versus  overall  efficient 
financial  management,  etc.).  More  generally,  the  issue  of  consistency  between  the 
BEREC  office  agency  and  the  Common  Approach  for  EU  agencies  has  also  arisen,  as 
discussed under the efficiency section.  

8. CONCLUSIONS 

Relevance 

The analysis above has shown that the specific objectives of the framework - promoting 
competition, realising  the single  market and protecting consumers' interest  – remain as 
valid as before, with an increased relevance for the single market objective.  

Where  conditions  (e.g.,  demography,  geography,  socio-economic  factors)  exist  for  the 
creation  of  a  sustainably  competitive  market  based  on  infrastructures,  promoting 
competition remains the best option to deliver end-user benefits, including connectivity. 
Effective  and  sustainable  competition  drives  efficient  investment  and  fuels  the 
is  not 
development  of 
economically  attainable,  promotion  of  competition  through  access  regulation  can  also 
deliver  end  user  benefits  in  terms  of  prices  and  of  innovative  exploitation  of  network 
capacities  It  ultimately  serves  the  interests  of  end-users,  by  inducing  innovation  and 
providing maximum benefit in terms of choice, price and quality.  

infrastructure  competition 

internal  market.  Where 

the 

At  the  same  time,  connectivity  has  emerged  as  the  underlying  driving  force  for  the 
digital  society  and  economy,  underpinned  by  technological  changes  and  evolving 
consumer and market demands. There is therefore a widely recognised need to consider 
adjusting  the  current  policy  and  regulatory  tools  to  further  support  the  deployment  of 
infrastructure and take-up of corresponding services in line with future needs in view of 
the structural evolution of the sector, its importance within the larger economy, and the 
political commitment of the Juncker Commission to deliver the Digital Single Market. 

Most regulation areas remain as relevant if not more relevant than in 2009 – in particular 
spectrum regulation along with access regulation. While the relevance of certain specific 
components of the universal service regulation is being put into question, the concept of 
a safety net ensuring that all citizens are included in a fully developed digital society is 
gaining  relevance.  Similarly,  while  the  specific  provisions  under  the  consumer 
protection  objective  might  have  to  be  adjusted  in  view  of  technological  market  or 
legislative changes, the basic needs to which the provisions respond remain unchanged 
and their specific objectives remain relevant.      

Effectiveness 

While the specific objectives of the regulatory framework – competition, single market 
and  consumer  protection  –  have  remained  unchanged  during  the  2009  review,  the 
specific  aims  of  this  last  reform  include  aligning  spectrum  management  with  market 
demands  so  that  its  full  potential  to  contribute  to  innovative  and  affordable  services  is 

113 

 
 
 
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realised; making access regulation more predictable, while adding a certain emphasis on 
network investment and finally to ensure better consumer rights.            

The regulatory framework has had an impact on the competitiveness of the sector, which 
in turn has delivered overall significant consumer benefits, in particular basic broadband, 
lower prices, and increased choice. The contribution of the framework - mainly through 
access and spectrum regulation, but also with the support of market entry provisions – to 
deliver competition is undeniable and widely recognised even if sometimes  difficult to 
measure.  

As regards the contribution of the framework to the Single Market objective, the results 
are  rather  modest.  Regulatory  consistency  has  been  achieved  only  to  a  limited  extent, 
affecting  the  operations  of  cross-border  providers  and  reducing  predictability  for  all 
operators  and  their  investors.  More  importantly,  the  cooperation  and  consistency  tools 
available  have  led  to  a  situation  where  best  regulatory  solutions  have  not  always  been 
followed, with impact on end-user outcomes.  

Finally,  the  achievements  of  the  framework  in  promoting  consumer  interests  are 
significant, in tackling certain sector-specific consumer protection issues and in ensuring 
a  safety  net  so  that  all  citizens  can  benefit  from  electronic  communications  services. 
However it is also clear that not all consumer interest rules are still fit for purpose, in the 
context  of  technological,  market,  and  legislative  developments,  and  that  simplification 
can  be  achieved.  At  the  same  time,  consumer  surveys  continue  to  report  a  relative 
dissatisfaction, which requires attention.  

Turning to the contribution of specific regulation areas, access regulation has delivered 
competition,  though  more  at  service  level  than  at  network  level.  While  investments  in 
very  high  capacity  networks  have  advanced,  they  have  not  taken  place  across  all 
Member States at the pace envisaged by the public policy agendas and more importantly 
at  the  pace  to  meet  the  future  connectivity  needs  for  a  fully-fledged  Digital  Single 
Market. Access regulation has also become more predictable throughout the EU, thanks 
to  the  reinforced  EU-level  consistency  check,  which  however  stops  short  of  covering 
remedies, with the effect that significant regulatory inconsistency remains on the single 
market.  

While  clear  advances  have  been  made  in  the  field  of  spectrum  (e.g.  the  release  of  a 
significant amount of spectrum for wireless broadband), the progress has not been such 
as wished for at the occasion of the last review. In particular the impact of the current 
spectrum  regulation  on  competition  and  single  market  outcomes  -  with  direct 
consequences  for  consumers  in  terms  of  availability  of  innovative  and  affordable 
services - is put into question by the current evaluation, with the example of the delayed 
4G deployment in most parts of the EU.  

The regulation of numbers has proven generally unproblematic at national level. On the 
other hand the provisions have not been particularly supportive to the single market so 
far.  The  authorisation  provisions  have  led  to  an  improved  market  entry  situation,  but 
difficulties  remain  in  place  in  particular  in  relation  to  conditions  attached  to 
authorisations  and to  the  multiplicity  and  diversity  of requirements  across  the  Member 
States.  

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While  universal  service  rules  have  been  effective,  reviewing  its  specific  components 
appears however necessary in order for those to remain effective in future. Similarly, in 
order  for  the  consumer  protection  rules  to  remain  effective,  they  might  need  to  be 
reshuffled,  e.g.  to  ensure  that  certain  key  protections  are  extended  to  consumers  of 
services offered by OTT players, or to make sure that the rise of the bundled offers does 
not  create  additional  barriers  to  transparency  and  switching.  As  far  as  network  and 
service security rules are concerned, while their adoption has contributed to an improved 
situation  throughout  the  EU,  their  impact  remains  unequal  throughout  the  Member 
States,  not  least  due  to  the  respective  scope  and  definitions  of  national  implementing 
provisions.    

Efficiency  

The  regulatory  framework  often  allows  ample  flexibility  to  national  regulatory 
authorities  to  adapt  their  decisions  to  national  circumstances,  and  the  actual 
administrative  costs  and  burdens  implied  by  the  regulatory  framework  are  therefore 
dependent  to  a  large  extent  on  the  solutions  adopted  in  each  Member  State.  This 
flexibility allows for cost optimisation for and by national administrations.  

At  the  level  of  the  operators,  costs  and  burdens  are  not  evenly  spread  across  the 
stakeholders.  Access  regulation  will  be  for  instance  considered  burdensome  by 
incumbent operators, yet nothing more than what is necessary to reach the competition 
objective  by  alternative  operators.  Access  regulation  has  moreover  contributed  to  the 
creation  of  new  markets  and  business  models.  Most  operators  also  refer  to  the  many 
consumer protection rules as being overly burdensome especially in view of the differing 
implementation  across  member  States  and  of  the  overlapping  horizontal  legislation. 
Traditional providers also point out that they bear the costs of implementing consumer 
protection provisions (e.g. porting numbers), while their online OTT competitors do not. 
While  this  pleads  for  some  simplification  and  burden  reduction  in  specific  areas, 
consumer organisations, on their part, recall the value of certain sector-specific rules and 
of the discretion left to Member States to complement minimum harmonisation in a fast 
moving sector.       

In line with the requirements of a REFIT evaluation, several areas have been identified 
where the administrative burden can be reduced while preserving the effectiveness of the 
provisions.  While  the  area  of  access  regulation  is  rather  complex,  this  level  of 
complexity is in most cases necessary in order to ensure that the regulation which affects 
operators  directly  is  fit  for  purpose  –  and  therefore  not  too  burdensome  on  operators. 
Punctual exceptions do exist in the case of "stable" markets, where simplified procedures 
can  be  envisaged  without  affecting  the  quality  of  the  regulation  (e.g.  the  case  of  the 
termination  markets).  In  a  similar  vein,  it  can  be  questioned,  based  on  the  actual 
implementation  experience,  whether  the  very  short  cycles  of  market  reviews  are  truly 
necessary.  Achieving  more  regulatory  consistency  in  areas  such  as  spectrum  or 
authorisation  requirements  might  in  addition  reduce  the  administrative  burden  of 
businesses  operating  across  several  Member  States,  while  at  the  same  time  supporting 
the objectives of the framework. 

It  should  however  be  noted  that  a  precise  calculation  of  costs  versus  benefits  has  not 
been possible. On the one hand, while there is an abundance of data concerning policy 
outcomes, there are few complete and comparable data sets available. On the other hand, 

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the  framework  does  not  impose  any  reporting  requirements  to  the  Commission 
concerning  administrative  costs.  Even  when  regulators  or  operators  do  report  on  costs 
voluntarily,  the  lack  of  a  categorisation/classification/definition  of  costs  impedes  their 
comparability and any further solid quantitative analysis.   

EU added value 

The  regulatory  framework  has  played  a  role  in  the  broader  development  of  national 
regulatory  regimes  and  market  developments  that  favour  a  pro-competitive  offer  of 
electronic communications services across  Europe.  It has  contributed to  major  positive 
outcomes for consumers and businesses, across and within Member States. 

116 

it  has 

levelled  up  national  regulation 

Moreover, 
the  area  of  electronic 
communications,  including  in  areas  which  were  previously  not  even  tackled  by  some 
Member  States,  such  as  consumer  protection  where  there  are  too  many  overlapping  or 
varying provisions and simplification can be achieved.  

in 

Coherence 

Not many coherence issues have been identified during the evaluation work. Generally 
speaking,  the  various  instruments  making  up  the  regulatory  framework  for  electronic 
communications  have  reinforced  each  other  in  the  pursuit  of  its  objectives.  As  an 
illustration,  provisions  on  authorisation  enable  pro-competitive  market  entry.  Access 
regulation and spectrum management contribute to positive outcomes for consumers, to 
the  point  where  commercial  offers  render  regulated  universal  services  redundant  or 
obsolete  in  certain  instances.  Some  issues  of  internal  inconsistencies  have  been 
identified. 

Two external consistency issues require however attention in the review process namely 
the coherence between regulation aimed at incentivising competitive network rollout and 
the EU financing and state aid rules in the field, as well as the potential overlaps between 
sector  specific  and  horizontal  consumer  interest  legislation.  Provided  that  detailed 
analysis of the exact scope of the provision in place concludes that sector specific rules 
have  become  redundant,  those  particular  provisions  can  be  withdrawn,  leaving  sector 
specific  rules  only  to  address  those  areas  where  such  rules  are  still  warranted,  in  line 
with the REFIT principles.   

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9. LIST OF ANNEXES 

Annex I - Procedural annex 

Annex II – Summary of public consultation results  

Annex III - Methods & sources annex 

Annex IV – List of legislation evaluated  

Annex V – Screening of the Directives 

Annex VI – Screening of the BEREC Regulation 

Annex VII - Evaluation of the RSPP 

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9.1. Annex I 

Identification 

Procedural Information 

This Staff Working Paper was prepared by Directorate B 'Electronic Communications Networks 
and Services' of Directorate General 'Communications Networks, Content and Technology'. The 
RWP reference of this initiative CNECT/2015/ 007.  

Organisation and chronology  

Several other services of the Commission with a policy interest in the review of the  electronic 
communications  framework  have  been  associated  in  the  development  of  this  analysis.  The 
Telecoms Framework Inter-Service Steering Group met for the first time on 7 May 2015.  

A second Telecoms Framework Inter-Service Steering Group meeting took place on 9 July 2015. 

A third Telecoms Framework Inter-Service Steering Group took place on 26 January 2016.  

A fourth Telecoms Framework Inter-Service Steering Group Impact Assessment Steering Group 
took place on 14 April 2016 to discuss a draft evaluation report and the problem definition of the 
IA. Comments were received by 21 April 2016.  

A  fifth  Telecoms  Framework  Inter-Service  Steering  Group  will  take  place  on  30  May  2016  to 
discuss  the  draft  Impact  Assessment  as  well  as  remaining  comments  to  the  revised  draft 
evaluation report.  

In  the  ISSG,  chaired  by  SG,    DG  CONNECT,  was  flanked  by  DG  DIGIT,  DG  COMP,  DG 
JUST,  DG  GROW,  DG  ECFIN,  DG  FISMA,  DG  TAXUD,  DG  TRADE,  DG  RTD,  DG  JRC, 
DG  SANTE,  DG  EMPL,  DG  EAC,  DG  NEAR,  DG  ENV,  LS,  DG  REGIO,  DG  HOME,  DG 
ENER, DG AGRI, DG MOVE, EUROSTAT, EPSC. 

Regulatory Scrutiny Board  

This  staff  working  document  will  be  submitted,  together  with  the  Impact  Assessment  for  the 
Review  of  the  Regulatory  Framework  for  Electronic  Communications,  for  discussion  at  the 
regulatory scrutiny board meeting of 7 July 2016. 

Evidence 

This evaluation took into account the following main inputs: 

(i) 

(ii) 

the contributions to the public consultation on the evaluation and review of the 
regulatory framework for electronic communications,  
the BEREC input on the review of the regulatory framework released on 10 
December 2015 

It also builds on three studies dedicated to the evaluation and review of the regulatory framework 
for electronic communications : 

118 

 
 
 
119 

(iii) 

(iv) 

(v) 

a study for the "Support for the preparation of the impact assessment 
accompanying the review of the regulatory framework for e-communications" 
(SMART 2015/0005) 
Regulatory, in particular access, regimes for network investment models in 
Europe (SMART 2015/0002)  
Substantive issues for review in the areas of market entry, management of 
scarce resources and general consumer issues (SMART 2015/0003).  

Other recent DG Connect studies in the area of electronic communication have been used where 
appropriate: 

  Review of the scope of universal service (SMART 2014/11),  
  Study on future trends and business models in communications services and their regulatory 

 

impact (SMART 2013/0019), 
Identification and quantification of key socio-economic data for the strategic planning of 5G 
introduction in Europe (SMART 2014/0008) 

  Economic  and  Social  Impact  of  repurposing  the  700MHz  band  for  wireless  broadband 

 

services in the European Union (SMART 2015/0010) 
Impact  of  Traffic  Offloading  and  Technological  Trends  on  the  Demand  for  Wireless 
Broadband Spectrum (SMART 2012/0015)28,  

  Spectrum Policy. Analysis of Technology Trends, Future Needs and Demand for Spectrum in 

line with Article 9 of the RSPP (SMART 2012/0005)27,  

  Survey  and  data  gathering  to  support  the  Impact  Assessment  of  a  possible  new  legislative 
proposal  concerning  Directive  2010/13/EU  (AVMSD)  and  in  particular  the  provisions  on 
media freedom, public interest and access for disabled people 

In  addition  to  the  review  and  other  studies  quoted  above  the  following  European  Commission 
studies and surveys in the area of electronic communication were considered 

 

Identification of the market of radio equipment operating in license-exempt frequency bands 
to assess medium and long-term spectrum usage densities (SMART 2014/0012) 

  Eurobarometer household survey on eCommunications (SMART 2014/0014) 
 

Investigation  into  access  and  interoperability  standards  for  the  promotion  of  the  internal 
market for electronic communications networks and services (SMART 2014/0023) a study on 
the 'standardisation' of wholesale access products 

  Mapping of Broadband and Infrastructure Study (SMART 2012/0022), 
  Mapping broadband infrastructures and services (phase II) (SMART 2014/0016)  
 

Impact  of  Traffic  Offloading  and  Technological  Trends  on  the  Demand  for  Wireless 
Broadband Spectrum (SMART 2012/0015)28  

  Spectrum Policy. Analysis of Technology Trends, Future Needs and Demand for Spectrum in 

line with Article 9 of the RSPP (SMART 2012/0005)27  

  Study in support of the preparation of an impact assessment to accompany an EU initiative 
on reducing the costs of high-speed broadband passive infrastructure deployment (SMART 
2012/0013). 

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  Steps towards a truly Internal Market for e-communications in the run-up to 2020 (SMART 

2010/0016),233 

  Study on the socio-economic impact of bandwidth (SMART 2010/0033) 
  Broadband coverage in Europe in 2013 Updated on an annual basis (SMART 2013/0054) 
  Broadband  retail  broadband  access  prices  in  2013,  Updated  on  an  annual  basis  (SMART 

2010/0038)  

  Challenges  and  Opportunities  of  Broadcast-Broadband  Convergence  and  its  Impact  on 

Spectrum and Network Use (SMART 2013/0014)  

  Use  of  commercial  mobile  networks  and  equipment  for  mission-critical  high-speed 

broadband communications in specific sectors (SMART 2013/0016)  

  Study in support of the preparation of an impact assessment to accompany an EU initiative 
on reducing the costs of high-speed broadband passive infrastructure deployment (SMART 
2012/0013) 

The  other  relevant  sources  quoted  in  the  document,  ranging  from  academic  papers  to  industry 
figures and estimates, are indicated listed in annex III "Methodology of the support studies". 

https://ec.europa.eu/digital-agenda/sites/digital-agenda/files/final_report_internal_market_ecom.pdf, 

233 
http://europa.eu/rapid/press-release_IP-12-193_en.htm?locale=en   

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9.2. Annex II 

Synopsis Report 

on the public consultation on the evaluation and review of the regulatory 

framework for electronic communications 

Introduction  

The consultation  on the regulatory framework for electronic communications  networks 
and services was launched to  gather input for the evaluation process in order to  assess 
the current rules and to seek views on possible adaptations to the framework in light of 
market and technological developments, with the objective of contributing to the Digital 
Single Market Strategy. 

The consultation targeted consumers, providers of electronic communications networks 
and  services,  national  and  EU  operator  associations,  civil  society  organisations, 
broadcasters,  technology  providers,  Internet  and  online  service  providers,  undertakings 
relying  on  connectivity  and  wider  digital  economy  players,  national  authorities  at  all 
levels, national regulators and other interested stakeholders. The consultation gathered a 
total  of  244  online  replies  from  stakeholders  in  all  Member  States  as  well  as  from 
outside  the  Union.  The  consultation  elicited  both  consolidated  contributions  from 
umbrella organisations and individual contributions from various stakeholders. 

electronic 

authorities 

The  participation  of  different  stakeholder  categories  was  overall  balanced  with 
stakeholders  from  the  wider  digital  economy  actively  responding  as  well  as  consumer 
groups,  public  authorities  and  electronic  communications  networks  and  services 
providers.  This  includes  stakeholders  affected  by  the  policy,  those  who  have  to 
implement  it  and  those  with  a  stated  interest  in  the  policy.    Online  contributions  by 
public 
(national 
administrations and sector regulators) 
were relatively fewer than the inputs 
of 
communications 
network or service providers or wider 
economy  market 
digital 
actors. 
representing 
stakeholders 
Among 
electronic  communications  networks 
and  services  providers,  different 
clusters  of  economic  actors  with 
diverse economic power gave input – 
traditional/incumbent 
operators, 
alternative operators. 

report 

This 
categorisation  of  stakeholders  in  presenting  converging  or  differing  views  on  issues 

above 

uses 

the 

121 

 
 
 
 
122 

addressed  in  the  consultation.  The  contributions  of  the  stakeholders  who  gave  their 
consent  to  publication  are  available  online.    This  report  also  takes  account  of 
BEREC's234 input to the evaluation and the review process provided at the request of the 
Commission,  the  RSPG235  opinion  on  DSM  and  the  Framework  Review  and  some  20 
other contributions received outside the online consultation as well as feedback received 
via  the  dedicated  public  hearing  dedicated  to  this  review  .  The  BEREC  opinion  was 
published in December 2015, and can be found on this website. 

This analysis does not represent the official position of the Commission and its services 
and thus does not bind the Commission. 

Respondents by place of residence 

39 

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The input gathered corresponds to the objective of the consultation in both assessing the 
performance  of  the  regulatory  framework  to  date  and  also  providing  insights  about 
possible adjustments in order to respond to market and technological advancements and 
prospective challenges. 

Analysis of responses 

The analysis in subsequent sections of this report is based on inputs received by different 
stakeholder categories. 

Objectives and overall performance 

In  terms  of  the  effectiveness,  it  is  acknowledged  by  most  stakeholders  (consumer 
organisations, Member States, operators, regulators, other) that while the framework 
has  been  successful  in  bringing  more  competition  in  the  market  and  promoting  the 
interests of EU citizens, it was less successful in promoting the internal market. 

On the objective of achieving the internal market, most respondents indicated a moderate 
contribution.  Alternative  operators  generally  perceive  the  framework  as  having  set  the 
right environment for the internal market to develop. Conversely, several incumbents are 

234 Body of European Regulators for Electronic Communications 
235 Radio Spectrum Policy Group 

122 

 
 
 
                                                 
 
 
 
123 

rather negative on this point and also some small players point out that the provisions of 
the  framework  are  not  apt  to  foster  cross-border  deployments.  Many  respondents  have 
stated  that  this  objective  has  not  been  achieved  owing  to  the  lack  of  a  consistent 
approach  by  NRAs  (national  regulatory  authorities),  with  some  of  them  being  seen  as 
more  willing  and  ready  to  enforce  framework  provisions  than  others.  Hence  this 
objective can be considered as only partially achieved. 

The  framework's  contribution  to  the  objective  of  protecting  the  interest  of  European 
citizens  is  rated  more  positively.  Most  stakeholder  groups  (alternative  operators, 
incumbents, others) consider that the framework has contributed moderately to citizens' 
rights and interest. Alternative operators and small fibre operators tend to attribute a 
more significant impact  on EU citizens' interests,  while  several incumbents are rather 
negative  on  this  point,  considering  that  the  interest  of  the  European  citizens  has  been 
promoted only to a certain extent, owing to the hurdles to investment in NGA allegedly 
caused by access regulation. Some large operators and entities wonder if the interest of 
citizens  has  been  harmed  by  the  focus  on  lower  tariffs  rather  than  on  network  quality. 
Finally,  the  sparse  contributions  by  private  individuals  have  a  much  more  negative 
character, with 8 out 12 pointing to little or no impact at all. 

In  terms  of  efficiency  and  whether  the  costs  involved  were  reasonable,  there  was  a 
somewhat  negative  perception.  Larger  operators  (incumbents  and  those  with  mobile 
arms)  consider  that  the  administrative  and  regulatory  costs  borne  have  exceeded  the 
results achieved. Alternative operators believe, on the contrary, that the benefits have 
exceeded  the  costs,  underlining  that  competition,  economical  offers  and  several  clear 
consumer benefits would not exist without the framework and that access regulation is 
necessary and proportionate. Some alternative operators underline the value of having 
a stable, predictable regulatory regime, whilst also highlighting some unnecessary costs: 
the costs of market analysis for termination markets where the outcome of the analysis in 
any event is stable, the cost of questionnaires, the overlap of tasks of public authorities, 
the  lack  of  harmonisation  in  consumer  regulation  including  data  protection  and  data 
retention, of universal service obligations. 

In  terms  of  relevance  of  the  framework  and  whether  EU  action  is  still  necessary,  the 
general perception is that framework is still necessary and there is a consensus amongst 
incumbents and alternatives, large and small, consumer organisations. Alternative 
operators,  consumer  associations,  wholesale  operators  underline  that  competition 
cannot  be  maintained  without  ex  ante  regulation  and  that  full  duplication  of  network 
infrastructures is not realistic. Most incumbents argue for a simplified access regulation 
(limited  to  fixed  infrastructures,  with  only  one  access  product,  based  on  commercial 
negotiations  and  dispute  resolution  rather  than  on  ex  ante  cost  orientation).  Some 
operators and equipment manufacturers argue for a progressive transition to ex-post 
competition law. Many respondents groups support the relevance of the framework for 
network and service security. 

In terms of EU added value and whether similar progress could have been achieved at 
national  or  regional  levels,  most  operators  highlighted  the  importance  of  competition 
for increasing choice and transparency, lowering prices and bolstering consumer rights. 
Incumbents acknowledged the role of the framework in liberalising monopolies. Many 
respondents highlighted a risk of fragmentation due to national implementing measures 
and of incoherence with other  regulation and competition law.  Equipment vendors in 

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particular acknowledged the role of the framework in promoting competition. While the 
desire  to  deregulate  in  one  form  or  another  is  present  in  almost  all  categories  of 
contributors, albeit not equally, none of the contributions concludes that full repeal of the 
framework  is  warranted.  Consumer  protection  rules  and  universal  service  were  the 
subject  of  widely  contradictory  opinions  from  different  stakeholder  groups,  with 
disabled  user  group  noting  that  without  the  framework,  many  measures  to  facilitate  a 
disabled person's access might not have happened. In terms of process, there were calls 
from some operators for a maximum harmonisation to address fragmentation. 

Connectivity  is  the  overall  converging  theme  in  many  contributions  across  different 
stakeholder groups, with many suggesting that it should be a more prominent focal point 
in  the  revised  framework.  Including  investment  as  one  of  the  objectives,  however, 
divides the respondents. In particular,  consumer organisations, alternative operators 
and  regulators  fear  that  this  could  be  seen  as  undermining  the  current  competition 
objective.  Incumbents  and  many  mobile  operators  stress  the  increased  need  for 
connectivity  and  investment  but  diverge  in  the  proposed  solutions.  Connectivity  to  the 
benefit  of  end-users  as  an  overarching  objective  to  which  competition,  internal  market 
and investments provide the means, could be considered as a central theme supported by 
most stakeholder groups. 

Network access regulation  

Extensive inputs were received from all of the major fixed and converged fixed/mobile 
electronic  communications  providers  active  in  the  EU,  whether  they  are  former 
monopolies,  small  or  large  access  seekers  relying  on  their  networks,  or  independent 
fixed infrastructure owners including cable and independent fibre networks. 

Good  connectivity  is  perceived  as  a  necessary  condition  to  achieve  the  Digital  Single 
Market,  with  many  respondents  pointing  to  the  need  for  policy  measures  and  possible 
adjustments  to  current  policy  and  regulatory  tools  to  support  the  deployment  of 
infrastructure in line with future needs. 

Evaluation of the network access regulation 

Amongst stakeholders from the industry, the positions expressed on network access and 
interconnection regulation, including the current SMP-based approach, can be divided in 
two blocks, with on the one hand operators whose business model predominantly relies 
on access (and who strongly support the current ex-ante regulatory approach) as well as 
broadcasters,  and  on  the  other  hand  the  incumbents  (who  call  for  a  reform  of  the 
regulatory  regime  in  place).  Cable  operators  are  supportive  of  the  role  that  the  SMP 
regime has had to promote competition, but warn that overly aggressive regulation could 
hinder infrastructure deployment. 

The  main  argument  from  alternative  operators  and  their  national  and  European  trade 
associations  is  that  regulated  access  and  interconnection  have  driven  competition, 
innovation and investment and that with the ongoing shift to NGA networks the needs 
for  SMP-based  regulated  access  to  broadband  networks  will  remain  acute.  In  addition, 
they submit that the current regulatory approach provides NRAs with the right level of 

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flexibility.  Telecom  users  are  also  strongly  in  favour  of  the  current  access  regulation, 
with the exception of one business users association which considers that the emphasis 
should  be  put  on  service  competition  rather  than  on  the  underlying  infrastructure,  and 
that the sharing of infrastructure should be emphasised. 

125 

infrastructure 

that  promoting 

On the other hand, incumbents consider that the access regime in general is a deterrent to 
investment in NGA networks, does not provide enough predictability, and is a burden for 
operators  and  regulatory  authorities  with  high  administrative  costs.  They  claim  in 
particular 
investments  by  enabling  competition 
downstream  (first  by  the  imposition  of  wholesale  remedies  and  then  by  encouraging 
access  seekers  to  gradually  build  their  own  infrastructure  closer  and  closer  to  end 
customers), the so called "ladder of investment" approach, has failed, in particular when 
applied to NGAs, and that a lighter regime should be put in place with a focus only on 
situations where  monopolistic conditions  persist. The need  to  incentivize investment is 
raised by many incumbent operators. While many mobile operators also follow this line 
of thought, some of the mobile operators support the regulatory approach in place. 

Regulators  consider  that  the  current  approach  drives  investment.  On  the  other  hand, 
some responding Member States call in general for a pro-investment regulatory regime, 
estimating  that  the  current  ex-ante  SMP-regulation  is  outdated  and  should  be  adapted, 
with some suggesting that it should enable NRAs to apply a more flexible approach for 
imposing symmetrical obligations of access to high-capacity networks. 

With  respect  to  the  interconnection  of  voice,  mobile  operators  and  certain  incumbents 
call for a phasing out of the ex-ante regime in place, arguing that the IP-based delivery 
of voice services is modifying market circumstances. MVNOs have an opposing view on 
the  matter,  on  the  ground  that  terminating  networks  will  always  remain  a  bottleneck. 
OTTs consider that interconnection rules are needed to avoid discrimination. 

Many of the access seekers consider that the current rules were effective in addressing 
single dominance. This view is also shared by consumer organisations and part of the 
regulatory  community.  Those  operators  in  principle  agree  with  the  existing  scope  of 
access remedies, while raising issues with its implementation in detail. On the other hand 
incumbent  operators  consider  that  the  full  set  of  access  remedies  is  often  imposed 
mechanically,  without  cost/benefits  assessment  and  without  regard  to  modulation 
according to actual problems identified. Intrusive access remedies, imposed at all levels 
of  the  "ladder  of  investment"  hamper  investments  in  modern  networks.  Moreover,  the 
broad  provisions  concerning  access  regulation  contained  in  the  current  framework 
allows NRAs to engage in product micro-management, business case design and steering 
market outcomes. This is said to cause significant delays in delivering new technologies 
and network upgrades. 

Review of the network access regulation 

The  majority  of  Member  States/public  authorities  that  have  responded  highlight  the 
positive effect that the implementation of the Framework has had on the market and the 
role  of  competition  in  promoting  investments.  However,  there  is  an  acceptance  that 
updating  the  framework  will  be  necessary,  for  reasons  varying  from  promoting 
investment  in  next-generation  infrastructures,  responding  to  technological  and  market 
changes and diminishing administrative costs. Some Member States argue for flexibility 

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in  the  application  of  incentives  to  meet  future  challenges  at  a  national  or  sub-national 
level. Access seekers and some other operators also call for greater guidance to be given 
to NRAs to analyse sub-geographic markets to increase consistency. There are also calls 
from certain Member States, which perceive limits in dealing with oligopolistic market 
structures,  for  a  greater  role  for  symmetrical  rules.  Regulators  broadly  underline  the 
achievements  of  the  current  system  but  argue  that  some  flexibility  may  be  needed,  for 
instance by considering more prominently symmetrical obligations or by simplifying the 
regulatory approach to the termination rates markets. 

Among operators, the responses of the two largest groups of stakeholders (incumbents 
on one side and access seekers on the other) correspond to the general lines of the two 
groups:  the  first  advocating  a  de-regulatory  push  in  the  name  of  changed  market 
dynamics  and  the  risks  involved  in  future  investment  plans,  the  second  defending  the 
link between competition and investments and calling for a protection of access rights to 
legacy  networks  as  well  as  to  upgraded  networks,  where  they  fear  that  a  deregulatory 
approach  would lead to the loss of the welfare gains achieved so far by the regulatory 
framework. Those seeking further deregulation resist  ideas that they fear may  result in 
an increase of the regulatory burden, particularly in relation to regulatory measures that 
may lead  to the continued regulation of  markets even in  the absence of proven market 
power.  On  the  other  hand,  those  that  rely  on  regulation  resist  proposals  that  imply 
establishing a link between investment incentives and a lighter regulatory approach, as 
they  fear  that  upgraded  networks  will  become  increasingly  inaccessible  and  that 
broadband  markets  will  become  increasingly  concentrated  or  even  re-monopolised.  In 
each case, however, the general approach is typically also accompanied by a recognition 
that  regulated  networks  and  their  related  markets  have  changed,  leaving  scope  for 
adaptations. 

In relation to the simplification of access products and focussing on key access points, 
network  owners  responded  in  favour  of  a  drastic  simplification  to  a  single  access 
product (if at all necessary), whereas access seekers insist on the importance of different 
access products to compete at the retail level. On the other hand,  access seekers reject 
the idea that retail market considerations should be the focus of wholesale regulation, an 
idea  that  is  strongly  supported  by  network  owners,  who  consider  that  continued 
wholesale regulation is not justified if retail markets are competitive. 

In relation to different treatment of legacy copper networks (whether pure copper access 
networks  or  upgraded  FttC  networks  with  copper  sub-loops)  to  incentivise  upgrades, 
operators  invoked  the  principle  of  technological  neutrality  and  leaving  the  market  to 
decide  how  to  best  meet  demand.  However,  a  number  of  contributors  consider  that 
copper-based  solutions  will  not  represent  a  credible  alternative  in  the  long  term.  
Investors in FttH solutions and some access seekers call for a recognition that the risk 
involved  in  rolling  out  fibre  to  the  premises  is  higher  than  upgrading  copper,  so  that 
regulatory incentives, if any, should not include FttC solutions. Regulators also propose 
the idea that any risks specific to a particular new investment network project should be 
considered if wholesale tariffs are subject to regulation, in order to allow the operator a 
reasonable rate of return on adequate capital employed. 

Network owners request discretion to decide whether and how to continue to use copper 
assets  (full  copper  loop  or  sub-loop),  whereas  access  seekers  request  guarantees  that 
physical access to copper networks will continue to be guaranteed. While a majority of 

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respondents,  including  regulators,  would  not  agree  to  mandating  the  switch-off  of 
copper networks where fibre is present, they still see a role for regulators to manage the 
transition  where  switching  off  copper  makes  economic  sense,  with  copper  networks 
owners advocating minimal intervention, and others rather invoking public intervention 
to preserve competition (e.g. transitional migration regime). 

With regard to co-investment models, many stakeholders can see the advantages of co-
investment  for  increasing  the  reach  of  NGA  networks,  for  example,  in  less  densely 
populated  areas.  Their  views  however  differ  on  the  related  regulatory  regime.  While 
incumbents  favour  co-investments  on  commercially  negotiated  terms,  access  seekers 
call for strict conditionality to ensure fairness and openness of the co-investment. 

The responses overwhelmingly affirm the important role that civil engineering plays in 
the  roll-out  of  NGA.  Some  Member  States  and  a  number  of  infrastructure  owners 
don't see the need to further intervene to ensure access to civil engineering falling within 
the  scope  of  the  Cost  Reduction  Directive  (2014/61/EU).  However,  alternative 
operators  highlight  the  importance  of  detailed  SMP  obligations,  beyond  the  general 
obligations  in  that  directive.  Furthermore,  incumbent  operators  call  for  symmetrical 
access to in-house wiring. 

There  is  broad  alignment  between  regulators,  Member  States  and  many  others  that 
longer  review  periods  (compared  to  the  current  mandatory  three  years)  would  be 
beneficial, particularly in stable markets such as termination rates. 

Regarding measures aimed at facilitating the roll-out of high-speed networks in the most 
challenging  areas,  responses  were  cautious  with  regards  to  any  first  mover  advantages 
(to  operators  that  are  willing  to  roll  out  next  generation  networks  in  challenge  areas). 
Access seekers and consumer associations warned about the risk of re-monopolisation, 
whereas  network  owners  challenged  the  proposition  that  a  risk  of  strategic  overbuild 
can  be  defined  and  distinguished  from  competition.  Some  Member  States  highlighted 
the  need  for  local  responses  to  sub-national  competitive  and  investment  challenges, 
indicating openness to consider approaches to incentivise first movers on a geographical 
basis, subject to suitable safeguards being built in. In supporting first mover incentives, 
vendors  and  wider  digital  economy  players  suggest  a  concession  model,  with  some 
operators noting that in such a case regulators should be able to define a period in which 
the network operator is allowed to use its network exclusively. Most stakeholders agreed 
to  safeguards  against  re-
that  any  first  mover  advantage  should  be  subject 
monopolisation.  Wholesale-only  models  (which  may  counterbalance  fears  of  re-
monopolisation)  found  the  support  of  equipment  vendors  and  smaller/fibre-only 
network  operators,  but  operators  in  general  and  public  authorities  disagree  on 
whether such models would have a positive effect on investment. 

and 

regulators 

some  Member  States 

On  oligopolistic  markets,  on  the  basis  of  BEREC's  recently  adopted  report,  all 
the 
respondent 
widening/strengthening of regulatory powers to deal with new duopolies or oligopolies 
(where  such  market  structures  lead  to  sub-optimal  market  outcomes)  albeit  still  with  a 
high  threshold  for  intervention.  Some  propose  symmetrical  regulation  as  a  possible 
solution.  Some  alternative  operators  also  raised  concerns  about  the  adequacy  of 
approach under the current SMP test and guidelines to tackle joint dominance or "tight 
oligopoly"  market  structures.  However,  many  operators  warn  of  the  risk  of  over-

calling 

are 

for 

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regulation  if  ex  ante  regulation  tools  are  broadened,  without  a  clear  economic 
underpinning, to tackle oligopolistic conditions beyond the current joint dominance test, 
as set out in Annex II of the Access Directive and the SMP Guidelines, or beyond the 
current threshold for applying symmetrical rules. 

Spectrum management and wireless connectivity 

The  importance  of  wireless  connectivity  and  wireless  broadband,  and  its  link  and 
complementarity  to  a  very  high  capacity  fixed  connectivity  is  acknowledged  in 
consultation responses. Industry is supportive of a more co-ordinated approach and looks 
for additional certainty in investment and possibilities to develop throughout the EU new 
wireless and mobile communications including 5G. Member States generally underline 
the  achievements  in  the  field  of  technical  harmonisation,  and  the  need  for  additional 
coordination  to  be  bottom-up  and  voluntary;  some  of  them  call  for  a  better  balance 
between  harmonisation  and  flexibility.  There  is  widespread  recognition  of  the 
importance of more flexible access and use of spectrum in the future from both operators 
and public authorities, although disagreeing about how to realise this. 

Evaluation of the current rules on spectrum management 

While  a  majority  of  respondents  consider  the  current  regime  to  have  significantly 
contributed  to  promoting  competition,  almost  half  say  it  has  only  moderately  achieved 
the  aims  of  providing  market  operators  with  sufficient  transparency  and  regulatory 
predictability, promoting citizens' interests and ensuring effective and efficient spectrum 
use. A third of respondents considered that the current regime had only a minor impact 
on keeping the administrative burden appropriate and on promoting the Internal Market. 

A majority of respondents that spans public authorities, regulatory and trade bodies both 
in  and  outside  the  electronic  communications  sectors,  MNOs,  converged  and  satellite 
operators, user associations and vendors, consider the current regime to have contributed 
to  harmonised  conditions  for  the  availability  and  efficient  use  of  spectrum.  Member 
States and regulators have in particular, been consistent supporters of this position. More 
reserved  views  are  found  among  broadcasters  and  other  respondents,  notably  from  the 
transport sector. The regime has been significantly more effective for new bands than for 
bands still requiring freeing. 

There  is  a  general  perception  among  several  respondents  (converged  operators, 
operator associations,  vendors)  that  technical  harmonisation  has  worked  well  and  that 
the involved actors (RSPG, RSC/CEPT and the Commission) have delivered. Even those 
parties seeing little or no benefit from the existing regime (M(V)NOs, cable, converged 
operators,  non-ECS  associations)  acknowledge 
technical 
harmonisation, but stress persistent regulatory fragmentation. Points of criticism concern 
the  ineffectiveness  in  addressing  interference  issues  (transport)  and  ensuring  usage 
efficiency. 

the  achievements 

in 

As  for  the  selection  processes  for  limiting  the  number  of  rights  of  use,  industry 
respondents, including operators and vendors, criticize a lack of consistency as well as 
sometimes  unnecessary  restrictions  of  usage  rights.  Some  respondents  recognise 
coherence  of  application  in  the  sense  of  certain  rules  being  widely  used,  while  results 
still differ (converged operators, ECS associations). A majority of respondents (spanning 

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ECS  and  non-ECS  associations,  M(V)NOs,  converged  operators  and  vendors) 
considered that the lack of coordination of selection methods and assignment conditions 
has impaired the development of electronic communications services. The authorisation 
methods  most  often  mentioned  as  efficient  for  wireless  broadband  were  auctions  and 
general authorisations. 

While  respondents  comprising  broadcasters,  mobile  operators,  associations  of  mobile 
and  alternative  operators,  regulators  and  vendors  consider  that  inclusion  of  spectrum 
provisions in several instruments should not per se impede their effective interpretation 
and/or  implementation,  several  respondents  including  incumbent  operators  and  some 
Member  States  nevertheless  consider  a  single  instrument  to  be  potentially  more 
effective, stressing the benefits of applying the same set of rules to all spectrum users, 
which is also supported by most vendors and operators/associations, subject to the rules 
being consistently applied. 

Review of spectrum management rules 

Regarding objectives and principles, most economic actors and some Member States 
seek more consistency in spectrum management to increase legal certainty and spectrum 
value, and to secure greater transparency and predictability for investment, in particular 
on  licence  durations,  pricing  and  availability  of  spectrum.  There  is  also  large  support 
from public authorities to remove barriers to access harmonised spectrum across the EU, 
in  order  to  foster  economies  of  scale  for  wireless  innovations  and  to  promote 
competition  and  investment,  as  well  as  to  avoid  cross-border  service  impairments. 
Operators  also  stress  problems  -  in  particular,  late  access  to  spectrum,  high  reserve 
prices, inefficient spectrum packaging, spectrum left idle and lack of long-term vision. 

The  majority  of  respondents  consider  that  spectrum  assignment  procedures  have  a 
significant  impact  on  structuring  the  mobile  markets  and  their  competitive  landscape, 
e.g.  number  of  operators,  price,  network  investment,  and  consumer  prices.  Some 
(generally large operators) criticise the use of assignment measures as indirect means to 
ex ante regulate the market (through caps, reservations) without the associated objective 
criteria. Others (vendors, some regulators) also consider that additional factors such as 
regulatory conditions (e.g. access obligations for MVNOs) and historical national market 
development have a similar structuring impact. 

responding  Member  States,  broadcasters  and  alternative  operators 
Most 
associations insisted on national specificities and are generally satisfied with the current 
framework.  While  public  authorities  could  envisage  limited  coordination  through 
common  deadlines  for  making  a  band  available  or  the  common  definition  of  certain 
general principles, many economic actors seek greater harmonisation of award methods 
and procedures (need and timing of spectrum release and selections, general principles 
and  objectives,  transparency,  ex-ante  competition  assessment,  refarming  conditions, 
timing  of  advanced  information  to  market  participants,  measures  to  promote  use 
efficiency,  spectrum  packaging)  so  as  to  enhance  legal  certainty,  support  investments, 
promote  competition,  provide  more  clarity  to  manufacturers  and  support  economies  of 
scale.  Member  States  expressed  much  resistance  regarding  coordination  of  spectrum 
valuation  and  payment  modalities,  while  many  operators  oppose  fee  disparities  and 
excesses,  and  in  general  support  greater  coordination  of  assignment  processes.  Most 

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vendors supported harmonisation for predictability and a robust end-to-end value chain, 
but warn that timetables alignment should not delay early movers. 

Assignment  conditions  generally  are  considered  as  heavily  impacting  investment  and 
business decisions, competition and the single market. Most operators agree on the need 
for more consistent binding assignment conditions to increase investment predictability, 
and  in  particular  to  support  and  ensure  objective,  transparent  and  non-discriminatory 
treatment of  operators, transparency and alignment of timing  and conditions of licence 
renewals,  longer  licence  duration,  flexibility  to  trade,  lease  or  share,  technology  and 
service  neutrality  limits,  refarming  conditions,  technical  performance,  use-it-or-lose-it 
clauses  and  interference  mitigation  before  assignment  decisions  are  taken.  On  the 
contrary, there is strong opposition to harmonise or even use wholesale access conditions 
from  operators  and  to  a  certain  extent  to  harmonisation  of  coverage  obligations  from 
Member States. For broadcasters, decisions on criteria and conditions should remain at 
national  level  to  consider  local  specificities  or  media  pluralism  and  cultural  diversity. 
Some also insist on the need for compensation in case of refarming. 

Member States reject full harmonisation but are open to a more common approach to 
spectrum management, some could accept a peer review of national assignment plans as 
well  as  a  certain  level  of  harmonisation  or  approximation  of  conditions  and  selection 
processes.  A  number  of  Member  States  expressed  their  desire  to  remain  flexible  to 
support early take-up of new technologies and to adequately balance harmonisation and 
flexibility in order to be able to adapt to market demand. 

Most  public  and  commercial  respondents  are  calling  for  flexible  or  shared  access  to 
spectrum  to  meet  future  demand,  in  particular  for  5G,  preferably  on a  voluntary  basis; 
vendors  and  operators  insist  on  exclusive  or  licensed  shared  access  for  quality 
purposes.  Broadcasters  raise  interference  issues  and  thus  urge  for  careful  selection  of 
compatible sharing usages; in addition, some point to their incapacity to at the same time 
compete for spectrum and meet cultural targets if flexibility is purely market-based. 

On  refarming,  a  large  majority  including  operators,  vendors  and  their  associations  as 
well as responding Member States and regulators seek further facilitation, notably on a 
voluntary  basis  except  in  cases  of  inefficient  use.    The  large  majority  of  operators, 
vendors and their associations consider that longer licence duration would be helpful in 
this  regard.  Most  operators  see  a  need  to  protect  and  give  priority  to  existing  users  to 
safeguard investments or  avoid interference, while  a  minority believes that appropriate 
spectrum  pricing,  trading  and  auctions  can  address  this  issue.  When  facilitating 
refarming,  some  seek  a  careful  balance  between  flexibility  and  preservation  of 
harmonisation. 

With regard to facilitating deployment of denser networks, many respondents pointed to 
obstacles  -  lengthy  permit  process,  high  administrative  fees  for  back-haul  provision, 
inappropriate  fee  structure,  lack  of  harmonisation  of  management  of  electromagnetic 
fields' emission - to the roll-out of small area access points needed for mobile services, 
while  some  Member  States  disagree.  Many  market  actors  and  public  authorities 
consider  that  a  general  authorisation  regime  would  foster  innovation  and  competition 
both for services and end-devices and should include access rights to public and private 
property to build a network. Vendors seek a common definition of small-area wireless 

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access  points  and  the  harmonisation  of  technical  characteristics  about  their  design, 
deployment and operation. 

While opinions are divided as to whether end-users should be entitled to share access to 
their Wi-Fi connections with others as a key prerequisite for the sustainable deployment 
of  denser  small  cell  networks  in  licence-exempt  bands,  many  public  authorities  and 
private respondents supported the deployment of commercial/municipal Wi-Fi networks 
in  public premises,  while  seeking  appropriate  regulatory  safeguards  for a.o. liability or 
exposure  to  EMF.  Some  operators  reject  such  idea  as  network  roll-out  could  be 
facilitated via various forms of public-private partnerships, many stressed that any such 
public support should be technologically neutral. 

With  regard  to  public  protection  and  disaster  relief  (PPDR),  a  majority  of  respondents 
reject the inclusion in licence conditions of obligations of service quality and resilience 
of network infrastructure to enable a dual use of commercial mobile networks for PPDR, 
as  MNOs'  individual  business  models  do  not  combine  easily  with  stringent  PPDR 
requirements, and therefore should be on a voluntary commercial basis only and based 
on  net  neutrality  rules.  Some  operators  believe  that  providing  PPDR  services  via 
commercial  networks  would  be  economically  more  efficient  than  funding  a  separate 
network for PPDR services. 

Sector-specific regulation for communications services 

Evaluation of the current sector specific regulation for electronic communications 
services 

With regard to the effectiveness of the current regulatory framework in ensuring a high 
level  of  consumer  protection,  the  clear  majority  of  respondents  (Member  States, 
telecom operators and their associations, broadcasters, vendors and OTT providers) 
believe  that  the  current  framework  contributed  to  effectively  achieving  the  goal  of 
ensuring  a  high  level  of  consumer  protection  in  the  electronic  communications  sector 
across the EU. Member States noted that in general the framework had positive effects 
on  the  protection  of  consumer  rights  regarding  traditional  electronic  communication 
services (ECS). In particular, provisions related to contracts and those facilitating change 
of provider (switching) have diminished unfair lock-in practices and ensure a high level 
of consumer protection.  Users  and ECS/ECN  associations, as  well as the majority of 
operators consider that the existing rules have delivered good outcomes and high levels 
of consumer satisfaction. 

Many respondents, however, consider that the current regulatory framework has failed to 
deliver consumer protection with respect to emerging services, which are based on new 
technological  developments  and  currently  fall  outside  the  remit  of  the  sector-specific 
rules. Most responding Member States support specific requirements to be applied to all 
communications services irrespective of the provider ("traditional" telecom operators or 
"new" OTTs) in order to avoid risks of (a) insufficient customer protection, (b) a lack of 
clarity,  and  (c)  confusion  among  consumers  who  might  mistakenly  believe  that  their 
communication is protected by sector-specific rules. 

Some  telecom  operators  think  that  the  current  provisions  have  become  outdated  with 
little substantial value for consumers, except for basic provisions on emergency services, 

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number  portability  and  interconnection  and  argue  that  competition  in  the  sector  would 
allow for the removal of regulation. 

Regarding  provisions  constituting  a  particular  administrative  or  operational  burden,  a 
majority  of  respondents  (mainly  operators  and  their  associations)  believe  that  there 
are  administratively  or  operationally  burdensome  provisions.  The  biggest  concerns 
expressed  by  operators  refer  to  the  different  and  overlapping  legal  frameworks,  e.g. 
Consumer  Rights  Directive  (CRD)  and  Universal  Service Directive.  Some  respondents 
argue  that  this  leads  to  over-regulation,  too  detailed  provisions,  and  inconsistency  of 
rules. Some alternative operators consider the application of end-user protection rules 
to  business  customers  as  burdensome.  According  to  other  incumbents  and  their 
subsidiaries almost the entire Universal Service Directive is burdensome. 

With  regard  to  provisions  to  be  repealed,  the  majority  of  respondents (mainly  telecom 
operators  and  their  associations,  a  few  broadcasters,  vendors  and  OTTs  and  a 
Member State) have identified certain sector-specific end-user rights’ provisions, which 
they  consider  are  no  longer  relevant.  These  include  provisions  such  as  contract  rules 
which  are  covered  by  various  other  directives,  in  particular  the  CRD.  Regarding  the 
maximum  contract  duration,  some  telecom  operators  suggest  either  an  application  of 
these  rules  also  to  OTT  communications,  or  their  abolition.  One  telecom  operator 
suggests the repeal of Art. 34 USD as out-of-court dispute settlements are also addressed 
in the Directive on Consumer Alternative Dispute Resolution (ADR) and the Regulation 
on Consumer Online Dispute Resolution (ODR). Some operators suggest the repeal of 
the  provisions  on  printed  directories  and  public  payphones.  Some  Member  States, 
mobile  operator  association,  EU  and  national  consumer  associations  and  a  trade 
union have not identified any provision to be repealed. 

the  universal  service  obligation  (USO)  and  regarding 

With  respect  to  provisions  protecting  disabled  end-users,  the  USD  contains  specific 
the 
requirements  under 
equivalence  in  access  and  choice.  The  majority  of  the  respondents  (telecom 
associations,  telecom  operators,  users'  associations,  an  association  of  users  with 
disability,  other  NGOs,  regulators  and  Member  States)  found  that  the  current 
regulatory  framework  has  been  effective  in  achieving  these  goals.  Several  operators 
and  NGOs  stated  that  the  relevant  Art. 23a  is  too  weak  ("Member  States  shall 
encourage"),  it  leaves  too  much  discretion  ("where  appropriate")  and  does  not  contain 
financing provisions. They consider that it has therefore been only moderately effective 
in achieving the goals of providing equivalent access. As a consequence, an inconsistent 
diversity of approaches has developed across the EU. 

Incumbent  and  larger  operators  raised  the  financing  issue.  Initiatives  designed  to 
improve  accessibility  of  services  to  disabled  people  should  be  borne  by  the  public 
authorities. If any contribution is required from the sector, it should be requested to all 
players,  including  OTTs,  in  proportion  to  their  incomes  and  the  number  of  users 
(“responsibility-sharing based on a proportionality principle”). 

With  regard  to  the  efficient  implementation  of  number  portability  (NP)  provisions,  a 
large majority of respondents consider that the current NP provisions allow significantly 
or  moderately  for  their  efficient  implementation.  However,  operators  criticised  the 
diversity of approaches, and of technical means put in place, in various Member States. 
In some Member States, there is no common database of ported numbers and in a few of 

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them  direct  routing  of  ported  calls  is  still  not  available.  Some  operators  and  their 
associations  argued  in  favour  of  a  receiving  provider-led  porting  process.  Some 
respondents  stated  that  the  current  NP  obligations  are  not  well  suited  to  new  services 
such as M2M or IoT. 

With  regard  to  the  relevance  of  112  provisions  to  ensure  an  effective  access  to 
emergency  services,  a  large  majority  of  respondents  agreed  with  the  significant 
relevance of the scope and requirements of the current regulation of access to emergency 
services.  National  authorities  are  also  in  line  with  this  trend.  The  telecom  industry 
highlights  the  importance  of  reliable  access  to  emergency  services  that,  in  view  of  the 
technical  standards  and  legal  arrangements  in  place  today,  can  be  provided  today  only 
through ECS.ECN/ECS argue that access to 112 obligations should be imposed on OTTs 
as well, if technically feasible. A large number of stakeholders consider that all the voice 
services  perceived  by  the  users  as  substitutive  to  the  current  PSTN  voice  service  and 
which  also  give  access  to  E.164  numbers  should  be  subject  to  the  same  obligations 
regarding  the  access  to  emergency  services.  In  the  same  vein  regulators  support  an 
obligation on all communication services (including OTTs) that give access to numbers 
in the numbering plan. 

As  regards  the  effectiveness  of  network  and  service  security  rules  in  achieving  their 
objectives, over half of all respondents (including several Member States, most telecom 
operators  and  some  vendors)  consider  that  the  rules  have  been  effective.  A  minority 
(one  Member  State,  a  few  telecom  operators  and  some  associations  of  operators) 
found  them  ineffective.  More  than  a  third  of  the  respondents  (many  incumbent  and 
alternative  telecom  operators  and  associations,  several  ENISA-  member  national 
authorities) underlined the need to involve the complete Internet value chain (including 
OTT services, software and hardware). 

Review of the sector specific rules for communications services 

With regard to the scope of the future rules and the need for sector-specific regulation of 
communication  services,  the  majority  of  respondents  including  BEREC,  Member 
States,  several  associations  of  broadcasters,  of  cable  operators  and  of  alternative 
operators,  consumer  associations,  cable  players  and  OTTs  note  that  there  is  still  a 
need for sector-specific regulation of communications services as ECS have become an 
essential service in every person's life, crucial to ensuring a well-functioning society and 
economy.  Therefore  sector-specific  rules  are  still  considered  necessary  for  sustainable 
competition,  innovation,  a  healthy  low  concentration  of  providers'  market  power  and 
also to guarantee that consumers can reap the benefits of such competition. Several areas 
were  listed,  where  sector–specific  regulation  is  still  needed:  retail  Internet  access 
services,  numbering,  end-user  protection,  universal  service  obligations,  roaming  and 
downstream availability and accessibility of a wide variety of audio-visual services etc. 
Nevertheless, several of those respondents prefer horizontal to sector-specific regulation 
wherever  possible.  A  few  of  them,  however,  oppose  the  inclusion  of  OTTs  within  the 
scope of such rules, because there remain fundamental differences between the telecoms 
market  and  the  market  for  Internet  applications  and  content,  and  applying  the  same 
detailed  sector-specific  obligations  would  be  a  disproportionate  burden  for  a  highly 
dynamic industry sector. 

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Regarding the revision of the current ECS definition, BEREC, several Member States, 
most  operator  associations,  most  incumbents,  some  cable  players,  all  user 
associations and some broadcasters consider that the current definition of ECS should 
be reviewed owing to the increasing uncertainty on the scope of the definition of ECS 
related  to  "conveyance  of  signals",  the  inconsistent  regulatory  obligations  for  similar 
services  and  the  convergence  of  communications  services.  Several  respondents 
emphasised  that  a  future-proof  definition  needs  to  be  end-user-centric,  the  key  factor 
being  substitutability  from  a  customer  perspective.  Those  opposing  revision  of  the 
definition,  (some  Member  States,  OTTs,  software  and  equipment  vendors,  cable 
operators, some broadcasters and a few individuals), argue that the concept of ECS 
has  proven  itself  and  changes  may  create  regulatory,  legal  and  investment  uncertainty. 
According to some stakeholders, instead of including OTT services in the definition of 
ECS,  the  current  regulatory  requirements  on  traditional  electronic  communications 
providers  should  be  loosened.  In  OTTs'  view,  if  the  definition  is  reviewed,  the 
difference  between  Information  Society  Services  and  telecoms  networks  should  be 
maintained. 

The  majority  of  respondents  (some  Member  States,  operator  associations,  most 
incumbents  and  vendors)  are  of  the  opinion  that  for  consumers  OTT  services  are  a 
functional  substitute  for  traditional  ECS.  The  minority  of  respondents  (some  Member 
States, a few operators, OTTs and consumer and user associations) submit that OTT 
services  are  functionally  different  from  ECS.  The  majority  of  respondents  (Member 
States,  regulators,  most  incumbents,  alternative  operators,  associations,  trade 
unions,  vendors)  are  of  the  opinion  that  all  functionally  substitutable  communications 
services  should  fall  under  a  new  common  definition,  but  have  significantly  varying 
positions on the types of obligations that should apply to services falling within such a 
definition. 

The  minority  of  the  respondents  (several  Member  States,  NRAs,  some  associations, 
broadcasters,  OTTs,  a  few  cable  and  fixed  players)  suggest  maintaining  the 
"conveyance of signals" criterion in the definition of ECS. For broadcasters that criterion 
helps  in  distinguishing  telecommunications  from  audiovisual  services.  However,  the 
majority of respondents (several associations, most MNOs, most incumbents and few 
software  and  equipment  vendors)  do  not  consider  "conveyance  of  signals"  as  a 
necessary  criterion.  Rather,  the  lack  of  clarity  in  the  ECS  definition,  when  assessing 
whether  services  “consist  wholly  or  mainly  in  the  conveyance  of  signals”,  opens  the 
door  to  different  interpretations  and  inconsistencies.  According  to  BEREC,  it  "is 
worthwhile to examine whether it is still an appropriate distinguishing factor." 

With  regard  to  the  elements  of  the  ECS  definition  related  to  transmission  services  in 
networks  used  for  broadcasting,  all  broadcasters  and  their  associations,  alternative 
operators and their associations, many fixed and converged fixed/mobile operators, 
an equipment vendor and private individuals advocate that these should continue to 
be  considered  as  ECS.  For  broadcasters,  excluding  transmission  services  from  the 
definition  would  mean  that  they  are  omitted  entirely  from  the  telecom  framework, 
undermining important legal protections for broadcasting (e.g. transmission obligations). 
For some respondents "transmission services in networks used for broadcasting" should 
not be considered as ECS. They argue that in the light of the convergence of the legacy 
broadcasting transmission services and internet media services (including broadcasting), 

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the transmission of the service is platform-based and no longer network-based and any 
reference to services provided on a network has to be eliminated. 

With regard to a possible differentiation between managed and best-effort services in the 
ECS definition, the majority of respondents (incumbents and alternative operators and 
their  associations,  vendors  and  broadcasters)  prefer  no  differentiation  between 
managed and best-effort services in the ECS definition as such a differentiation would 
facilitate  circumvention  of  the  rules  by    opting  for  'best  effort  provision'  free  of 
obligations.  As  to  the  question  whether  sector-specific  regulation  should  be  limited  to 
Internet Access Service, there is almost no support for such reduction, with only a few 
exceptions. 

Regarding the application of sector-specific provisions (end-user and other) to the IAS,  
telecom operators, industry associations and vendors agree that as a general rule only 
horizontal  competition  and  consumer  law  should  apply  to  internet  access  service  and 
that, if any sector-specific provisions are needed, these should apply to all other digital 
services. Almost all national authorities, user associations, OTTs, some broadcasters 
and  IT  service  providers  see  a  need  for  further  end-user  rights  in  relation  to  IAS  in 
addition  to  those  included  in  the  proposal  for  the  Telecoms  Single  Market  Regulation, 
although in many cases these stakeholders do not provide detailed arguments to explain 
this position. 

On  the  issue  of  definition  of  communication  services,  a  significant  number  of 
respondents  (incumbents  and  alternative  operators)  emphasise  that  in  an  "all  IP" 
environment network interconnection is to be distinguished from the interoperability of 
services  as  users  would  be  tied  to  a  single  connectivity  provider  but  not  to  a  single 
communications service provider any more. 

Some respondents do not believe that there is a need to apply the existing, as well as any 
further  end-user  rights,  to  communication  services  (some  Member  States,  a  large 
number  of  mobile,  fixed,  and  cable  operators,  and  OTTs).  The  main  argument  put 
forward  by  them  is  that  horizontal  regulation  (consumer  and  data  protection),  together 
with competition-law tools, should suffice. Those who were in favour of having end-user 
rights applicable to communication services are mostly Member States and consumer 
protection bodies, while alternative operators suggested that maximum harmonisation 
is  needed  for  contractual  information,  transparency  measures,  contract  duration, 
switching, and bundles. 

Several  associations,  most  broadcasters,  a  few 
incumbents  and  converged 
fixed/mobile  players  consider  that  there  are  new  sector-specific  end-user  protection 
issues that need to be addressed. Among the areas listed are: bundling of contracts and 
their  impact  on  switching;  communications  contracts  with  subsidised  equipment; 
continuity  of  service  (telephone  or  internet)  when  switching;  control  of  consumption; 
contract  termination  in  case  of  the  tacit  extension  of  contracts;  rights  of  the  end-users 
when  relocating;  improved  rules  for  end-users  with  disabilities,  findability  of  public-
interest content. 

Finally,  regulators  and  others  indicated  that  some  new  end-user  protection  concerns 
can  be  anticipated  in  relation  to  services  which  are  substitutable  to  traditional  ECS,  
including  access  to  emergency  services,  network  resilience,  cyber  security  and 

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interoperability  between  different  digital  services,  ,  transparency,  protection  of  data 
confidentiality and privacy. 

Trade  unions,  consumer  organisations,  vendors  and  directory  services  expressed 
support for specific rules with regard to voice services for end-users. These contributions 
highlighted  the  importance  of  availability  (call  to  emergency  services,  functionality 
during power outages and disasters) and the importance of voice quality as a distinctive 
characteristic.  Some  mobile  operators  considered  voice-specific  requirements  still 
relevant,  noting  the  need  to  ensure  interconnection  and  access  to  emergency  services, 
while  others  noted  the  importance  of  requirements  such  as  data  retention/lawful 
intercept.  In  general  most  incumbent  operators  would  prefer  horizontal  regulation, 
while  maintaining  the  possibility  of  a  few  specific  requirements  (such  as  emergency 
services) and consumer information was noted as safeguard measure. Directory service 
providers noted a risk that without a specific requirement (Art. 25 USD), operators might 
not provide them with subscriber information on a fair, objective, cost-oriented and non-
discriminatory basis. 

Half of the respondents (some Member States, broadcasters, a few telecom operators 
and  consumer  protection  bodies)  are  of  the  view  that  providers  of  communication 
services as newly to be defined should potentially be subject to an SMP-based regulatory 
regime, if they can limit competition, based on a market analysis and consistent with the 
non-discrimination principle. Those disagreeing (some Member States, associations of 
incumbents,  alternative  and  mobile  operators,  vendors  and  OTTs)  highlighted  the 
existing high level of competition, market dynamics and diversification of providers, and 
stated  that  competition  law  and  horizontal  consumer  protection  offer  sufficient 
protection in this regard. 

There is a majority support ranging from national authorities to mobile operators and 
incumbents, to extend the scope of the access obligations to emergency services to best-
effort  services.  At  the  same  time,  it  is  recognized  by  all  stakeholders  that  minimum 
quality  of  service  should  be  ensured  for  emergency  communications  and  best-effort 
communication cannot provide the end-to-end quality that managed services can. Some 
operators  support  imposition  of  a  general  obligation  to  give  access  to  emergency 
services,  adapted  to  the  quality  of  service  requirements  that  each  type  of  services 
(managed vs. best-effort) can provide. 

Regarding numbering resources and assigning numbers directly to M2M users, most 
MNOs, including smaller ones, highlight that this solution raises many implementation 
and security issues and risks of fraud, could exhaust national numbers, would endanger 
interoperability and end-to-end connectivity. There is a clear consensus that to cope with 
the numbering needs of M2M in the future, a clear framework for extra-territorial use of 
numbers  is  necessary  to  ensure  sufficient  numbering  resources.  A  majority  of 
respondents  see  a  demand  for  over-the-air  provisioning  of  SIM  cards  for  M2M 
communications, and to a lesser extent for end-users' own devices later on. However, the 
idea  of  regulatory  promotion  of  over-the-air  provisioning  is  not  supported,  with  the 
argument that it should be up to the markets to decide on specific technological options. 

While  there  is  a  majority  view  that  transmission  obligations  imposed  on  electronic 
network operators ('must-carry' rules) and rules related to electronic programme guides 
should be adapted to new market and technological realities, there is sharp disagreement 

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as  to  how  such  adaptation  should  be  conceived.  Extension  of  the  current  rules  is 
supported  by  some  Member  States  and  most  broadcasters,  whereas  most  telecom 
operators are in favour of reducing the scope of the rules. Public service broadcasters 
consider  that  the  future  scope  of  rules  should  extend  to  interactive  and  non-linear 
services, should also cover hybrid TV signalling and should apply on a technologically 
neutral  basis  to  all  distributors  of  audiovisual  content,  not  only  to  ECNs.  Telecom 
operators call  for a  level playing  field  between broadcasters and  online platforms and 
call for improving access to content rights. Some cable and telecom operators call for 
complete  removal  of  must-carry  obligations  or  at  least  to  limit  them  to  the  main/most 
essential  general  interest  channels.  Commercial  broadcasters,  one  telecom  operator 
and a citizen consider that the current provisions are adequate. 

Media regulators and some telecom and cable operators consider that the presentation 
and the order on navigation interfaces is crucial for user choices of audiovisual content 
and  that  ensuring  non-discrimination  of  general  interest  content  is  sufficient.  Public 
service  broadcasters  consider  that  Member  States  should  be  competent  to  ensure 
'findability'  of  general  interest  content  on  user  interfaces  of  significant  networks  and 
audiovisual  platforms  and  that  regulated  EPGs  should  be  included  in  new  TV  sets.  A 
pay-TV provider considers that prominence of content could also be improved by better 
referencing/tagging of national and European offers. Several telecom operators point to 
the need for broadcasters to be obliged to make real-time signalling available, in order 
for EPGs to work satisfactorily. 

The universal service regime 

Evaluation of the current rules on universal service 

The  majority  of  Member  States  and  regulators  agree  that  universal  service  has  been 
effective and efficient in safeguarding end-users from the risk of social exclusion, while 
most  of  the  operators  see  little  or  no  impact  and  efficiency  at  all.  Proponents  of 
universal  service argue that  the availability of certain basic services increased and  that 
services became affordable and accessible to all. Opponents claim that (1) the universal 
service  regime  has  become  outdated;  (2)  the  high  level  of  competition  for  fixed  and 
mobile services ensures the affordability of tariffs and not the regulatory obligation; (3) 
the calculation of net costs have been fraught with controversy, challenges, and appeals; 
and  (4)  the  overall  administrative  burden  and  regulatory  uncertainty  have  been  very 
high, for a regime which has not produced major benefits. 

As for coherency with other rules, the majority of Member States agree that universal 
service  has  been  coherent  with  other  provisions  of  the  framework  and  state  aid,  while 
most of the operators see little or no coherence at all. 

The  vast  majority  of  operators  consider  that  this  review  should  be  the  opportunity  to 
redefine or completely reconsider the universal service regime (including its financing), 
with many claiming that it has become obsolete. Member States mostly claim the need 
to maintain a universal service scheme, with flexibility at Member State level on funding 
and on broadband. Regulators support maintaining the status quo. 

Review of the universal service rules 

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With regard to the scope of universal service most respondents consider that the current 
scope is outdated because it was shaped in a context of market liberalisation and since 
then  market  conditions  have  drastically  evolved,  with  more  competition  and  choice 
available to consumers. 

There is a general acceptance among the respondents to exclude public payphones and 
comprehensive  directories  and  directory  enquiry  services  from  the  scope.  Due  to 
availability of mobile telephony and internet, there is no usage of or demand for public 
pay phones. Regulators acknowledge a decreasing demand/usage for public pay phones 
but argue that Member States should retain flexibility to include pay phones within the 
scope.  As for directories, the availability of the same information through the internet is 
a  further  competitive  alternative.  However,  some  directory  and  local  search  providers 
underline that access to data risks being refused in the future, absent a universal service 
obligation guaranteeing access to directory enquiry services. 

Concerning  the  provision  of  telephony  services  at  a  fixed  location,  operators  mostly 
agree  that  this  inclusion  in  the  universal  service  scope  is  no  longer  necessary,  because 
various  types  of  players  are  providing  voice  services  (mobile,  VoIP)  on  a  competitive 
basis while regulators and Member States mostly claim the opposite. 

With regard to the inclusion of broadband within the scope of universal service, while 
most  operators  and  their  associations  have  no  doubts  about  the  positive  impact  of 
broadband on social and economic life, they claim that USO is not the right instrument 
to foster broadband deployment. In any case, if broadband were to be included in the US 
regime,  it  would  have  to  be  revised  substantially.  Respondents  supporting  both  in  and 
out options (mostly Member States and regulators) submit that Member States should 
retain the flexibility to make the choice at national level. 

Most  operators  and  their  associations,  several  Member  States  and  regulators 
consider  that  broadband  under  universal  service  bears  high  risks  of  market  distortions 
and cost  inefficiencies. In particular, industry funding  is  considered too distortive.  The 
risk of lowering incentives to invest, crowding-out effects, delays in network expansion 
and  unpredictable  large  financial  transfers  between  competitors  (if  industry  funding  is 
used) are considerable. Instead,  an investment-friendly regulatory framework, lowering 
of  deployment  costs,  demand  stimulation,  and  well-designed  public  subsidy  schemes 
targeted at cases of clear market failure (evaluated by an impact assessment) should be 
used for fostering broadband instead of USO. Many also highlight the need to promote 
competition  and  commercial  investment  via  regulatory  tools.  The  use  of  such  other 
public policy measures should be based on timeliness (so as not to come in too early to 
disrupt  or  crowd  out  private  investments),  proportionality,  non-discrimination  and 
technological neutrality. 

As  to  how  broadband  should  be  defined  if  included:  those  favouring  the  speed  aspect 
(consumer  groups,  several  Member  States,  media  players,  operators)  consider  it  a 
simpler  and  more  neutral  parameter.  Media  players  argue  for  sufficient  speeds  to 
deliver  media  content.  Those  favouring  the  criterion  of  the  use  of  certain  types  of 
services (ECS/N associations) generally feel that it is more flexible, able to evolve with 
time, more technologically neutral and has a more direct link to social inclusion. Some 
players are wary of setting the speeds based on the average speeds used by the majority 
of the population, so that the speeds are not set at a high level. With regard to the list of 

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essential services, most of the respondents agree that the list of services should be based 
on what is necessary for social (digital) inclusion, but they have varying views on what 
set services this would entail. 

With  regard  to  financing  universal  service,  most  operators  and  associations  agree 
that  the  most  appropriate  and  equitable  way  of  financing  the  universal  service,  in 
particular  in  light  of  the  possibility  to  include  broadband  within  the  universal  service, 
would be through public funds. Broadband for all should be supported through general 
taxation  since  it  is  a  general  public  interest  goal  that  benefits  society  as  a  whole.  The 
scope of universal service should be defined narrowly, representing only a safety net in 
a  market-driven  sector.  Many  operators  state  that  industry  funding,  especially  when 
limited  to  operators,  is  disproportionate.  The  use  of  public  funds  would  have  the 
advantage of limiting the risk of setting too high targets for the universal service and is 
the  only  way  of  ensuring  that  Member  States  properly  weigh  the  needs  against  costs 
because  of  the  need  of  reducing  public  expenditure  and  maximising  public  economic 
welfare.  The  uncertainty  of  the  right  to  compensation  in  the  present  universal  service 
system and the difficult enforcement that led to disputes/litigations can be considered as 
a weakness. 

Several  actors  considered  a  combination  of  public  funding  and  industry  funding 
acceptable with the majority of respondents however specifying that providers of on-
line  content,  applications  and  services  should  contribute,  given  they  are  the  biggest 
beneficiaries of access.  Broadcasters warned against the redirection of resources from 
audio-visual  content,  innovative  online  services  and  digital  skills  activities  to  the 
financing of infrastructure, since availability of such content is an important determinant 
for the development of broadband networks. 

According to regulators, the current funding mechanisms for USO remain relevant and 
that  flexibility  should  be  retained,  allowing  Member  States  to  choose  the  appropriate 
mechanism. 

Most  market  actors  and  regulators  agree  that  universal  service  is  not  the  right 
instrument  to  foster  very  high-capacity  connectivity  for  public  places.  Market  forces 
deliver  these  services  and  other  public  funding  policies  should  be  used  because  the 
service is of public interest. Only a small minority of respondents (satellite operators) 
agree  that  universal  service  should  play  a  future  role  in  to  help  realise  public  interest 
objectives, but this should be financed by public funds. 

Most  market  actors,  Member  States  and  consumer  organisations  submit  that 
obligations  related  to  disabled  end-users  should  be  incorporated  in  horizontal  law. 
Respondents  stress  that  any  obligations  should  apply  equally  to  all  market  players. 
Through  the  broader  implementation  of  the  provisions  of  Article  23a  of  the  Universal 
Service  Directive,  a  wider  choice  of  services  and  tariffs  for  disabled  users  could  be 
achieved.  According  to  regulators,  specific  provisions  for  disabled  end-users  are 
already  included  in  the  national  regulatory  frameworks  of  many  Member  States. 
Measures in the Directives should continue to be flexible enough to adapt to the situation 
of each country. 

Institutional set-up and governance 

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Evaluation of the current institutional set up and governance structure 

The perception as regards NRAs' independence is generally positive, in particular those 
safeguards  applicable  to  independent  NRAs.  This  perception  is  supported  by  different 
kinds  of  stakeholders,  in  particular  public  and  private,  including  operators  (mostly 
incumbents as well as some alternative operators and trade associations). 

Just  over  half  of  the  respondents  consider  that  there  is  generally  a  sufficient  degree  of 
coherence  in  the  application  of  the  regulatory  framework  by  the  various  institutional 
players (NRAs, BEREC, the European Commission). This idea was supported by public 
authorities,  especially  regulators  and  approximately  half  of  the  operators.  Some 
operators propose to reduce the overlapping competences at EU and national level and to 
reduce and prioritise the objectives of the framework. 

BEREC's  role  is  positively  perceived  in  relation  to  the  Art.7  procedure,  roaming,  net 
neutrality, M2M communications and advice to EU Institutions.  While more than half 
of  respondents  (including  national regulators)  considered  that  BEREC  has  achieved  its 
main  objective,  a  group  of  incumbent  operators,  on  the  contrary,  considered  that 
BEREC has not achieved its main objective, arguing that flexibility is overall favoured 
compared  to  harmonisation/consistency  of application and that BEREC has  a tendency 
to support over-regulation. Some operators stated that BEREC should be constituted as 
a supervisory authority independent from national interests or that it should be a proper 
EU regulatory authority with decision-making powers. 

Some  respondents  submit  that  BEREC’s  current  institutional  set-up  results  in  it  opting 
for  greater  flexibility  at  national  level  or  the  lowest  common  denominator  instead  of 
focusing  on  a  more  consistent  or  harmonised  approach  for  the  single  market,  and 
therefore, BEREC's Positions and Guidelines are sometimes just descriptive documents 
and not a collective commitment or a development of best practice guidelines. Suggested 
proposals  for  addressing  this  include:  allowing  BEREC  to  make  binding  decisions, 
appointing  board  members  for  four  years,  establishing  a  Director  appointed  by  the 
Board, more adequate funding, reassessment of the location of the BEREC Office, more 
consistent  launch  of  consultations,  longer  consultation  periods  and  introducing  a  two-
stage  consultation  process  on  key  policy  matters.  There  were  also  calls  for  a  stronger 
advisory role to  the Commission,  more pro-activeness,  and improved transparency and 
stakeholders' involvement. 

As regards consistency of market regulation, just over half of the respondents answered 
that the Art.7/7a process had been effective in achieving greater regulatory consistency, 
while a third were of the opinion that this process had little or no effect on consistency. 
In  the  first  category  of  positive  responses,  there  were  many  alternative  operators, 
FttH-operators  and  some  incumbents  and  MVNOs.  Also  those  regulators  and 
Member States who responded were largely positive. With regards to areas which could 
be  improved,  many  respondents  who  were  generally  positive  suggested  that  the  entire 
process  could  be  streamlined,  made  less  burdensome  for  all  stakeholders  and  that  the 
Commission's role vis-à-vis remedies (under Art.7a) should be strengthened, either by a 
veto  power,  or  by  a  so-called  double-lock  veto  (i.e.  regulators  would  be  required  to 
withdraw the draft regulatory measures if BEREC agrees with the Commission's serious 
doubts). 

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Those who disagree, are mainly incumbents as well as some individual respondents. 
The  main  arguments  brought  forward  for  this  view  differ  widely.  On  one  hand,  it  is 
criticised  that  the  current  process  does  not  lead  to  enough  consistency.  On  the  other 
hand, some respondents complained that the current system attempts a 'one-size-fits-all' 
approach  not  taking  sufficient  account  of  the  need  for  different  solutions  in  different 
Member States, i.e. not giving regulators enough discretion. Regulators challenged the 
need  to  ensure  further  regulatory  consistency  and  the  link  between  the  lack  of 
consistency and the current institutional set-up. Regulators state that access markets are 
intrinsically local and the nature of competition is not homogeneous either for supply or 
demand reasons. 

As regards the current spectrum governance, the technical side of harmonisation is seen 
by most respondents to be working well with its aim of harmonising the least restrictive 
conditions.  There  is  criticism  of  the  present  system's  capability  to  bring  the  actual 
services into being in a coordinated and timely manner. 

There  is  significant  support  for  the  role  of  RSPG  in  assisting  and  advising  the 
Commission on radio spectrum policy issues, with some respondents promoting it for a 
status  similar  to  BEREC.  The  interplay  between  national  experts  and  the  European 
format is seen to work well. In particular, vendors would like the RSPG deliberations to 
be more open to industry participation. 

Review of the institutional set-up and governance structure 

Institutional set-up for market regulation 

Almost  half  of  the  respondents  agree  that  the  current  institutional  set-up  at  EU  level 
should  be  revised  in  order  better  to  ensure  legal  certainty  and  accountability. 
Respondents call for i) a clearer division of powers between the different institutions (to 
avoid  overlapping),  ii)  making  sure  that  institutions  are accountable  for  their  decisions 
(both  politically  and  legally),  iii)  a  high  level  of  transparency  in  decision-making 
(improved  stakeholders'  involvement).  The  arguments  brought  forward  for  change, 
however,  differed  considerably.  On  the  one  hand,  a  group  of  mainly  incumbent 
operators proposed more discretion for NRAs with a reduced role of the Commission (or 
BEREC),  highlighting  the  need  for  taking  account  of  national  circumstances.  On  the 
other  hand,  a  number  of  voices  have  called  either  for  an  increased  role  of  the 
Commission to ensure consistency (through a veto for remedies, for example), or even 
the establishment of a pan-EU regulator.  The regulatory community  was  of the view 
that there are benefits associated with all NRAs having a common toolkit and flexibility 
to determine which tools to use, in particular in view of the increasing complexity of the 
sector. 

Amongst  those  who  favoured  a  revision  of  the  current  institutional  set-up,  proposals 
differed  from  BEREC  adopting  a  limited  advisory  or  benchmarking  role  (giving 
opinions  and  giving  assistance  to  NRAs  where  needed,  providing  timely  technical 
guidance, etc.) to turning it into an EU regulatory authority with proper decision-making 
power.  Some  respondents  called  for  strengthening  BEREC's  role  within  the  Art.7 
procedure  and  also  for  improving  coordination  rather  than  implementing  institutional 
changes.    Some  incumbents  and  alternative  operators  submit  that  BEREC  in  its 
current  form  has  shown  a  limited  ability  to  act  strategically  and  in  the  interest  of  EU 

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competitiveness and, in particular, for  the development of the single market. Further it 
was  alleged  that  it  does  not  contribute  to  the  objectives  of  the  framework  in  a 
satisfactory  manner.  Most  respondents  (all  types  of  operators  and  public  bodies) 
considered that the current EU consultation process can be streamlined. However, in the 
detail  as  to  how  this  could  be  done  the  respondents  vary  considerably.  Whilst  some 
respondents  call  for  more  NRA  discretion  (and  a  less  prominent  role  for  the 
Commission),  others  ask  for  full  harmonisation  measures,  at  a  minimum  regarding  the 
termination  markets.  In  addition,  a  shift  from  ex-ante  to  ex-post  control  is  proposed, 
rendering  an  Art.7  procedure  less  relevant.  Among  those  who  disagree  (largely 
alternative  operators),  most  argue  that  the  current  process  is  well-balanced  and  has 
proved effective.  

Some  incumbents  advocate  for  dividing  competence  between  EU  and  national  levels, 
making BEREC redundant, arguing that stronger compliance or a more binding nature of 
BEREC guidance would not be appropriate. On the contrary, some alternative operators 
supported a stronger role of BEREC within the Art.7 procedure and the strengthening of 
its  influence  on  the  scope  of  remedies  in  case  of  a  veto  of  the  Commission.  The 
sentiment as regards whether BEREC should be given  more executive tasks or binding 
powers  is  generally  negative  (including  the  majority  of  operators  as  well  as  public 
authorities). Some respondents are concerned by the lack of accountability of BEREC 
because  it  has  a  'de  facto'  significant  influence  on  national  regulatory  decisions  and 
decisions by the Commission. 

The majority of the respondents disagreed with the establishment of an EU Agency with 
regulatory  decision-making  powers  for  all  the  different  areas  (market  regulation,  EU 
spectrum  management,  end-user  protection  and  other).  Some  respondents,  mainly 
operators,  recommended  that  an  EU  agency  should  be  responsible  for  services  of  the 
EU single market or for issues such as consumer protection, content, service platforms, 
whilst NRAs should continue dealing with local issues (e.g. network access). As regards 
spectrum  and  numbering  there  was  a  call  for  more  harmonisation,  but  there  were 
divergent positions as to whether these issues should be dealt with by an EU agency. 

The  regulatory  community  expressed  its  view  against  further  harmonisation  and 
indicated  that  differences  in  regulatory  approaches  can  be  beneficial  where  they  allow 
experimentation  and  innovation  (leading  to  the  discovery  of  new  best  practices). 
Respondents  were  divided  as  to  whether  a  common  EU  approach  would  add  value  in 
addressing  the  differences  in  the  regulatory  approach  chosen  by  NRAs  for  individual 
markets  in  similar  circumstances.  The  regulatory  community  also  notes  that,  in  the 
wider  digital  ecosystem,  it is  particularly  important  to  adopt  a  “light  touch”  regulatory 
approach so as not to undermine investment and innovation. In principle, there could be 
more room for co-regulation and self-regulation mechanisms. According to regulators, 
while this kind of innovative and “softer” approach to regulation can be effective, where 
it  is  pursued  it  will  be  important  that  its  details  are  defined  “bottom-up”,  through  the 
direct involvement of the affected stakeholders. 

Consumer  associations  called  for  caution  and  considered  that  co-regulation  and  self-
regulation should only be used on very specific issues and under strict conditions, such 
as:  strong  independent  governance  of  the  self-regulatory  scheme,  oversight  and 
enforcement across  the sector, and the  presence of  effective sanctions in cases  of non-
compliance. 

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As regards BEREC and the BEREC Office, almost half of the respondents had identified 
provisions  in  the  framework  which  in  their  opinion  should  be  revised.  Proposals  put 
forward include longer or extendable mandates for the BEREC Chair, relocation of the 
BEREC Office and definition of the role of BEREC in drafting Recommendations. Some 
national  regulators  considered  that  the  governance  structure  is  satisfactory  but 
suggested  a  number  of  proposals  for  the  mandate  (consultation  by  the  Commission  on 
legislative  initiatives,  new  responsibilities  as  regards  connectivity  objectives,  more 
involvement in the area of spectrum through the exchange of best practices in the design 
of  auctions  and  beauty  contests  and  monitoring  of  coverage  and  QoS),  deliverables 
(binding  acts  in  limited  circumstances,  reinforced  data  collection)  and  functioning 
(simplification of the role of the Management Committee, establishment of an office in 
Brussels). 

Consumer and civil society organisations referred to the need for better collaboration 
of  BEREC  with  consumer  organisations,  civil  society  organisations  and  individual 
operators in addition to operators' associations as well as with other bodies/agencies such 
as  ERGA  and  ENISA.  The  regulatory  community  has  also  identified  the  need  to 
strengthen  the  cooperation  with  other  networks  of  regulators  established  in  adjacent 
economic sectors. 

NRA status and competences 

There is overall support for strengthening NRAs' independence, in particular by ensuring 
i) complete separation between ownership of providers and regulatory tasks, ii) political 
independence in particular in cases of restructuring, iii) control of adequate human and 
financial  resources  and  iv)  no  political  appointment  of  Board  members.  Alternative 
operators  stated  that  NRAs'  independence  may  also  be  affected  when  sector-specific 
NRAs are merged with other authorities. Respondents favoured that the powers of NRAs 
are  extended  to  areas  such  as  State  Aid,  consumer  protection  and  coordination  of 
spectrum  policies.  The  regulatory  community  stressed  the  need  of  aligning  the 
minimum competences (including end-user protection) of NRAs to those of BEREC. 

A  clear  majority  of  respondents  considered  that  NRAs  should  have  a  role  in  mapping 
areas  of  investment  deficit  or  infrastructure  presence  because  they  are  vested  with  the 
necessary  powers  to  access  relevant  information  and  have  the  necessary  expertise,  as 
well  as  independence.  Those  opposed  to  such  a  role  contested  as  a  matter  of  principle 
any  public  interference  with  investment.  There  is  strong  support  to  a  revision  of  the 
framework  to  better  accommodate  the  role  of  NRAs  regarding  state  aid,  notably  i) 
identification of target areas, ii) setting access price and access obligations, iii) ensuring 
better coherence between state aid and ex-ante regulation and iv) resolution of disputes. 
A few respondents propose that the role of NRAs regarding mapping of infrastructures 
or  setting  target  areas  must  be  limited  to  provide  technical  assistance  to  the  relevant 
competent authorities or to being consulted.  

Most operators  indicated the need to revise several aspects of the general authorisation 
conditions, strictly  interlinked  with  some  general  substantive  choices  on  the  scope  and 
extent  of  regulation  on  ECNS  (level  playing  field),  in  order  not  to  hinder  the  cross-
border provision of electronic communications services and networks. Several operators 
suggested  a  specific  lighter  regime  for  some  categories  of  services  (best  efforts  OTT, 
business  services,  small  cross-border  providers)  in  order  to  reduce  cross-border 

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obstacles.  Other  suggestions  included  the  harmonisation  of  Mobile  Network  Codes 
conditions, reducing the scope of national discretion in setting the conditions attached to 
rights of use, and a common notification template. 

The  principle  according  to  which  established  and  non-established  operators  should  be 
subject to the same rules in the country of provision was stressed by several respondents. 
The  extension  of  notification  requirements  to  OTTs  as  well  as  the  harmonisation  of  a 
notification  template  and  administrative  simplification  (online  submission,  single 
language  version,  one-stop-shop,  harmonisation  of  categories  of  services)  were 
suggested, in particular by business users and cross-border providers. 

On numbering, most respondents do not consider it necessary to allocate more executive 
powers to BEREC, in particular since numbering is a national competence and existing 
harmonisation at CEPT/ITU/COCOM level seems to be working. On the contrary, some 
operators  did  not  exclude  the  power  to  grant  pan-EU  numbers  for  specific  services 
(M2M). 

Institutional set-up for spectrum management 

With  regard  to  spectrum  governance,  in  order to  serve  the  future  wireless  connectivity 
needs of the EU, a common EU approach to governing spectrum access was welcomed 
by  respondents  in  order  to  enable  technologies  to  be  used  seamlessly,  but  respect  for 
spectrum  as  a  national  asset  is  required.  Delays  in  availability  of  spectrum  and 
fragmentation between conditions of use in different Member Stated were noted. Some 
respondents  promoted  a  stronger  role  of  the  Commission.  Some  respondents  disagreed 
and stressed the national character of spectrum policy. 

As  regards  spectrum  management,  the  regulatory  community  encompassing  both 
BEREC  and  RSPG  was  of  the  view  that  the  EU  already  benefits  from  substantial 
coordination  and  harmonisation  processes,  and  no  further  EU-level  coordination 
procedures  are  necessary.  However,  RSPG  showed  openness  to  a  peer-review 
mechanism as regards spectrum assignment. 

guidance.  Most 

As  regards  the  need  for  binding  guidance  on  certain  aspects  of  assignment  procedures 
and  conditions,  there  was  a  split  between  regulators  and  (mainly)  broadcasters  that 
preferred  a  national  approach  and  telecoms  operators  that  supported  a  certain  level  of 
issuing 
binding 
Recommendations  (Art.19  FD)  on  assignment  conditions  and/or  procedural  aspects, 
often  qualifying  it  with  basing  any  Recommendation  on  an  RSPG/RSC  process.  The 
majority  of  respondents supported the  idea  of establishing a  mechanism similar to that 
set by Article 4 of the Radio Spectrum Decision for certain key assignment parameters, 
at times pointing out the need to choose between this process and the one under Art.19 
FD. 

the  Commission 

respondents 

supported 

There  is  little  demand  for  mandatory  pan-EU  or  regional  assignments.  Most 
respondents  questioned  the  need  for  EU-wide  licences.  A  preponderance  of  answers 
viewed  assignment  as  a  national  matter.  Any  wider  geographical  scope  should  involve 
the MS with some respondents viewing it as a Council matter. 

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9.3. Annex III 

Methodology of the Support Studies 

Further to the elements described in Chapter V of the evaluation staff working document 
on  Method,  this  annex  summarises  the  methods  used  by  the  service  providers  in  the 
externalised evaluation and review support studies:  

(vi) 

(vii) 

(viii) 

Support for the preparation of the impact assessment accompanying the 
review of the regulatory framework for e-communications (SMART 
2015/0005)236 
Regulatory, in particular access, regimes for network investment models 
in Europe (SMART 2015/0002)237  
Substantive issues for review in the areas of market entry, management 
of scarce resources and general consumer issues (SMART 
2015/0003)238.  

The  study  work  ran  between  November/December  and  July/August  2016.  The  second 
and  third  study  were  particularly  relevant  for  the  current  evaluation,  as  they  were 
required to examine the functioning of the regulation areas and their impact on a set of 
key  performance  indicators,  as  explained  in  detail  below.  The  second  study  (SMART 
2015/0002)  focused  primarily  on  the  access  regulation,  while  the third  study  (SMART 
2015/0003)  covered  market  entry  provisions,  spectrum  and  numbering,  and  consumer 
issues  including  sector  specific  consumer  protection  legislation,  must  carry  and 
findability, universal service, etc. The problems identified and the options suggested for 
potentially  addressing  those  problems  served  subsequently  as  input  to  the  separate 
Impact Assessment study (SMART 2015/0005). 

SMART 2015/0002 

Access & 
Investment 

SMART 2015/0003 

Scarce resources, 
market entry & 
consumers 

SMART 
2015/0005 

Impact 
Assessment 

236 https://etendering.ted.europa.eu/cft/cft-display.html?cftId=763  
237 https://etendering.ted.europa.eu/cft/cft-display.html?cftId=729  
238 https://etendering.ted.europa.eu/cft/cft-display.html?cftId=730  

145 

 
 
         
  
                                                 
Regulatory, in particular access, regimes for network investment models in Europe 

SMART 2015/0002 

The second study focused on access regulation and analysed its impact on various end-
user outcomes, and in particular investment. The tasks of the studies are summarised in 
the figure below.  

146 

Figure 21 Summary of tasks: access regimes for network investment

146 

 
 
 
147 

The evaluation leg of the study was conducted in line with the Better Regulation Guidelines, 
gathering evidence as to the effectiveness, efficiency, coherence and EU value add of access 
regulation  -  including  stakeholder  feedback,  quantitative  assessments  (including  where 
relevant  econometrics)  and  qualitative  assessments  of  the  effects  of  different  approaches 
based on case studies.  

Furthermore,  in  view  of  delineating  future  policy  options,  business  and  regulatory  models 
were  defined  and  categorised  and  evaluated  against  Key  Performance  Indicators  (KPIs).  
Indeed,  a  cost  benefit  analysis  of  different  regulatory  approaches  associated  with  prevalent 
investment  models  is  performed.  A  central  question  is  whether  regulation  has  achieved  its 
intended objectives for end-users as well as fostering sustainable market structures. 

The following  figure  gives a characterisation of the different types of business  models with 
reference to their emphasis on service competition (open access) vs end-to-end infrastructure 
competition  (vertical  integration)  –  and  highlights  which  regulatory  themes  are  typically 
associated with these business models.  

Figure 22 Types of business model in relation to regulatory approach 

Source: WIK 

The  three  methods  of  assessment  used  are:  theoretical  and  empirical  literature,  quantitative 
analysis  (based  on  the  DAE  broadband  targets,  the  relevant  demographic,  commercial  and 
regulatory inputs and benchmark outputs) and qualitative analysis (specifically, 16 European 
and  international  case  studies,  grouping  countries  with  similar  characteristics  to  assess 
whether these provide insights on the effects of different regulatory models).  

The  effects  of  different  forms  of  regulation  and  associated business  models  on intermediate 
KPIs  such  as  infrastructure  and  service-based  competition,  investment,  sustainability, 
consistency and KPIs relating to consumer outcomes such as NGA availability, take-up, usage 
price and customer satisfaction are summarised in a Likert-type scale: 

147 

Where on the ladder?Price regulationTiming of interventionBusiness modelsStructural separationLong term capsFunctional separation/EoIVertically integrated wholesaleOpex (rental)Ex anteRisk sharingLocal/regional accessTwo-part tariffsNetwork sharing/co-investmentDuct/terminating segmentCapex (eg IRU)Ex post (dispute resolution)End-to-end infrastructure competitionNoneNoneEx post (comp law)Infra compService comp 
 
 
 
 
 
 
Figure 23 Assessing regulatory models – analytical steps 

148 

Source: WIK 

Substantive issues for review in the areas of market entry, management of scarce resources 
and general end-user issues 

SMART 2015/0003  

The third study covered an extensive number of regulation areas and evaluated in particular 
their  effectiveness  and  efficiency,  in  view  of  delineating  policy  options.  The  figure  below 
presents the tasks covered in the project     

Figure 24 Sequence and structure of tasks in the project 

Source: WIK 

148 

LiteratureSimple regressionEconometricsHypothesesKPIsAssess core linkagesSummarise effectsCost benefit analysisInterviewsCase studies - assess detailTask 0:Data gatheringTask 1: Framework for assessing market entry dynamicsTask 2: Frameworkfor assessing availability, assignment, renewal and pricing of scarce resourcesTask 3 : Frameworkfor assessing position of end-users relative to EC providers Task 4: Ex post overall performance assessment of the implementation of relevant aspects of the RFEC and extrapolation forward=====Analysis of key provisions in the regulatory frameworkTask 5: Ex ante appraisal of possible future developments, delineation of optionsIdentify the frameworkfor analysisDelineate future scenarios,identify OptionCollect the necessary dataConduct the analysis 
 
 
 
 
 
149 

The  evaluation  of  the  relevant  framework  provisions  was  based  mainly  on  qualitative 
assessments, reflecting individual observations and case studies. Findings were summarised in 
a Strengths, Weaknesses, Opportunities and Threats (SWOT) analysis.  

An  extensive  data  gathering  exercise  (based  on  literature  review  –  see  list  below,  desk 
research, structured interviews and public workshop) was followed by the evaluation of each 
regulation/thematic area, which included: 

  An analysis of technological and commercial trends relevant to the area. 
  The assessment of implementation and performance of framework, consisting of: 

o  Comparison of regulatory rules across the Member States; and 
o  Assessment of how implementation / application of rules impacts on outcomes, 

including identification of best practice and deficiencies. 

  The assessment of whether any shortcomings are related to institutional functioning.  

The  results  of  the  analysis  fed  into  an  overall  summary  assessment  (akin  to  an  ex  post 
evaluation)  of  the  functioning  of  relevant  aspects  of  the  regulatory  framework,  a  detailed 
performance  assessment  of  relevant  aspects  of  the  framework,  and  a  presentation  of  the 
results in an analysis of (SWOT). 

Generalities 

Further References 

• BEREC, Draft Report on OTT Services,  BoR (15) 142, October 2015 

•  ECORYS  NEDERLAND,  Steps  towards  a  truly  Internal  Market  for  e-communications  in 
the run-up to 2020, Study for of the European Commission, Final report, SMART 2010/0016, 
November 
https://ec.europa.eu/digital-agenda/sites/digital-
agenda/files/final_report_internal_market_ecom.pdf  

2011, 

• EUROPEAN ADDED VALUE UNIT – EUROPEAN PARLIAMENT, Mapping the Cost of 
Non-Europe, 
2015, 
http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536364/EPRS_STU%282015%2
9536364_EN.pdf    

2014-19, 

536.365, 

April 

PE 

•  LONDON  ECONOMICS,  Performance  –based  Full  Policy  Cycle  for  the  Digital  Single 
Market,  Study  for  the  European  Parliament's  Committee  on  the  Internal  Market  and 
Consumer 
2013, 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/507457/IPOL-
IMCO_ET(2013)507457_EN.pdf   

Protection 

(IMCO), 

507.457, 

October 

PE 

•  PLUM  CONSULTING,  FARNCOMBE  CONSULTING,  Challenges  and  Opportunities  of 
Broadcast-Broadband  Convergence  and  its  Impact  on  Spectrum  and  Network  Use,  SMART 
2013/0014, 
http://bookshop.europa.eu/is-bin/INTERSHOP.enfinity/WFS/EU-
Bookshop-Site/en_GB/-/EUR/ViewPublication-Start?PublicationKey=KK0114659   

2014, 

149 

 
 
 
150 

•  P.  NIHOUL,  P.  RODFORD,  EU  Electronic  Communications  Law  –  Competition  and 
Regulation  in  the  European  Telecommunications  Market,  Second  Edition,  Oxford,  Oxford 
University Press, 2011 

•  R.  QUECK,  A.  DE  STREEL,  L.  HOU,  J.  JOST,  E.  KOSTA,  "The  EU  Regulatory 
Framework  Applicable  to  Electronic  Communications",  in  L.  GARZANITI,  M.  O’REGAN 
(eds.), Garzaniti -Telecommunications, Broadcasting and the Internet – EU Competition Law 
& Regulation, Third Edition, London, Sweet & Maxwell, 2010 

•  A.  SAVIN,  J.  TRZASKOWSKI  (eds.),  Research  Handbook  on  EU  Internet  Law, 
Cheltenham, Edward Elgar, 2014 

•  J.  SCHERER,  „Electronic  Communication  Law  and  Policy  of  the  European  Union“,  in  J. 
SCHERER  (ed.),  Telecommunication  Laws  in  Europe  –  Law  and  Regulation  of  Electronic 
Communications in Europe, 6th edition, West Sussex, Bloomsbury, 2013 

• TNO, WIK, RAND, Ubiquitous Developments of the Digital Single Market, Study for the 
European Parliament's Committee on the Internal Market and Consumer Protection (IMCO), 
2013, 
PE 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/507481/IPOL-
IMCO_ET(2013)507481_EN.pdf   

507.481, 

October 

Industry,  Research  and  Energy 

• WIK, Next Generation Networks (NGN) , Study for the European Parliament's Committee 
on 
(ITRE),  PE  507.429.973,  October  2009, 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2009/429973/IPOL-
ITRE_ET(2009)429973_EN.pdf   

•  WIK,  TNO,  Over-the-Top  (OTT)  players:  Market  dynamics  and  policy  challenges,  Study 
for  the  European  Parliament's  Committee  on  the  Internal  Market  and  Consumer  Protection 
2015, 
(IMCO), 
http://www.europarl.europa.eu/RegData/etudes/STUD/2015/569979/IPOL_STU%282015%2
9569979_EN.pdf  

December 

569.979, 

PE 

•  WIK,  TNO,  RAND,  Entertainment  x.0  to  boost  broadband  deployment  ,  Study  for  the 
European  Parliament's  Committee  on  Industry,  Research  and  Energy  (ITRE),  PE  507.479, 
October 
2013, 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/507479/IPOL-
ITRE_ET%282013%29507479_EN.pdf    

• WIK, TNO, RAND, How to Build a Ubiquitous EU Digital Society, Study for the European 
Parliament's  Committee  on  Industry,  Research  and  Energy  (ITRE),  PE  518.736,  November 
2013, 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/518736/IPOL-
ITRE_ET(2013)518736_EN.pdf   

Access Regulation  

There  is  extensive  theoretical  and  empirical  literature  concerning  the  effect  of  access 
regulation on investment and consumer outcomes in broadband.  

150 

 
 
151 

At  a  high  level,  there  are  different  perspectives  regarding  the  ‘philosophy’  of  intervention, 
ranging  from  the  ‘neo-classical’  view239  which  suggests  that  market  structure  is  key  to 
determining market outcomes (thereby implying some justification for intervention in market 
structure),  through  to  the  more  sceptical  Schumpeterian  view,  which  holds  that  investment 
incentives are greater in concentrated markets because firms with market power face a lower 
risk that profits will be eroded by competition.  Proponents of this theory accept that ‘static’ 
short-term  benefits  may  be  gained  from  intervening  to  promote  competition  (such  as  lower 
prices), but claim this may be at the expense of longer term ‘dynamic’ benefits achieved in a 
free – largely unregulated – market.  

The approach towards broadband access regulation within Europe, which has been supported 
in  successive  iterations  of  the  Recommendation  on  Relevant  Markets  susceptible  to  ex  ante 
regulation240, has in general supported the neo-classical concept of regulatory intervention to 
promote competitive market structures, but has embraced the idea that access regulation could 
be  used  as  a  ‘stepping  stone’  to  infrastructure-based  competition,  following  a  theory  of  the 
‘ladder  of  investment’  originally  elaborated  by  Martin  Cave  in  a  series  of  papers241.  An 
ultimate  goal  in  this  context  could  be  the  removal  of  ex  ante  regulation  once  infrastructure 
competition develops. 

Various  empirical  analyses  have  been  conducted  to  assess  whether  the  policy  of  local  loop 
unbundling has promoted or undermined broadband outcomes. Most studies broadly support 
the role of inter-platform competition (such as cable) in supporting broadband diffusion242, 
but are mixed on the effects of LLU243.   

Because  NGA  is  still  under  development  in  many  countries,  there  is  less  data  available  to 
undertake  empirical  research.  However,  a  recent  paper  of  interest  by Cave  and  Shortall244, 
claims that a more deregulatory approach to NGA (focused only on passive access) delivers 
greater  FTTH  deployment,  than  measures  which  require  access  to  upgraded  NGA 
infrastructures  –  for  example  through  VULA  or  unbundled  fibre  access.  In  the  July  2015 

239 See for example  the ‘structure-conduct-perfornance’ paradigm Barin (1956) 
240  See  for  example  the  relationship  between  markets  3a  and  3b  Commission  Recommensation  on  relevant 
markets  (2014)  http://ec.europa.eu/digital-agenda/en/news/commission-recommendation-relevant-product-and-
service-markets-within-electronic-communications 
241See  for  instance  Cave,  M.  (2006),  Encouraging  infrastructure  competition  via  the  ladder  of  investment, 
Telecommunications Policy 30, 223-237 
242The empirical evidence suggests a positive impact of inter-platform competition on  broadband diffusion (see, 
e.g.,  Cava-Ferreruela  and  Alabau-Munoz,  2006,  Distaso,  Lupi  and  Maneti,  2006,  Höffler,  2007,  Denni  and 
Gruber,  2007,  Bouckaert,  van  Dijk  and  Verboven,  2010,  and,  most  recently,  Nardetto,  Valletti  and  Verboven, 
2013).  Briglauer,  Ecker  and  Gugler  (2013)  as  well  as  Briglauer  (2013)  have  found  a  non-linear  relationship 
between inter-network competition and broadband diffusion, Only Calzada (2013) and Gruber (2013) have both 
found no evidence for inter-platform competition accelerating broadband diffusion. 
243 Lee, Marcu and Lee (2011) have found unbundling and service-based competition to foster broadband uptake, 
Denni  and  Gruber  (2007),  Distaso,  Lupi  and  Maneti  (2006),  Cava-Ferreruela  and  Alabau-Munoz  (2006)  and 
Höffler  (2007)  found  only  small  or  insignificant  effects.  Wallsten  and  Hausladen  (2009),  Bouckaert,  van  Dijk 
and Verboven (2010) and Briglauer, Ecker and Gugler (2013) found that facilitating intra-network competition 
through  access  regulation  negatively  affects  broadband  penetration  as  it  reduces  incentives  for  broadband 
investment. Garrone and Zaccagnino (2012) find no evidence that entrants have climbed the ladder to invest in 
their  own  access  infrastructure.  Nardotto,  Valletti  and  Verboven  (2014)  find  that  unbundling  increases 
broadband  quality  and  initial  penetration,  but  not  ultimate  penetration.  Cable  increases  both  penetration  and 
quality. 
244 Shortall, Cave (2015) Communications and Strategies  

151 

 
 
                                                 
study  for  Ofcom  assessing  outcomes  in  12  EU  and  international  countries,  WIK  also  found 
that  ‘deep  passive  approaches’  support  FTTH  deployment  by  alternative  operators  thereby 
stimulating  infrastructure-based  competition  –  and  may  influence  technological  choices 
towards  FTTH  overall.  However,  we  noted  that  the  degree  of  choice  outside  dense  urban 
areas  in  countries  which  have  followed  this  approach  is  limited  (due  to  the  economic 
challenge of replicating fixed infrastructure outside dense areas), and that there was a risk that 
over  the  medium  term  the  lack  of  competitive  choice  outside  dense  zones  may  negatively 
affect  consumer  outcomes.  WIK  accordingly  suggested  that  different  approaches  may  be 
needed for different geographic areas. 

Market entry  

152 

•  G.  OBERST,  HOGAN  LOVELLS  INTERNATIONAL,  Study  on  MSS  Authorisation 
Regimes  and  Authorisations  in  the  EU  Member  States,  Study  for  of  the  European 
1, 
rev 
Commission, 
http://ec.europa.eu/information_society/newsroom/cf/dae/document.cfm?doc_id=1896    

2011/0015, 

February 

SMART 

report, 

Final 

2012 

•  OLSWANG,  MSS  Authorisation  Regimes,  Authorisations  and  Enforcement  in  the  EU 
Member States, Study for the European Commission, Final report, SMART 2013/0013, 2014,  
http://ec.europa.eu/information_society/newsroom/cf/dae/document.cfm?doc_id=6611    

Scarce resources 

• ANALYSIS MASON ESPAÑA, Spectrum Policy. Analysis of Technology Trends, Future 
Needs and Demand for Spectrum in line with Article 9 of the RSPP, Study for the European 
2013, 
Commission, 
http://ec.europa.eu/information_society/newsroom/cf/dae/document.cfm?doc_id=2881  

2012/0005, 

SMART 

report, 

Final 

•  WIK,  AEGIS  SYSTEMS,  Impact  of  Traffic  Offloading  and  Technological  Trends  on  the 
Demand  for  Wireless  Broadband  Spectrum,  Study  for  the  European  Commission,  Final 
report, 
http://bookshop.europa.eu/is-
bin/INTERSHOP.enfinity/WFS/EU-Bookshop-Site/en_GB/-/EUR/ViewPublication-
Start?PublicationKey=KK0113239 

2012/0015, 

SMART 

2013, 

End-user protection 

• F. ALLEWELDT, S. AUGENHOFER, J. KABEL, S. KARA, R. BÉTEILLE, State of play 
of  the  implementation  of  the  provisions  on  advertising  in  the  unfair  commercial  practices 
legislation,  Study  for  the  European  Parliament's  Committee  on  the  Internal  Market  and 
Consumer 
2010, 
(IMCO), 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2010/440288/IPOL-
IMCO_ET(2010)440288_EN.pdf   

Protection 

440.288, 

July 

PE 

•  F.  ALLEWELDT,  P.  ROTT,  CHR.  TWIGG-FLESNER,  S.  KARA,  Information 
Requirements  in  the  Consumer  Rights  Directive  Proposal  and  in  Other  Directives,  Briefing 
for  the  European  Parliament's  Committee  on  the  Internal  Market  and  Consumer  Protection 
2010, 
(IMCO), 

November 

451.478, 

PE 

152 

 
 
 
http://www.europarl.europa.eu/RegData/etudes/note/join/2011/451478/IPOL-
IMCO_NT(2011)451478_EN.pdf    

•  CIVIC  CONSULTING,  Misleading  Advertising  on  the  internet,  Study  for  the  European 
Parliament's  Committee  on  the  Internal  Market  and  Consumer  Protection  (IMCO),  PE 
440.289, 
2010, 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2010/440289/IPOL-
IMCO_ET(2010)440289_FR.pdf   

July 

153 

•  CIVIC  CONSULTING,  Cross-Border  Alternative  Dispute  Resolution  in  the  European 
Union, Study for the European Parliament's Committee on the Internal Market and Consumer 
Protection 
2011, 
June 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/464424/IPOL-
IMCO_ET(2011)464424_EN.pdf   

(IMCO), 

464.424, 

PE 

• CIVIC CONSULTING, Cloud Computing, Study for the European Parliament's Committee 
on  the  Internal  Market  and  Consumer  Protection  (IMCO),  PE  475.104,  May  2012, 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2012/475104/IPOL-
IMCO_ET(2012)475104_EN.pdf   

•  EUROPEAN  COMMISSION,  Code  of  EU  Online  Rights,  December  2012. 
https://ec.europa.eu/digital-agenda/sites/digital-
agenda/files/Code%20EU%20online%20rights%20EN%20final%202.pdf   

•  GALEXIA,  CHOICE,  Consumer  Protection  in  the  Communications  Industry:  Moving  to 
best practice, October 2008 (Australia) 

• G. HOWELLS, N. REICH, Extent of Harmonisation in Consumer Contract Law, Note for 
the  European  Parliament's  Committee  on  Legal  Affairs,  PE  432.728,  October  2010, 
http://www.europarl.europa.eu/RegData/etudes/note/join/2010/432728/IPOL-
JURI_NT%282010%29432728_EN.pdf   

• H. JACQUEMIN, Optimal Integration of the European Dispute Resolution Platform, Note 
for  the  European  Parliament's  Committee  on  the  Internal  Market  and  Consumer  Protection 
(IMCO), 
2012, 
475.101, 
http://www.europarl.europa.eu/RegData/etudes/note/join/2012/475101/IPOL-
IMCO_NT(2012)475101_EN.pdf   

March 

PE 

•  LONDON  ECONOMICS,  QUEEN  MARY  UNIVERSITY  OF  LONDON,  Consumer 
behaviour  in  a  digital  environment,  Study  for  the  European  Parliament's  Committee  on  the 
(IMCO),  PE  464.441,  August  2011, 
Internal  Market  and  Consumer  Protection 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/464441/IPOL-
IMCO_ET(2011)464441_EN.pdf   

• M. MACIEJEWSKI E.A., EU Mapping: Overview of IMCO Related Legislation, Study for 
the  European  Parliament's  Committee  on  the  Internal  Market  and  Consumer  Protection 
(IMCO), 
2015, 
http://www.europarl.europa.eu/RegData/etudes/STUD/2015/536317/IPOL_STU%282015%2
9536317_EN.pdf   

536.317 

March 

PE 

, 

153 

 
 
See  also  EUROPEAN  PARLIAMENT,  Interactive  EU  Mapping:  Overview  of  Internal 
Market  and  Consumer  Protection  Related  Legislation  -  Digital  Single  Market  and  e-
2015, 
Commerce, 
http://www.europarl.europa.eu/RegData/etudes/ATAG/2015/542204/IPOL_ATA%282015%2
9542204_EN.pdf   

May 

154 

•  M.  MACIEJEWSKI,  N.  FISCHER,  Y.  ROGINSKA,  Streaming  and  Online  Access  to 
Content and Services, Study for  the European Parliament's Committee on the Internal Market 
and 
2014 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2014/492435/IPOL-
IMCO_ET(2014)492435_EN.pdf  

Consumer 

Protection 

(IMCO), 

492.435, 

March 

PE 

J. S. MARCUS, Network Neutrality Revisited: Challenges and responses in the EU and in the 
U.S., Study for the European Parliament's Committee on the Internal Market and Consumer 
2014, 
Protection 
http://www.europarl.europa.eu/RegData/etudes/STUD/2014/518751/IPOL_STU(2014)51875
1_EN.pdf  

December 

(IMCO), 

518.751, 

PE 

•  O.  MARZOCCHI,  A.  BONEWIT,  Empowering  women  on  the  Internet,  In-depth-analysis 
for the European Parliament's Committee on Women Rights and Gender Equality (FEMM), 
PE 
2015, 
http://www.europarl.europa.eu/RegData/etudes/IDAN/2015/536473/IPOL_IDA%282015%29
536473_EN.pdf   

536.473, 

October 

•  H.  MICKLITZ,  G.  SARTOR,  Assessing  the  Scope  of  European  Dispute  Resolution 
Platform,  Briefing  for  the  European  Parliament's  Committee  on  the  Internal  Market  and 
Consumer 
2012, 
(IMCO), 
http://www.europarl.europa.eu/RegData/etudes/note/join/2012/475102/IPOL-
IMCO_NT(2012)475102_EN.pdf   

Protection 

475.102, 

March 

PE 

•  E.  NEWMAN,  "Consumer  Protection  and  Telecommunications",  in  I.  WALDEN  (ed.), 
Telecommunications Law and Regulation, Fourth Edition, Oxford, Oxford University Press, 
2012, p. 453 – 480. 

•  M.  SCHMIDT-KESSEL,  The  application  of  the  Consumer  Rights  Directive  to  digital 
content,  Briefing  for  the  European  Parliament's  Committee  on  the  Internal  Market  and 
2011, 
(IMCO), 
Consumer 
http://www.europarl.europa.eu/RegData/etudes/note/join/2011/451491/IPOL-
IMCO_NT(2011)451491_EN.pdf   

Protection 

451.491, 

January 

PE 

•  H.  SCHULTE-NÖLKE,  Briefing  Paper  on  the  Proposed  Consumer  Rights  Directive: 
Chapter  I  -  Definitions,  Briefing  for  the  European  Parliament's  Committee  on  the  Internal 
Market 
2010, 
http://www.europarl.europa.eu/RegData/etudes/note/join/2010/447502/IPOL-
IMCO_NT(2010)447502_EN.pdf    

447.502,  October 

and  Consumer 

Protection 

(IMCO), 

PE 

•  R.  STEVENS,  Regulation  and  consumer  protection  in  a  converging  environment,  ITU  – 
Telecommunication Development Sector, March 2013 

154 

 
 
155 

• TRANS EUROPE EXPERTS, Briefing Paper on the Proposed Consumer Rights Directive: 
Consumer  Rights  concerning  Contract  Terms:  Chapter  V,  Briefing  for  the  European 
Parliament's  Committee  on  the  Internal  Market  and  Consumer  Protection  (IMCO),  PE 
447.503, 
2010, 
http://www.europarl.europa.eu/RegData/etudes/note/join/2010/447503/IPOL-
IMCO_NT(2010)447503_EN.pdf   

October 

•  UNIVERSITY  OF  OSNABRÜCK,  KOZMINSKI  UNIVERSITY,  Discrimination  of 
Consumers in the Digital Single Market, Study for the European Parliament's Committee on 
the  Internal  Market  and  Consumer  Protection  (IMCO),  PE  507.456,  November  2013, 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/507456/IPOL-
IMCO_ET(2013)507456_EN.pdf   

•  WIK,  TNO,  RAND,  Network  Neutrality:  Challenges  and  responses  in  the  EU  and  in  the 
U.S., Study for the European Parliament's Committee on the Internal Market and Consumer 
Protection 
2011, 
May 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2011/457369/IPOL-
IMCO_ET(2011)457369_FR.pdf    

(IMCO), 

457.369, 

PE 

•  X,  Compilation  of  Briefing  Papers  on  Consumer  Vulnerability,  Study  for  the  European 
Parliament's  Committee  on  the  Internal  Market  and  Consumer  Protection  (IMCO),  PE 
2012, 
475.082, 
http://www.europarl.europa.eu/RegData/etudes/etudes/join/2012/475082/IPOL-
IMCO_ET(2012)475082_EN.pdf 

February 

155 

 
 
 
 
 
 
 
156 

9.4. Annex IV    

Legislation covered & correspondence with regulation areas 

Instruments included within the scope of the evaluation 

-  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), OJ L 108, 24.4.2002, p. 33, as amended;  

-  Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 
the  authorisation  of  electronic  communications  networks  and  services 

on 
(Authorisation Directive), OJ L 108, 24.4.2002, p. 21,  as amended; 

-  Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 
on  access  to,  and  interconnection  of,  electronic  communications  networks  and 
associated facilities (Access Directive), OJ L 108, 24.4.2002, p. 7, as amended;  

-  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 
on universal service and users' rights relating to electronic communications networks 
and services (Universal Service Directive), OJ L 108, 24.4.2002, p. 51, as amended;  
-  Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 
November  2009  establishing  the  Body  of  European  Regulators  for  Electronic 
Communications  (BEREC)  and  the  Office  (BEREC  Regulation),  OJ  L  337, 
18.12.2009, p. 1;  

-  Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 
2002  on  a  regulatory  framework  for  radio  spectrum  policy  in  the  European 
Community (Radio Spectrum Decision) OJ L 108, 24.4.2002, p. 1; 

-  Commission  Decision  2002/622/EC  of  26  July  2002  establishing  a  Radio  Spectrum 

Policy Group (RSPG) OJ L 198 27.7.2002, p. 49, as amended;   

-  Decision No 243/2012/EU of the European Parliament and of the Council of 14 March 
2012 establishing a multiannual radio spectrum policy programme (RSPP),  OJ L 81, 
21.3.2012, p. 7;  

-  Commission  Recommendation  of  9  October  2014  on  relevant  product  and  service 
markets within the electronic communications sector susceptible to ex ante regulation 
in  accordance  with  Directive  2002/21/EC  of  the  European  Parliament  and  of  the 
Council on a common regulatory framework for electronic communications networks 
and services (2014/710/EU), OJ L 295, 11.10.2014, p. 79; 

-  Commission  Recommendation  of  20  September  2010  on  regulated  access  to  Next 

Generation Access Networks (NGA)  (2010/572/EU), OJ L, 25.9.2010, p. 35; 

-  Commission  Recommendation  of  11 September  2013  on  consistent  non-
discrimination  obligations  and  costing  methodologies  to  promote  competition  and 
enhance the broadband investment environment (2013/466/EU) OJ L 251, 21.9.2013, 
p. 13;   

-  Commission Recommendation of 7 May 2009 on the Regulatory Treatment of Fixed 
and Mobile Termination Rates in the EU (2009/396/EC), OJ L 124, 20.5.2009, p. 67  

156 

 
 
Instruments excluded from the scope of the evaluation 

157 

communications 

-  Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 
concerning  the  processing  of  personal  data  and  the  protection  of  privacy  in  the 
electronic 
electronic 
communications),  OJ L 201, 31.7.2002, p. 37 [part of a parallel evaluation process of 
the  general  data  protection  regulation,  see 
subsequent 
https://ec.europa.eu/digital-single-market/en/news/public-consultation-evaluation-
and-review-eprivacy-directive] 

(Directive  on  privacy 

the  review  of 

sector 

and 

to 

-  Regulation  (EU)  2015/2120  of  the  European  Parliament  and  of  the  Council  of  25 
November 2015 laying down measures concerning open internet access and amending 
Directive  2002/22/EC  on  universal  service  and  users’  rights  relating  to  electronic 
communications networks and services and Regulation (EU) No 531/2012 on roaming 
on public mobile communications networks within the Union (TSM Regulation), OJ L 
310, 26.11.2015, p. 1 [entered into force on 30 April 2016]; 

-  Regulation  (EC)  no  717/2007  of  the  European  Parliament  and  of  the  Council  of  27 
June  2007  on  roaming  on  public  mobile  telephone  networks  within  the  Community 
and  amending  Directive  2002/21/EC  (Roaming  Regulation),  OJ  L  171,  29.6.2007, 
p.32 [addressed via Regulation 2015/2120]; 

-  Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 
on  measures  to  reduce  the  cost  of  deploying  high-speed  electronic  communications 
networks, OJ L 155, 23.5.2014, p. 1 [transposition ongoing, generally applicable as of 
1 July 2016];  

-  Commission Decision of 10 October 2011 on modalities for coordinated application of 
the  rules  on  enforcement  with  regard  to  mobile  satellite  services  (MSS)  pursuant  to 
Article  9(3)  of  Decision  No 626/2008/EC  of  the  European  Parliament  and  of  the 
Council (notified under document C(2011) 7001) (2011/667), OJ L 265, 11.10.2011, 
p. 25 [under implementation, rights of use granted in general for 18 years]. 

Overview of the main provisions corresponding to regulation areas  

Regulation 
Area 
Access  

Corresponding Provisions  

Framework Directive 
Art. 7: consolidating the internal market for electronic communications  
Art. 7a: procedure for consistent application of remedies 
Art. 7b: implementing provisions 
Art. 12: co-location & facility sharing 
Art. 14: undertakings with significant market power  
Art. 15: procedure for the identification and definition of markets 
Art. 16: market analysis procedure 
Art. 19: harmonisation procedure 

Access Directive 
Art. 5: powers of NRA in relation to access & interconnection 
Art. 6 – 13: obligations on operators and market review procedures 

157 

 
 
 
158 

Spectrum  

Framework Directive 
Art. 8a: strategic planning and coordination 
Art. 9: management of radio frequencies 
Art. 9a: restrictions on existing rights 
Art. 9b: transfer or lease of individual rights to use radiofrequencies 

Authorisation Directive 
Art. 5: rights of use and numbers 
Art. 6: conditions attached to rights of use 
Art. 7 – procedure for limiting the number of rights of use to be granted for 
radio frequencies 
Art. 8: harmonised assignment of radio frequencies 
Art 12; administrative charges 
Art 13: fees for rights of use and rights to install facilities 
Art. 14: amendment of rights and obligations 
Annex to the Authorisation Directive 
Framework Directive 
Art. 10: numbering, naming and addressing 

Numbers 

Authorisation Directive 
Art. 5: rights of use for numbers 
Art. 6: conditions attached to rights of use 
Art 12; administrative charges 
Art 13: fees for rights of use and rights to install facilities 
Annex to the Authorisation Directive 

Universal Service Directive 
Art. 27, 27a: European telephone access codes 

Authorisation  Framework Directive 

Art. 9a: review of restrictions on existing rights. 

Authorisation Directive 
Art.3 general authorisation 
Art.4: Minimum list of rights 
Art. 6: Conditions attached to the general authorisation 
Art. 9: Declarations to facilitate the exercise of rights 
Art. 10: compliance with the conditions of the general authorisation 
Art 11: Information required under the general authorisation 
Art 12; administrative charges 
Art. 14: Amendment of rights and obligations 

Rights of way  Framework Directive 

Art 11: rights of way 
Art 12: co-location 

Authorisation Directive 
Art.4: Minimum list of rights 
Art. 9 Declarations to facilitate the exercise of rights 
Art. 13: fees for rights of use and rights to install facilities  

158 

 
 
 
 
 
 
 
 
159 

Standardisati
on 
End-user 
protection 
including 
European 
numbers 

Universal 
Service 

Must carry & 
findability 
Network  & 
service 
security  & 
integrity  
NRA 

BEREC 

RSPG  

Annex to the Authorisation Directive 
Framework Directive 
Art 17 – standardisation  
Authorisation Directive 
Art.  11(d):    publication  of  comparative  overviews  of  quality  and  price  of 
services for the benefit of consumers 

Universal Service Directive 
Art. 1.4: relationship with horizontal rules on consumer protection 
Art. 20: contracts 
Art. 21 + Annex II: transparency and publication of information 
Art. 22: Quality of Service 
Art.  24  +  Annex  VI:  interoperability  of  consumer  digital  television 
equipment 
Art. 26: single European emergency call number 
Art.  28:  harmonized  numbers  for  services  of  social  value,  including  the 
missing children hotline number 
Art. 29 + Annex I: provision of additional facilities 
Art. 30 + Annex I: change of providers 
Art. 33: consultation with interested parties 
Art. 34: out-of-court settlement procedure 

Access Directive 
Art.  5  (1)  (b):  access  to  the  other  facilities  on  fair,  reasonable  and  non-
discriminatory  terms  to  ensure  accessibility  to  digital  radio  and  television 
broadcasting services 
Art. 6(1) through 6(3): conditional access  
Universal Service Directive 
Art. 3 – 15: universal service obligations including social obligations  
Art. 23a: ensuring equivalence in access and choice for disabled end-users 
Art.25: telephone directory enquiry services 
Framework Directive 
Art. 31: must carry obligations 
Framework Directive 
Art. 13a Security & integrity 
Art. 13b Implementation and enforcement  

Framework Directive 
Art. 3: national regulatory authorities 
Art. 4: right of appeal 
Art. 8: policy objectives 
Art. 20 - 21: dispute resolution 
Art. 21a: penalties 
BEREC Regulation  
Framework Directive 
Art. 8: policy objectives 
RSPG Decision as amended  

159 

 
 
 
 
 
 
160 

9.5. Annex V 

Screening of the Directives  

Screening of the Framework Directive (2002/21/EC) 

This  annex  summarises  the  evaluation  of  the  provisions  of  the  Framework  Directive 
(Directive  2002/21/CE),  as  amended  by  the  Better  Regulation  Directive  (Directive 
2009/140/CE).  It  assesses  in  particular  their  relevance,  effectiveness,  efficiency,  and 
coherence245.   

Main purpose of the Framework Directive (legal basis: 95 EC (114 TFEU)) 

The main purpose of the Directive is to establish a harmonised framework for the regulation 
of  electronic  communications  networks  and  services,  associated  facilities  and  associated 
services. Together with the specific Directives (Authorisation, Access, Universal Service and 
ePrivacy), it forms the Regulatory Framework which contains the regulatory principles for the 
deployment and operation of electronic communications networks and services and forms the 
basis for the legislations of the Member States. 

Explain  below  why  only  certain  provisions  are  selected  and  others  not,  and  which  criteria 
were used to do the selection. 

A  number  of  provisions  of  the  Framework  Directive  are  procedural  provisions,  which  have 
remained largely unchanged since their enactment because they have not raised any particular 
issue over the past years, or have been amended with the 2009 review thus resolving issues 
which  had  arisen  (e.g.  Articles  5,  6,  13,  23,  24,  25).  Furthermore,  this  Directive  sets  the 
objectives  against  which  the  specific  provisions  are  assessed.  The  objectives  are  already 
evaluated in the text. 

Analysis of specific provisions 

Provisions raising issues of relevance 

Provisions 

Assessment 

of 

Definition 
transnational 
markets  

Transnational markets have never been defined so far, 
because  on  the  one  hand  roaming  is  covered  by  a 
regulation  and  on  the  other  hand  the  provision  of 
electronic  communications  services  is  closely  linked 
to  that  of  a  network  and  therefore  rather  local. 
However,  as  Electronic  Communications  Services 

Evidence 

Administrative 
the 
practice  of 
Commission 
in 
the  context  of 
Article 7 

245  The  same  analysis  has  in  addition  identified  technical  corrections  which  appear  necessary,  for  instance 
provisions  which  have  become  obsolete  (e.g.  Article  9a  on  a  review  clause  which  expired),  terms  which  are 
unclear  (e.g.  user  v  end-user),  terms  which  need  to  be  adapted  in  view  of  technical  evolution  (e.g.  network 
termination point, which refers to fixed networks rather than mobile networks). 

160 

 
 
 
                                                 
161 

Rights of way 

Standardisation 
(Article 17) 

(ECS)  are  more  and  more  competing  with  services 
unbundled  from  the  provision  of  a  network,  the 
question about the geographic scope of the markets in 
which ECS and OTTs compete, and hence of the need 
to  define  transnational  markets,  may  arise  in  future. 
The provision remains therefore relevant.  

The  6-month  deadline 
take  a  decision  on 
to 
applications for rights of way has not become obsolete 
after  the  adoption  of  Directive  2014/61/CE  (the 
Broadband  Cost  Reduction  Directive).  The  latter 
provides for a four-month default deadline for permits 
in view of the deployment of high-speed networks. In 
this  respect,  a  clarification  between  legal  'privileges' 
accorded 
to  electronic  communications  providers 
(servitude/rights  of  way)  and  permit  granting 
(Directive  2014/61/CE)  seems  necessary.  Definitions 
deadlines  and  scope  could  however  be  aligned,  in 
particular in relation to physical infrastructure. 

One  of  the  reasons  explaining  the  under-use  of  the 
standardisation  procedure  is  that  it  does  not  involve 
BEREC in the definition of a standardisation mandate 
in the area of its competence, even if the latter is in a 
better  position  than  the  Commission  to  define  the 
technical  aspects  of  the  standardisation  mandate.  The 
lack  of  implication  of  BEREC  in  the  phase  of 
definition  of the mandate  could undermine adherence 
of its members to the implementation of the mandate.  

Impact 
assessment study. 
Exchange  with 
Member States at 
COCOM 

Review studies 

Provisions raising issues of effectiveness  

Provisions 

Assessment 

Evidence 

Provisions  – 
Scope 
– 
Definitions  in 
Article 2  

Some of the definitions have raised interpretation issues 
by  the  Member  States  or  the  operators  of  the  sector 
which were ultimately referred to the Court:  

For  OTT,  cf.  the 
relevant study. 

Internal 
investigations 

The  definition  of  'Electronic  communications  service' 
has raised doubts as to the exact meaning of the words 
"normally  provided  for  remuneration",  "wholly  or 
mainly"  (e.g.  cable  providers  covered  or  not,  satellite 
providers, etc.) and "conveyance of signals". Pure Over-
The-Top  (OTT)  players  (i.e.    not  providing  ECS)  are 
excluded  from  the  scope  of  the  Directive.  With  the 
migration  of  the  networks  towards  all-IP,  the  role  of 
OTT  players  is  expected  to  be  reinforced  in  the  future. 
Already  today,  many  OTT  services  directly  compete 

161 

 
 
 
162 

with  ECS  without  being  subject  however  to  the  same 
framework,  and  therefore  without  benefitting  from  the 
same rights or abiding by the same obligations.  

the  framework, 

While  providers  of  associated  facilities  which  do  not 
provide electronic communications networks fall within 
the 
the  scope  of  application  of 
application of many provisions is limited to providers of 
electronic  communications  networks  and/or  services. 
Providers of associated facilities play an important role  
in  network  deployment,  investing  in  infrastructure 
without  being  vertically  integrated.  In  a  number  of 
Member States (UK, NL, IT) where traditional network 
operators  have  divested  their  physical  infrastructure 
(mainly  towers)  in  order  to  invest  CAPEX  on  network 
deployment,  providers  of  associated  facilities  acquire 
control  of  potentially  essential  facilities.  Being  outside 
the  scope  of  the  regulatory  framework,  they  may  be 
subject to national regulation, as is already happening in 
the Netherlands.    

NRA 
independence 
&  regulatory 
capacity 

The  exact  scope  of  the  prohibition  of  instructions  (i.e. 
whether it applies only to the tasks of ex ante regulation 
and resolution of disputes between undertakings or to all 
the tasks of the main body designated as NRA) has been 
debated in pre-litigation proceedings. At the same time, 
the  reference 
in  accordance  with 
national  constitutional  law'  is  not  entirely  clear.  As  a 
consequence,  the  provision  has  provoked  litigation  and 
would gain from more clarity. 

'supervision 

to 

As regards NRA tasks more specifically, the possibility 
of having more than one body of NRAs has led to NRAs 
of  varying  degrees  of  effectiveness  on  the  market  (as 
well as to coherence issues vis à vis BEREC functions). 
trend  of  re-
Most 
appropriation  and  transfer  of  powers  from  the  NRAs 
back to the Ministries.  

importantly, 

it  has 

to  a 

led 

Infringement 
proceeding 
against BE 

Case  law  of  the 
Court  of  justice 
(CMT 
and 
ISTAT) 

Implementation 
reports, 
case. 

CMT 

in 
the 

Market 
regulation 
view  of 
Single 
Market 
objectives 

Article 7a provides for the procedure  for the consistent 
application  of  remedies  and  establishes  a  scrutiny 
mechanism undertaken by the Commission and BEREC. 
However,  unlike  in  Article  7,  where  the  Commission 
has  a  veto  power,  regarding  remedies,  it  does  not  have 
the  power  to  oblige  NRAs  to  change  their  measures. 
Lack  of  binding  powers,  as  regards  remedies,  does  not 
allow the provision to ensure consistent and harmonised 

Second 
procedures 
MTR cases 

phase 
in 

162 

 
 
 
 
 
 
 
163 

measures throughout the single market. Any such power 
would  benefit  however  from  sufficient  guarantees  of 
respect for subsidiarity / national market specificities. 

Article  7(3)  includes  a  cross-reference  to  the  public 
consultation  of  Article  6.  It  could  be  useful  to  clarify 
that  the  exception  to  the  need  to  conduct  a  national 
public consultation in the case of Articles 7(9), 20 or 21 
does  not  apply  to  the  'European  consultation".  This  is 
important,  since  in  particular  in  the  context  of  dispute 
resolution,  a  number  of  NRAs  have  been  proceeding 
through  'regulation  by  litigation',  without  notifying  to 
the  Commission  their  measures,  with  consequences  on 
the Single Market. Moreover, the limited powers of the 
Commission  on  remedies  (in  Article  7a)  has  generated 
different  regulatory  outcomes  which  cannot  be  entirely 
explained by national specificities. 

Article 12 (co-location and facility sharing) has raised a 
number  of  interpretation  issues  with  regard  to  1)  the 
identity  of  the  authority  which  is  given  the  right  to 
impose  facility  sharing  (NRA  or  MS  or  both),  2)  the 
addressee  of  the  obligation  (any  undertaking,  EC 
providers  only,  only  if  or  irrespective  of  whether  they 
enjoy  rights  of  way  or  benefit  from  procedures  for 
expropriation),  3)  the  infrastructure  which  is  the  object 
of sharing (only the infrastructure built thanks to rights 
of  way  or  to  expropriation  or  any  infrastructure 
belonging to the operator), 4) the objective (competition 
and/or  environment,  public,  health,  security  etc.),  5) 
when  exactly  the  procedural  requirement  of  public 
consultation  applies  and,  6)  whether  or  not  cost-
orientation is permitted. In short, a variety of outcomes 
with different effects on competition have been created 
across member States.  

Article  9b  on  the  transfer  of  the  rights  of  use  has  not 
managed to achieve the existence of a secondary market 
for  spectrum,  which  would  allow  the  valuation  of  the 
spectrum by the market. More flexibility could therefore 
be pursued in the new Framework, in particular since, as 
explained,  the  users  and  uses  of  spectrum  are  expected 
to grow with a geometric progression. 

The  provision  has  served  as  a  legal  basis  for  the 
harmonisation  of  the  116  numbering  range  (missing 
children).  It  has  successfully  allowed  the  development 
of services with important social impact throughout the 
EU.  It  has  been  less  successful  however  in  promoting 

Administrative 
the 
practice  of 
in 
Commission 
the  context  of 
Article 7 

Internal 
investigations 

Internal  analysis, 
market 
entry 
study 

163 

Facility 
sharing 

Spectrum 
trading 
(Article 9b) 

Numbering 
(Article 10) 

 
 
 
 
 
164 

the  development  of  other  pan-European  services,  in 
particular via the development and promotion of an EU 
is  an  area  where  further 
numbering  code.  This 
improvement,  or  else  partial  deregulation,  could  be 
envisaged, through a more coordinated approach to key 
aspects  of  national  numbering  assignment  (extra-
territorial use) while anticipating possible future number 
scarcity. 

Penalties 21a  While in one Member State (BG) the sanctions that the 
NRA  could  impose  were  not  sufficiently  dissuasive, 
national  legislation  has  been  amended  to  provide  for 
more dissuasive sanctions.  

Internal 
investigations 

Provisions raising issues of efficiency 

Provisions 

Assessment 

- 

Market 
regulation 
tailored 
administrative 
burden 
on 
companies: 

of 

Timing 
market 
regulation 
16(6) 

Article 
19 
harmonisation 
procedures 

The  NRAs  have  not  made  much  use  of  the  possibility 
offered  by  Article  15(3)  to  define  different  geographic 
markets,  in  particular  in  the  areas  where  a  competitive 
infrastructure  (cable  or  fibre)  is  present.  Still,  this 
possibility could ensure that remedies only apply in the 
areas  where  there  is  a  real  competitive  issue.  The 
provision 
its 
importance can be reasonably expected to grow with the 
deployment of alternative infrastructure. 

less  relevant  and 

is  however  not 

Evidence 

Commission  & 
NRA 
administrative 
practice 
Article 7 

under 

While  the  introduction  with  the  2009  review  of  a 
periodic timeframe for market reviews (3 years from the 
adoption of previous measures in the same market, or 2 
years from a Commission recommendation on relevant 
markets)  has  contributed  to  the  consistent  deregulation 
of  electronic  communications  markets  in  the  Member 
States,  the  three  years  deadline  has  proved  to  be  rigid 
for  the  termination  markets  which  are  not  subject  to 
many  changes  and  for  the  broadband  markets,  where 
more  stable  regulatory  conditions  could  facilitate 
private investment. 

Internal 
investigations 

Public 
consultation 

reviews  or  numbering, 

This  provision  aims  at  ensuring  that  when  NRAs 
diverge  in  the  implementation  of  regulatory  tasks 
regarding  market 
the 
Commission  may  take  binding  measures  (decisions)  to 
impose  a  harmonised  approach.  This  procedure  was 
rapid 
established 
harmonisation  than  normal  infringement  proceedings 
could  achieve.  However,  when  it  comes  to  issues  of 

to  ensure  a  more 

in  order 

Access 
Study 

(& 

IA) 

164 

 
 
 
165 

Spectrum 
management 
(Article 9) 

two  years  after 

market review, the Commission may only take binding 
measures 
it  has  adopted  a 
recommendation. This delay for the adoption of binding 
measures  makes 
the  procedure  cumbersome,  and 
negatively affects its efficiency. 

Article  9  on  the  management  of  radio  frequencies, 
technology  and  service  neutrality  has  been  a  valuable 
tool  for  the  Commission  for  the  liberalisation  of  the 
sector. In general terms, it has achieved its objective of 
ensuring  that  spectrum  is  allocated  and  assigned  under 
objective  transparent  and  non-discriminatory  criteria, 
and has allowed the development of innovative services 
using  the  radio-spectrum.  Nevertheless,  it  will  need  to 
be  adapted  to  the  exponential  growth  in  the  use  of 
spectrum,  a  result  of  the  development  of  innovative 
services such as the internet of things.  

Study (tbc) 

Provisions raising issues of coherence  

Provisions 

Assessment 

Evidence 

Article 4 

Regarding  the  right  to  appeal,  there  is  no  explicit 
reassurance  that  the  appeal  body  is  independent  of  the 
parties  but  also  from  any  other  body.  The  issue  is  not 
theoretical and arose from recent case law (C-222/13). 

The  issue  results 
from  recent  case 
law C-222/13 

Article 8a 

While  the  obligation  provided  in  the  last  paragraph  of 
the  Article  (to  collect  information  on  appeals)  could 
serve inter alia to enable the creation of an inventory of 
case-law,  the  object  of  the  obligation  is  currently 
statistical  information  and  not  the  actual  text  of  the 
judgments.  Furthermore,  obligations  are  to  be  sent  on 
request and not periodically.   

Article  8a  does  not  clarify  the  relationship  between 
spectrum used for electronic communications and other 
spectrum  uses  (military,  public  protection  and  disaster 
relief,  intelligent  transport  system).  While  this  was  not 
necessary at the time the current framework entered into 
force,  such  clarification  would  be  needed  in  the  future 
framework to the extent that it would have implications 
on  policy  objectives  including  avoidance  of  harmful 
interference  (e.g.  ensuring  that  public  protection  and 
disaster relief (PPDR), utilities and intelligent transport 
services  (ITS)  for  road  and  rail  could  be  provided  to  a 
improved  commercial  electronic 
certain  extent  by 
importantly, 
communication 

services).  More 

Study  2012/018, 
Final report 

Internal analysis 

165 

 
 
 
 
 
166 

competencies 
interference issues need to be clarified. 

in 

terms  of  solving  cross  sector 

Internal  analysis, 
Berec guidelines 

Cross  border 
dispute 
resolution 
(Article 21) 

In  case  of  a  dispute  with  cross-border  elements,  the 
2009  review  added  the  possibility  for  each  one  of  the 
competent  NRAs  to  consult  BEREC,  with  the  view  to 
ensuring a consistent resolution of the dispute. BEREC 
has developped internal Guidelines for the provision of 
its  opinion.  However,  in  case  of  cross-border  dispute, 
there is no legal obligation for the NRA, but only a right 
to  request  the  opinion  of  BEREC.  Such  lack  of  legal 
obligation  and 
the  cumbersome  procedure  which 
involves at least two NRAs and BEREC undermines the 
usefuleness of the procedure. Furthermore, the scope of 
the  procedure  is  unclear,  with  specific  regard  to 
spectrum  interference  disputes  or  numbering  or  other 
tasks which may be assigned to bodies of NRAs which 
do not participate in BEREC. 

Screening of the Authorisation Directive (2002/20/EC)] 

This  annex  summarises  the  evaluation  of  the  provisions  of  the  Authorisation  Directive 
(Directive  2002/20/CE),  as  amended  by  the  Better  Regulation  Directive  (Directive 
2009/140/CE).  It  assesses  in  particular  their  relevance,  effectiveness,  efficiency,  and 
coherence246.   

Main purpose of the Authorisation Directive (legal basis: 95 EC (114 TFEU)) 

The aim of this Directive  is to implement an internal market for electronic  communications 
networks and services through the harmonisation and simplification of authorisation rules and 
conditions in order to facilitate their provision throughout the Community.  

The purpose of the overview below is to analyse the provisions of the Authorisation Directive 
and  to  identify  provisions  which  may  have  become  obsolete  or  have  raised  implementation 
issues in practice. 

A  number  of  provisions  lack  clarity  in  their  wording  and  have  caused  problems  with  its 
practical application (e.g. Article Articles 3, 12).  The analysis also identifies provisions that 

246  The  same  analysis  has  in  addition  identified  technical  corrections  which  appear  necessary,  for  instance 
provisions  which  have  become  obsolete  (e.g.  Article  9a  on  a  review  clause  which  expired),  terms  which  are 
unclear  (e.g.  user  v  end-userend-user),  terms  which  need  to  be  adapted  in  view  of  technical  evolution  (e.g. 
network termination point, which refers to fixed networks rather than mobile networks). 

166 

 
 
 
 
 
                                                 
should be brought in line with recent case law of the ECJ (e.g.Article 12, 13). The analysis 
takes  particular  account  of  effectiveness  in  the  light  of  the  objective  of  achieving  a  true 
internal market bearing in mind the provision of cross-border services. 

Analysis of specific provisions 

Provisions raising issues of relevance 

Provisions 

Assessment 

Evidence 

167 

Article 8 

Harmonised 
assignment  of 
radio 
frequencies 

Article 9 

Declarations  to 
the 
facilitate 
exercise 
of 
rights  to  install 
and 
facilities 
rights 
of 
interconnection 

This  provision  has  never  been  applied.  There  was  an 
attempt  to  modify  it  during  2009  review,  but  this  was 
rejected by the Council. 

Monitoring 
activity  of 
Commission 

the 

Also,  the  reference  to  selection  "in  accordance  with 
international  agreements",  like  the  similar  reference  in 
Article 9 FD, is not sufficiently clear in order to ensure 
that  compliance  with  international  coordination  is  a 
criterion for assessment of spectrum use and assignment 
pursuant to EU law (LS has doubts on this at this stage, 
being EU not part of ITU agreements).  

The provision had limited relevance at the moment, but 
through 
is 
acknowledgement of notification by MS.  

implemented 

currently 

easily 

BoR(11)56247 

In  line  with  the  current  practice  for  implementing 
Article 3, there is room for additional clarification that 
this acknowledgment has no authorising value (activity 
should be possible upon notification)  

Provisions raising issues of effectiveness  

Provisions  Assessment 

Evidence 

Definitions 

Article 2 

The  definition  of  general  authorisations 
leaves margins to Member States to define 
general 
"specific 

sub-types" 

of 

Public consultations, 

BoR(11)56248 

247  BEREC  report  on  the  impact  of  administrative  requirements  on  the  provision  of  transnational  business 
electronic communication services, pages 13 and 16. 

167 

 
 
 
 
 
 
 
 
                                                 
168 

Implementation 
regulatory 
electronic 
Report 2015, 2014 

of 
framework 

the  EU 
for 
communications 

Case  C-475/12 
establishment requirement. 

  UPC 

on 

BoR(11)56249BoR(11)55250 

Public 
particular Q192) 

consultation 

(see 

in 

authorisation  regime  with  corresponding 
conditions  applicable.  This  can  be  seen  as 
particularly  problematic  in  the  light  of 
achieving  a  truly  Digital  Single  Market  in 
the EU. 

3 

Article 
General 
authorisatio
n 
of 
electronic 
communica
tions 
networks 
and 
services  

While Article 3 has generally improved the 
working of authorisation regimes, in recent 
years there has been some uncertainty over 
the  application  of  the  national  notification 
requirements  and 
the 
their 
general  authorisation  systems  in  several 
Member  States  (in  particular  with  respect 
to  certain  establishment  and  guarantee 
requirements). The legal issues in this area 
were  also  clarified  by  a  preliminary  ruling 
of the European Court of Justice in 2014. 

impact  on 

Also,  second  subparagraph  of  Article  3(2) 
introduced in 2009 proved to be of limited 
or  no  utility,  although  it  was  intended  to 
facilitate  the  provision  and  deployment  of 
services  delivered  without  any  specific 
infrastructure  (e.g.  VoIP).  There  is  an  
issue  of  multiple  general  authorisation 
regimes  applicable  which  currently 
in 
particular  affects  the  provision  of  some 
kind  of  services  (cross-border  services  to 
business;  satellite  services)  and  could 
increasingly 
(mobile 
involve 
services, VOIP, etc…).  

others 

Although  the  formalities  for  registration 
are  indeed  limited  by  current  EU  law  and 
are not a major issue, their application has 
raised  problems  in  several  MS  and  by 
stakeholders,  in  particular  those  operating 
mainly across borders. 

More  generally,  the  existence  of  multiple 

248  BEREC  Report  on  the  impact  of  administrative  requirements  on  the  provision  of  transnational  business 
electronic communication services, page 17 
249  BEREC  Report  on  the  impact  of  administrative  requirements  on  the  provision  of  transnational  business 
electronic communication services, page 16 and, with specific regard to Article 3(2) second subpara, page 20 
250 BEREC Report on the public call for contributions on possible existing legal and administrative barriers with 
reference to the provision of electronic communications services for the business segment, page 4 with regard to 
existing inconsistencies resulting in the public consultation 

168 

 
 
 
 
 
                                                                                                                                                         
169 

On  the  specific  the  persisting 
obstacles  of  general  authorisation 
regime, see also references to the 
Annex. 

BoR(11)55251 

For  an  overview  of  different 
participation/assessment 
criteria/conditions  applied  across 
EU  see  also  Radio  Spectrum 
on 
Policy  Group 
Assignment and Pricing Methods, 
RSPG09-298252 

Report 

public  consultation,  in  particular 
Q193253 

Monitoring 
Commission 

activity 

of 

the 

Article 6 

Conditions 
attached  to 
the  general 
authorisatio
n and to the 
of 
rights 
for 
use 
radio 
frequencies 

Article 17 

Existing 
authorisatio
ns 

general  authorisation  regimes  within  the 
EU implies in fact that a multiple range of 
conditions are applicable (in particular end-
users'  rules)  that  limit  the  provision  of 
standardised products at EU level.  

(paragraph  1)  provided 

Article  6  provides  significant  safeguards 
against  over-regulation  at  national  level. 
However,  the  maximum  harmonisation  of 
conditions 
in 
conjunction  with  the  Annex  however  still 
leaves  MS  discretion  on  which  conditions 
among the annex shall apply and above all 
on the more detailed specification of these 
conditions. 

implementation  of 

The  effective 
the 
principle  which  prohibits  duplication  of 
conditions (paragraph 3) is often overruled 
by NRAs in practice. 

A  systematic  general  review  of  individual 
rights  of  use  pursuant  to  para  1  has  not 
been explicitly carried out by MS in 2011, 
probably in view of the fact that excluding 
to  Article  9a  FD 
modification  due 
(tech./service neutrality), the other changes 
have  been  very  limited  and    modification 
of  primary 
the  2009 
amendments  have  been  sufficient  to  fulfil 
the  objective.  Consequently  para  2  and  3 
did not have specific application. 

transposing 

law 

Annex A 

The following items included in the Annex 
may  represent  an  obstacle  to  cross-border 
provision,  in  particular,  specific  kinds  of 

BoR(11)55254 

251 Concerning in particular different conditions applicable in particular for similar specific services, in particular 
with cross-border relevance, but also evidence of establishment requirements reported by stakeholders  
252http://rspg-spectrum.eu/wp-
content/uploads/2013/05/rspg09_298_final_report_assignment_pricing_122009.pdf    
253 Out of 55 replies, 36 agreed that current general authorisation conditions are still a barrier to provide services 
across borders 
254 BEREC report on the public call for contributions on possible existing legal and administrative barriers with 
reference to the provision of electronic communications services for the business segment, pages 6-7 

169 

 
 
 
                                                 
170 

services (in particular B2B):  

Q193 public consultation 

- Administrative charges (A2) 

- Reporting obligations (A10) 

- Consumer Protection Obligations (A8) 

- Legal interception (A11) 

- Data protection (A11) 

- Emergency numbers (in particular 112) 

Annex B 

in 

the  course  of 
Commitments  made 
competitive  and  comparative  selection 
procedure (B7) triggered the adoption of a 
wide 
assignment 
requirements/conditions  for  use  beyond 
those identified in the Annex itself. 

range  of  different 

Radio  Spectrum  Policy  Group 
Report 
and 
Pricing Methods, RSPG09-298255  

on  Assignment 

Provisions raising issues of efficiency 

Provisions 

Assessment 

Evidence 

Article 5(2) 

Rights  of  use 
for 
radio 
frequencies 
and numbers 

Article  5(2)  is  the  main  legal  basis  for  scrutiny  of 
assignment  procedures.  The 
the 
implementation  of  technological  neutrality  to  existing 
rights  of  use  has  not  yet  been  materialised,  but  its 
increased 
implementation 
harmonisation. 

full  effects  of 

benefit 

could 

from 

The  ex  post  use  of  the  specific  justification/derogation 
to  Article  5(2)  on  spectrum  rights  for 
pursuant 
broadcasting  has  often  led  to  infringement  action  once 
rights  of  use  were  already  assigned,  with  limited 
possibility of scrutiny of the justification put forward. 

Public 
consultations; 

pre-

Infringements 
and 
infringement 
on 
actions 
assignments 
of 
rights  of  use  in 
several  MS  (IT, 
BG,  FR,  SI),  see 
Implementation 
Reports 
2012-2015 

years 

255 Available at http://rspg-spectrum.eu/wp-
content/uploads/2013/05/rspg09_298_final_report_assignment_pricing_122009.pdf  

170 

 
 
 
 
 
 
 
 
                                                 
171 

Article 7 

Procedure  for 
the 
limiting 
number 
of 
rights of use to 
be  granted  for 
radio 
frequencies 

The  amendments  introduced  in  2009  with  a  view  to 
applying  the  same  regime  to  new  rights  of  use  and 
extension  of  old  ones,  were  not  clear  and  created  legal 
uncertainty  (in  particular  in  the  event  of  expiry  in  the 
short term).  

The requirement of market assessment (in particular, but 
not only in case of renewal) also is not defined precisely 
enough; in practice it has been difficult to distinguish to 
what  extent  the  effective  market  demand  has  been 
consulted  and  the  level  of  seriousness  of  claims  for 
market demand. 

Pre-infringement 
and/or 
actions 
on 
uncertainty 
renewal 
procedures 
carried  out  in  IE, 
RO, and EL  

in 

Difficulties 
assessing 
effective  market 
demand for RSPP 
bands  due  to  be 
assigned  in  2012 
(approx.  30%  of 
not 
spectrum 
see 
assigned, 
2016 
EDPR 
Chapter 1) 

Article 12 

Administrative 
charges 

Case  law  has  significantly  limited  the  scope  of  the 
current  notion  of  "administrative  charges"  (C-485/11), 
which  is  linked  only  to  the  charges  levied  pursuant  to 
the general authorisation procedure and not also because 
of  the  fact  that  an  operator  is  authorised.  The  current 
wording  is  not  sufficiently  clear  and  not  fully  aligned 
with  the  Court  of  Justice  case  law  (since  the  Court  of 
Justice 
the  procedure  of  general 
authorisation; at least it should be linked to the general 
authorisation as such). Other attempts to further extend 
the  wording  may  trigger  the  taxation  legal  basis  of  the 
Treaty.256 

linked 

to 

it 

The  effective  implementation  of  Para  2  is  not  always 
fully  ensured  in  MS  where  different  administrative 
charges  are  levied  by  different  bodies  or  when  NRAs 
are  competent  for  different  sectors  (in  particular  with 
regard  to  costs  sustained  for  the  regulation  of  ECSN). 
There  have  been  a  number  of  cases  where 
the 
Commission  has  had  to  look  into  how  the  systems  of 
administrative charges are being implemented in various 
Member States.  

for 

EU 

Implementation 
the 
of 
regulatory 
framework 
electronic 
communications 
2015, 
Report 
2014, 
several 
court  cases  (FR 
tax,  ES  tax,  HU 
tax,  preliminary 
ruling on MT and 
end-users 
IT 
taxes).  

The results of the 
SMART 
study 
also 
2015/003 
confirm 
that 
authorisation  fees 
may 
be 
inappropriately 
in 
high 

some 

256 In total, six infringement cases were registered in NIF specifically concerning the application of Article 12 
Authorisation Directive since its entry into force in 2002. These cases are only a fraction of overall problematic 
cases  dealt  in  the  context  of  the  pre-infringement  procedure  at  service  level,  where  clarifications  and/or 
amendments  by  national  authorities  may  already  address  the  concern  raised  by  the  services  and  prevent  the 
opening of an infringement procedure. 

171 

 
 
                                                 
172 

There  have  been  infringement  cases  based  on  the 
Framework  tackling  the  high  administrative  charges 
imposed  on  small  undertakings  which  could  be 
considered  as  a  barrier  to  market  entry  for  those 
undertakings. 

States 
Member 
especially 
for 
small  enterprises 
or new entrants.   

BEREC  Report 
on  the  impact  of 
administrative 
requirements  on 
the  provision  of 
transnational 
business 
electronic 
communications 
services  of    2011 
(BoR(11)56) 

Article 13 

Fees  for  rights 
of  use 
and 
rights to install 
facilities  

Article 14 

Amendment of 
rights 
and 
obligations 

A number of cases  have been  taken with  regard to  this 
provision,  and  the  wording  of  the  rulings  is  not  fully 
aligned with the Court of Justice case law. 

In  2014  the  Commission  services  also  investigated  a 
number of cases concerning the amendment of rights of 
use, in particular those linked to spectrum resources. 

From  a  systematic  point  of  view  a  distinction  could  be 
drawn between amendments to the general authorisation 
to  a  normative  regime 
(that  entails  amendments 
generally applicable) and those to the rights of use.  

In  the  former  case,  indeed,  an  "agreement"  with  the 
"holder"  is  virtually  not  possible,  since  the  general 
authorisation 
is  not  strictly  speaking  "assigned". 
Changes  to  the  general  authorisation,  indeed,  concern 
changes to rules (either primary or secondary), therefore 
public  consultation,  plus  the  usual  requirements  of 
general  authorisation  conditions  pursuant  to  Article  6, 
should suffice.  

Stricter  requirements  should  be  maintained  in  case  of 
changes  to  rights  of  use,  in  particular  where  they  have 
been  assigned  pursuant 
to  competitive/comparative 
procedures,  in  order  to  avoid  circumvention  of  these 
procedures  by  changes  to  the  object  of  the  right 
tendered.  Also,  where  long-term/undefined  duration 

EU 

for 

Implementation 
of 
the 
regulatory 
framework 
electronic 
communications 
Report 
Court cases  

2015, 

EU 

for 

Implementation 
of 
the 
regulatory 
framework 
electronic 
communications 
Report 2014 

172 

 
 
173 

rights  are  at  stake,  harmonisation  of  withdrawal 
conditions  and/or  procedure  could  be  envisaged  (for 
example, the mandatory use-or-lose it clause). 

Some  guidance  on  minor  changes could  be  considered, 
so to ensure that such a change does not have an impact 
on third parties and does not grant unfair advantages to 
the rights holder. 

Provisions raising issues of coherence  

Provisions 

Assessment 

Evidence 

Article 6 

Conditions 
attached  to  the 
general 
authorisation 
and 
the 
to 
rights  of  use 
radio 
for 
frequencies 

Article 15 

Publication  of 
information 

Annex 

interrelationship  of 

The 
the  numerus  clausus  of 
conditions provided here with the symmetric regulation 
applicable  pursuant  to  article  12  of  the  Framework 
Directive is not clear. 

Coordination  of  para  2  with 
the  corresponding 
provisions of Directive 2014/61/EU (article 7) could be 
envisaged  

Point  A3:  consistency  with  changes  to  the  Access 
Directive 

Point  A4:  This  provision  is  complementary  to  art  28 
USD  (cross-border  access).  COM  had  reservations  on: 
"where  technically  and  economically  feasible"  at  the 
time  of  the  previous  review.  This  expression  has  been 
used in the past to escape the obligation.  

Point  A5: 
inconsistency  with  Article  6(3)  AuD 
(insufficient clarity on relation between the inclusion of 
urban planning and the principle of separation of sector-
specific and general conditions; if maintained, it should 
be made clear in order not to jeopardise the principle) 

Point  A6:  coordination  with  any  change  proposed  to 
Must Carry 

173 

 
 
 
 
 
 
 
 
Point A9 and A19 coordination with rules on NN 

Screening of the Access Directive (2002/19/EC)  

174 

annex 

summarises 

This 
the  
evaluation 
Access  Directive  (Directive  2002/21/CE),  as  amended  by  the  Better  Regulation  Directive 
(Directive  2009/140/CE).  It  assesses  in  particular  their  relevance,  effectiveness,  efficiency, 
and coherence257.   

provisions 

the 

the 

of 

of 

Main purpose of the Access Directive (legal basis: 95 EC (114 TFEU)) 

The  Access  Directive  grants  telecom  operators  rights  and  obligations  to  negotiate 
interconnection  of  their  networks  with  the  view  to  ensure  interoperability  of  services 
throughout  the  EU  in  the  interest  of  end-users.  The  Directive  also  empowers  national 
regulatory authorities (NRAs) to impose adequate regulatory obligations in the areas of access 
and interconnection to operators enjoying a significant market power with the view to secure 
the  access  to  end-users  by  third-party  operators  with  the  far  reaching  objectives  to  ensure 
competition  in  the  market  and  contribute  to  the  achievement  of  the  single  market.  The 
Directive  also  empowers  NRAs  to  impose  access  and  interconnection  obligations  without 
prejudice to the finding of market power with the view to ensure end-to-end connectivity and 
service interoperability. 

Under specific circumstances, the Access Directive also empowers NRAs to impose, as a last 
resort remedy, the functional separation of a vertically integrated operator. 

Last but not least, the Access Directive sets out conditions for access to digital television and 
radio service broadcast with the view to ensure cultural diversity and media pluralism in the 
EU.  

Analysis of specific provisions 

Provisions raising issues of relevance 

Provisions 

Assessment 

Evidence258 

Article 1  

The objectives mentioned at the end of para.  1 

257  The  same  analysis  has  in  addition  identified  technical  corrections  which  appear  necessary,  for  instance 
provisions  which  have  become  obsolete  (e.g.  Article  9a  on  a  review  clause  which  expired),  terms  which  are 
unclear  (e.g.  user  v  end-userend-user),  terms  which  need  to  be  adapted  in  view  of  technical  evolution  (e.g. 
network termination point, which refers to fixed networks rather than mobile networks). 
258 Much evidence can be found in the Access study (Regulatory, in particular access, regimes for network 
investment models in Europe (SMART 2015/0002)) 

174 

 
 
 
 
 
 
                                                 
175 

NRAs 

NRAs 

Scope and Aim 

should  be  aligned  with  the  changes  made  to 
Article 8 FWD. 

Article 2 

Definitions 

Article 4 

Rights and 
obligations for 
undertakings 

Several  definitions  need  to  be  updated  to  take 
into  account 
technological  change.  This 
concerns  the  definition  of  access  in  para.  2, 
which should reflect the move towards network 
virtualization, and the definition of local loop in 
para.  (e),  which  refers  in  its  current  version  to 
circuits,  a  legacy  from  PSTN  which  is  not 
adapted to 'all-IP' networks. 

the  validity  of 

The  transition  to  all  IP  networks  whereby  a 
voice call is routed through packet-switched IP 
mode  has  modified  the  market  circumstances 
and  questions 
the  current 
approach  –  as  communication  links  can  be  set 
up  through  a  multitude  of  routes  via  different 
networks, with the exception of the terminating 
network which cannot be substituted. The same 
goes  with  the  advent  of  Voice  over  IP  (VoIP) 
which  progressively  replaces  circuit-switched 
voice telephony. 

As a monopoly on network termination is likely 
to  remain  a  reality  for  at  least  10-15  years 
(reinforced  by  the  use  of  numbering  plans), 
some  form  of  safeguard  with  regards 
to 
interconnection may be justified. 

Article 5 

Powers and 
responsibilities of 
the national 

regulatory 
authorities with 
regard to access 
and 

interconnection 

is 

that  symmetrical 

Use  of  Art.  5  by  NRAs  has  been  relatively 
modest,  but  has  been  used  as  a  basis  for 
symmetrical regulation (i.e. not based on SMP). 
remedies 
A  concern 
imposed  on  access  networks  that  apply  across 
the  board  and  do  not  consider  economic 
principles  such  as  market  power  may  lead  to 
a 
and  may 
overregulation 
disproportionate  burden  on  new  entrants  and 
small-scale providers.  

represent 

However,  further  consideration  must  be  given 
to  whether  this  kind  of  provision  may  be 
helpful,  provided  the  right  safeguards  against 

175 

 
 
 
 
 
 
 
 
 
 
 
176 

NRAs 

NRAs 

to 

for 

example 

overregulation  are  in  place,  in  circumstances 
where  significant  market  power  is  difficult  to 
prove,  but  market  dynamics  still  warrant 
intervention in order for the market to function 
effectively, 
guarantee 
interoperability  beyond  access  networks  or 
access to non-replicable bottlenecks such as in-
house  wiring.  In  this  sense,  it  would  be 
beneficial for the provisions to present  a better 
explanation of the application of this article and 
of  Article  12(3)  of  the  Framework  Directive, 
and  of 
their  relationship  with  SMP-based 
obligations. 

As  the  number  of  networks,  often  local  in 
character, proliferates in at least some Member 
States, it would be helpful to specify that NRAs 
should  foresee  guidance  and  procedures  for 
ensuring  interconnection  and  interoperability 
which are realistically accessible for SMEs. 

As shown by the increased relevance of virtual 
access products in several access markets, there 
is  a  clear  need  to  update  the  list  of  wholesale 
access  products  in  Annex  II  to  reflect  market 
developments and technological change, as it is 
currently limited to physical LLU, on the basis 
of the provisions set out in para. 5. (Regulatory 
replaced, 
procedure  with  scrutiny 
presumably by a delegated act.) 

to  be 

(1) 

and 

change 

account 

The whole article would need an update to take 
developments, 
market 
into 
technological 
regulatory 
developments.  These  concerns  in  particular  in 
carrier 
references 
para. 
selection/preselection  which 
outdated, 
reference  to  virtual  networks  which  should  be 
modernized 
into  account  virtual 
unbundling  and  bitstream,  intelligent  networks 
which  is  outdated  and  in  para.(2)  reference  to 
capacity  which  is  geared  towards  low  capacity 
DSL technology. 

to 
is 

take 

to 

Article 9 

Obligation of 
transparency 

Article 12 

Obligations of 
access to, and use 
of, specific 

network facilities 

Moreover, in 2(f),  the article calls on NRAs to 
consider the provision of pan-European services 
when  imposing  access.  This  should  be  aligned 
with  the  approach  taken  on  trans-national 
markets. 

176 

 
 
177 

The  content  of  this  annex  does  not  cover  the 
most relevant access products and is outdated in 
light  of  market  developments  and 
the 
technological change. 

NRAs 

Annex II 

Minimum list of 
items to be included 
in a reference offer 
for wholesale 
network 
infrastructure 
access (SMP) 

Provisions raising issues of effectiveness  

Provisions 

Assessment 

Evidence 

Article 9 

Obligation 
transparency 

of 

Article 10 
Non-
discrimination 

9(2) 

includes 

transparency 

the 
Article 
publication of a reference offer as 
a 
obligation. 
Reference  offers  are  a  key 
instrument  for  granting  access 
and  have  become  very  lengthy 
and 
sophisticated  documents, 
which  shape  the  nature  of  access 
beyond mere transparency.  

The  experience  has  shown  that, 
absent  of  the  appropriate  level  of 
technical harmonisation, guidance 
and coordination, there is a strong 
degree  of  heterogeneity  in  the 
definition  of  refeference  offers,  a 
situation which raises obtsacles to 
the  internal  market  and  hinders 
competition,  inhibiting  economic 
efficiency  (also  due  to  longer 
time to markets). 

The  main  limit  in  the  application 
of this article has been its general 
nature.  If  imposed  without  any 
further 
specification,  a  non-
discrimination  obligation  can  be 
the 
relatively  meaningless  as 
proof 
burden 
that 
of 
taking  place 
is 
discrimination 
would  be  on  the  access  seeker 
claiming 
is  a 
significant  imbalance  in  the  level 
of  information  between  access 
provider  and  access  seeker.  The 
Commission  has  recommended 

it,  and 

there 

Commission'  study  on  access  and 
interoperability standards conducted for 
the  Commission  by  WIK  and  TNO 
released 
(SMART 
in  Dec.  2015 
2014/0023) 

Impact Assessment of the 
Recommendation on cost accounting 
and non-discrimination, 11.9.2013 
SWD(2013) 329 final 

177 

 
 
 
178 

principles  for  implementing  this 
obligation  in  the  Costing  and 
Non-discrimination 
recommendation,  but  this  is  a 
non-binding  document.  For  this 
reason, 
it  would  be  worth 
considering taking on board some 
wording  on  equivalence  from  the 
Recommendation. 

Provisions raising issues of efficiency 

Provisions 

Assessment 

Evidence 

Article 5 
Powers 
and 
responsibilities 
of the national 
regulatory 
authorities with 
to 
regard 
access and 
interconnection 

Article  5  doesn't  provide  the  same 
level  of  detail  as  other  remedies 
imposed on the basis of SMP. 

NRAs,  Public  consultation,  BEREC 
Opinion 

In  the  context  of  competing  NGA 
infrastructure  deployment  by  several 
operators  and  fewer  markets  where 
SMP  will  be  found,  the  potential 
increase 
imposition  of 
symmetric remedies based on Article 
5,  would 
require  more  detailed 
provisions  in  order  to  ensure  the 
appropriate  guidance  for  NRAs  and 
legal certainty for investors. 

the 

in 

In addition some coherence with Art. 
12(3)  of  the  Framework  Dir.  would 
be  required,  as 
is 
relatively  similar  (i.e.  independent  of 
a finding of SMP) 

the  approach 

Article  9(2)  includes  the  publication 
of a reference offer as a transparency 
obligation. Reference offers are a key 
instrument  for  granting  access  and 
have  become  very 
lengthy  and 
sophisticated 
documents,  which 
shape  the  nature  of  access  beyond 
mere  transparency.  Experience  has 
shown  that  they  are  very  long  to 
define, 
appropriate 
guidance and technical harmonisation 

absent 

of 

Commission'  study  on  access  and 
interoperability  standards  conducted 
for  the  Commission  by  WIK  and 
TNO released in Dec. 2015 (SMART 
2014/0023) 

178 

 
 
 
 
 
NRAs 

179 

Article  13b 
voluntary 
separation 
by 
vertically 
integrated 
undertaking 

a 

that  are 

The  provisions 
rather 
complex  could  be  a  hindrance  to 
vertical  separation  proposals  coming 
to  fruition.  In  particular,  overlapping 
between 
the 
proposals  by  the  vertically  integrated 
undertaking  and  the  ongoing  market 
analysis  review  by  the  NRA  could 
result in red tape and delays. 

the  assessment  of 

Provisions raising issues of coherence  

Provisions 

Assessment 

Article 8 
Imposition, 
amendment 
or 
withdrawal of 
obligations 

The  principles  of  appropriateness,  proportionality  and 
fitness for purpose in light of the chosen objectives have 
been assessed as valid principles.  

Consistency  with  any  changes  made  to  FWD,  AutD, 
USD  and  the  ePrivacy  Dir.  will  have  to  be  ensured,  as 
well  as  with  FTA  agreements  concluded  with  our 
international trade partners (TTIP, Tisa, Japan, China). 

Evidence 

NRAs  

NRAs 

NRAs 

Article 
12 
Obligations of 
access  to,  and 
use 
of, 
specific 
network 
facilities 

The reference to access to ducts has proved to be useful, 
e.g.  for  the  approach  to  NGA  investment  in  FR,  ES. 
However,  one  should  assess  to  what  extent  it  could  be 
relevant to include some of the new remedies set out in 
the  Directive  on  Cost  Reduction  (2014/61/EC)  e.g.  in-
building  wiring  –  bearing  in  mind  any  changes  would 
have to be made to the scope of the framework. 

Article 13 
Price  control 
and 
cost 
accounting 
obligations 

The 
link  between  price  control  obligations  and 
incentives to invest (for the regulated operator as well as 
for  challengers  and  alternative  infrastructure  operators, 
whose pricing decisions are affected by regulated prices 
present  in  the  market).  If  a  need  is  identified  to  codify 
the principles set out in the Recommendation on costing 
and  non-discrimination,  in  order  to  increase  legal 
certainty and strengthen their enforcement, this might be 
the article where this would be appropriate. 

Article 
Committee 

14 

The  comitology  provisions  should  be  adapted  to  the 
Lisbon Treaty. 

179 

 
 
 
 
 
 
180 

Screening of the Universal Service Directive (2002/22/EC)  

This  annex  summarises  the  evaluation  of  the  provisions  of  the  Universal  Service  Directive 
(Directive  2002/22/EC),  as  amended  by 
the  Citizen's  Rights  Directive  (Directive 
2009/136/EC).  It  assesses  in  particular  their  relevance,  effectiveness,  efficiency,  and 
coherence259.   

Main purpose of the Universal Service Directive (legal basis: 95 EC (114 TFEU))  

This  Directive  establishes  the  rights  of  end-users  and  the  corresponding  obligations  of 
undertakings providing publicly available electronic communications networks and services. 
With  regard  to  ensuring  provision  of  universal  service  within  an  environment  of  open  and 
competitive markets, this Directive defines the minimum set of services of specified quality to 
which  all  end-users  have  access,  at  an  affordable  price  in  the  light  of  specific  national 
conditions, without distorting competition. This Directive also sets out obligations with regard 
to the provision of certain mandatory services. 

Analysis of specific provisions 

Provisions raising issues of relevance 

Provisions 

Assessment 

Evidence 

Article 1 
(Subject-
matter and 
scope) 

Technological  changes have  changed the relevance  of 
the  elements  under  the  scope  of  universal  service 
obligations as defined in Art 1. Furthermore, since the 
early  stages  of  liberalisation  the  market  conditions 
have  drastically  evolved,  with  more  competition  and 
choice available to consumers.  

et 

al. 
Tech4i2 
"Review 
(2016) 
of  the  scope  of 
universal  service, 
SMART 
2014/0011" 

In the last decade, there have been 31 withdrawals of a 
universal  service  obligation  (USO)  in  relation  to  an 
entire component of the universal service in a Member 
State, meaning reliance on the market to  supply these 
components. 

Article 4 
(Provision of 
access at a 

While  functional  internet  access  is  included  in  the 
scope  of  US  the  exact  definition  of  it  is  left  for 
is  not 
Member  States.  Therefore  broadband 

EC  questionnaire 
the 
on 
implementation 
and application of 
the 
universal 
service  provisions 
(BEREC, 2015) 

Public 
consultation 

Public 
consultation 

259  The  same  analysis  has  in  addition  identified  technical  corrections  which  appear  necessary,  for  instance 
provisions which have become obsolete, terms which need to be adapted in view of technical evolution (e.g. 
Quality of Service Parameters in ANNEX III of the Universal Service Directive, which includes for example 
reference to public pay-telephones). 

180 

 
 
                                                 
fixed location 
and provision 
of telephone 
services) 

Art 5 
(Directory 
enquiry 
services and 
directories) 

included  within 

automatically 
the 
universal  service,  but  Member  States  are  nevertheless 
entitled  to  so  include  it  if  national  circumstances  so 
impose.  

the  scope  of 

181 

in 

instrument 

A  vast  majority  of  respondents 
the  public 
consultation  insist  that  this  flexibility  for  Member 
States  is  still  relevant  and  should  be  kept.  A  vast 
majority  of  respondents  believe  that  USO  is  not  the 
to  foster  high-speed  broadband 
right 
incentivising 
tools 
policy 
deployment.  Other 
commercial  investment  should  be  used  first,  coupled 
with  targeted  state  aid  using  pro-competitive  and 
technologically neutral project models in specific areas 
of market failure. 

The  relevance  of  directory  services  in  the  universal 
service scope has diminished. 

Many  Member  States  have  relaxed  USO  in  regard  of 
directory  enquiry  services  and  directories  provided  in 
Article 5 since the services are satisfactorily provided 
by  the  market  (eleven  of  the  31  withdrawals  of  USO 
concerned the comprehensive directory enquiry service 
and nine were comprehensive directories). 

Member  States  without  a  universal  service  obligation 
regarding  comprehensive  directories  or  directory 
enquiry  services  noted  the  availability  of  commercial 
competitors in the market. 

et 

al. 
Tech4i2 
"Review 
(2016) 
of  the  scope  of 
universal  service, 
SMART 
2014/0011" 

EC  questionnaire 
on 
the 
implementation 
and application of 
the 
universal 
service  provisions 
(BEREC, 2015) 

Availability  of  data  for  provision  of  directories  is 
safeguarded by Art 25 USD. 

Public 
consultation 

On  the  basis  of  the  public  consultation,  there  is  a 
general 
comprehensive 
directories  and  directory  enquiry  services  from  the 
scope of the USO.  

agreement 

exclude 

to 

Article 6 
(Public 
payphones) 

The  relevance  of  public  payphones  in  the  universal 
service scope has diminished.  

Eight  of  the  31  withdrawals  of  universal  service 
obligations concerned public payphones. 

The  Article  6  inclusion  of  public  payphones  in  the 
scope of the universal service has lost relevance in the 
context  of  market  and  technological  developments 
(e.g. the non-use by 88% of the population across the 

et 

Tech4i2 
al. 
"Review 
(2016) 
of  the  scope  of 
universal  service, 
SMART 
2014/0011" 

EC  questionnaire 
the 
on 
implementation 
and application of 

181 

 
 
 
EU28 regarding public payphones). 

In the public consultation, there is a general agreement 
to  exclude  public  payphones  from  the  scope  of  the 
USO.  

Article 9 
(Affordability 
of tariffs) 

The scope of the provision of affordable  tariffs might 
need to be reconsidered, because affordable broadband 
has  become  of  crucial  importance  to  society  and  the 
wider economy. 

and 

costs 

decreasing 

Despite  declining  hardware  costs  for  computers  and 
tablets 
broadband 
subscriptions  some  users  are  still  not  able  to  afford  a 
broadband  package.  On  average  in  EU28  Member 
States,  24  per  cent  of  households  without  an  internet 
subscription,  believe  that  subscriptions  cost  are  too 
high to subscribe.   

for 

Provisions raising issues of effectiveness  

Provisions 

Assessment 

Article 1 
(Subject-
matter and 
scope) 

Article 4 
(Provision of 
access at a 
fixed location 
and provision 
of telephone 

The  results  of  the  public  consultation  show  that  the 
majority  of  Member  States  and  regulators  agree  that 
universal  service  has  been  effective  in  safeguarding 
end-users from the risk of social exclusion while most 
of the operators see little or no impact. Proponents of 
universal  service  argue  that  the  availability  of  certain 
basic  services  increased  and  that  services  became 
affordable and accessible to  all. Opponents  claim that 
(1)  the  universal  service  regime  has  become  rapidly 
out-of-date (2) the high level of competition for fixed 
and mobile services ensures the affordability of tariffs 
and not the regulatory obligation.  

While  it  can  be  concluded  that  the  provisions  of 
Article  4  have  been  effective 
the 
availability  of  PATS,  it  is  important  to  note  that  the 
availability  today  is  to  a  large  extent  ensured  by  the 
market  and  irrespective  of  any  universal  service 
fixed 
obligation.  Subscriptions 

for  and  use  of 

in  ensuring 

182 

the 
universal 
service  provisions 
(BEREC, 2015) 

Special 
Eurobarometer 
Report 414, 2014, 
p.153. 

Public 
consultation 

et 

Tech4i2 
al. 
(2016)  Review  of 
of 
scope 
the 
universal  service, 
SMART 
2014/0011    

Evidence 

Public 
consultation 

Note: no EU level 
data  exists  on  the 
incremental 
of 
increase 
coverage 
or 
services  use  due 
the  universal 
to 
service obligation  

Digital  Agenda 
Scoreboard 2015; 

et 

al. 
Tech4i2 
(2016)  Review  of 
of 
scope 
the 

182 

 
 
  
 
services) 

telephony  have  been  dropping, 
comparison to mobile telephony. 

in  particular  by 

universal  service, 
SMART 
2014/0011    

183 

For  data  communications  at  data  rates  that  are 
sufficient to permit functional Internet access included 
in  Article  4,  fixed  connections  are  nearly  universally 
available and used by a majority of citizens across the 
EU  and  in  each  individual  Member  State.  The  basic 
fixed broadband coverage in the EU stands at 97% of 
homes, with an average take-up rate of 72%. However 
there  are  still  differences  between  Member  States 
when examining availability and affordability of fixed 
broadband across urban and rural averages.  

The  future  effectiveness  of  directory  services  in  the 
universal service scope needs to be clarified. 

 Directories  and  directory  inquiry  services  are  used 
regularly but their provision does not seem linked to a 
universal  service  obligation.  Availability  of  the  same 
information 
further 
competitive alternative.  

through 

internet 

is  a 

the 

et 

al. 
Tech4i2 
(2016)  Review  of 
the 
of 
scope 
universal  service, 
SMART 
2014/0011, 
38-42. 

pp. 

The  future  effectiveness  of  directory  services  in  the 
universal service scope needs to be clarified. 

While the universal service provisions have proven to 
be  effective  in  the  past  in  addressing  basic  needs  for 
citizens,  the  use  of  public  payphones,  is  in  a  steep 
decline. 

Eurobarometer 
survey 
(public 
payphones) 

in  2014 

Although  the  current  regulatory  framework  has  been 
effective in achieving protection of disabled end-users 
(art 7) and equivalence in access and choice (art 23a), 
it  has  to  be  recognized  that  the  wording  of  these 
provisions  is  quite  vague  and  does  not  seem  to  be 
sufficient,  given  the  divergences  in  implementing  the 
provisions  regarding  disabled  users  among  Member 
States. 

According  to  the  draft  BEREC  report  “Update  of  the 
report  on  equivalent  access  and  choice  for  disabled 
end-users”  only  14  out  of  28  National  Regulatory 
the  actions  concerning 
limit 
Authorities  (NRAs) 
to  Universal  Service 
persons  with  disabilities 
that  additional 
Obligations,  while  13  answered 

Relevant 
stakeholders 
the 
consultation; 

in 
public 

report 
BEREC 
the 
“Update  of 
report 
on 
equivalent  access 
for 
and  choice 
disabled 
end-
users”260; 

The 
Assessing 

study 
and 

Art 5 
(Directory 
enquiry 
services and 
directories) 

Article 6 
(Public 
payphones) 

Article 7 
(Measures for 
disabled end-
users), 

Article 23a 
(Ensuring 
equivalence in 
access and 
choice for 
disabled end-
users) 

260 

http://berec.europa.eu/eng/document_register/subject_matter/berec/download/0/5418-update-of-the-report-

on-equivalent-acces_0.pdf     

183 

 
 
                                                 
184 

measures  were  adopted  for  other  services  and  service 
providers. The most common actions include: address 
directory  enquiry  services  and  directories,  equipment, 
public  pay  telephones,  information,  special  tariffs, 
accessible  billing,  emergency  services  and  relay 
services. 

e-

Promoting 
Accessibility 
(known  as  MeAC 
3)261 

In  the  BEREC  report  eighteen  out  of  28  respondents 
do  consider  it  appropriate  that  NRAs  have  a  role  in 
encouraging the availability of terminal equipment. 

According to the BEREC report only thirteen out of 28 
electronic 
respondents  do  have 
terminal 
communications 
equipment  available  for  disabled  end-users  in  their 
country (AT, BE,  BG, CY, CZ, FI, DE, IT, MT, NO, 
NL, SE and the UK). 

features  or 

subsidies 

services, 

for 

Article 21 

(Transparency 
and 
publication  of 
information) 

In view of all this evidence the wording of Article 23a 
USD  should  be  strengthened.  Additionally, 
the 
protection  of  disabled  end-users  would  be  more 
effective  if  obligations  related  to  disabled  end-users 
would be also incorporated in horizontal law.  

Article  21  of  the  Universal  Service  Directive  sets  out 
rules  as  regards 
transparent, 
comparable  adequate  and  up-to  date  information. 
NRAs  also  should  encourage 
the  provision  of 
comparable information. 

the  publication  of 

In addition to these measures, a number of respondents 
to the public consultation asserted that, there is further 
a  need  to  introduce  certain  transparency  measures  for 
communications  services.  Certain  respondents  see 
independent  price  and  quality  comparison  tools  as 
useful and advocate to introduce measures for control 
of consumption. 

Public 
consultation 
(Q125):  BEUC 
and 
other 
consumer 
organisations, 
consumer 
authorities, 
Member  States, 
trade  unions,  and 
a  smaller  number 
operators 
of 
supported 
additional 
user 
communications 
services  

end-
for 

rights 

Article 26 
(Emergency 
services and 
the single 

The  USD  provides  that  access  to  emergency  services 
through the European emergency number 112 must be 
ensured  all  over  the  EU.  Evidence  suggests  that  this 
provision has generally speaking been rather effective 

report, 

COCOM 
Public 
consultation 

261 source: http://ec.europa.eu/digital-agenda/en/news/study-assessing-and-promoting-e-accessibility         

184 

 
 
 
 
 
 
 
                                                 
European 
emergency call 
number) 

(112 COCOM report).  

Awareness of the 112 number has increased slowly but 
constantly.  At  the  same  time,  there  is  still  room  for 
improvement  on  awareness.  According  to  a  recent 
Eurobarometer  survey  (Special  438,  dated  November 
2015), 61% of the respondents would call 112 if they 
had  an  emergency  in  their  country,  while  46% 
correctly  identified  112  as  the  single  number  to  call 
throughout the EU. 

185 

Difficulties  in  implementation  have  been  nevertheless 
reported, 
lack  of 
the 
implementation  of  caller 
location  accuracy  and 
reliability requirements by Member States. 

including 

relation 

to 

in 

The  caller  location  accuracy  criteria  adopted  by 
Member States are below the accuracy of the currently 
available  technical  solutions,  leading  to  a  situation 
where  in  spite  of  technical  developments  in  this  area, 
the  effectiveness  of  the  call  remained  the  same  in  the 
past 10 years. Hence the caller location accuracy is cell 
ID that could range from 50m to 30 km – not suitable 
for 
new 
deployable 
including 
technologies  are  available, 
handset  based  location  that  could  radically  improve 
caller location accuracy (to 20-25 m).  

intervention.  Meanwhile 

emergency 

In  terms  of  accessibility,  equivalence  of  access  is 
ensured  with  SMS  communication.  However,  more 
evolved video and messaging systems (Web Real Time 
Communication)  are  currently  available  to  ensure  a 
higher  level  of  equivalence  of  access  to  emergency 
services. 262 

Article 30 
(Facilitating 
change of 
provider) 

Article  30  USD  sets  out  rules  as  regards  porting  of 
regarding  maximum  duration  of 
numbers  and 
contracts.  While  these  rules  proved  to  be  effective 
(based  on  latest  Eurobarometer  results  as  regards 
switching),  there  are  additional  issues  that  arise  when 
to  be 
changing  providers,  which  would  need 
facilitate 
considered 

revising 

rules 

that 

the 

in 

Special 
Eurobarometer 
438  (page  76-95), 
Public 
consultation 
(Q125):  BEUC 
other 
and 

262 eCall legislation on Public Safety Answering Points (PSAPs) and in-vehicle systems defines an emergency 
call service based on the 112 EU emergency number as defined  in Article 26 of the USD (see DECISION No 
585/2014/EU;  Regulation  (EU)  2015/758).  The  eCall  service  is  based  on  the  adoption  and  implementation  of 
specific  eCall  standards  by  PSAPs,  car  manufacturers  and  mobile  network  operators.  Hence  the  support  of 
mobile network operators for the correct routing of eCall is necessary for the effective functioning of the eCall 
service. 

185 

 
 
                                                 
 
186 

consumer 
organisations, 
consumer 
authorities, 
Member  States, 
trade  unions,  and 
a  smaller  number 
of 
operators 
supported 
additional 
user 
communications 
services  

end-
for 

rights 

switching;  ensuring  the  continuity  of  the  service, 
switching  bundles,  the  reimbursement  of  subsidized 
equipment,  receiving-operator-led  switching  process, 
measures  to  facilitate  switching  of  internet  access 
services 
(i.e.  measures  going  beyond  number 
portability). 

Article  30(6)  also  stipulates  that  conditions  and 
procedures for contract termination should not act as a 
disincentive against changing service provider. As this 
formulation  is  quite  vague,  there  are  issues  around 
contract  termination  that  are  not  explicitly  addressed, 
and  which  require  further  consideration:  automatic 
roll-over of contracts (tacit extension), subscription to 
additional  services  that  prolong  the  initial  contract 
period, the notice period and termination fees. 

In  conclusion the present  provision  is not  adequate  to 
respond  to  the  need  of  the  sector  and  therefore  it 
should be modified/extended. 

During the transposition, the wording of Article 30 (4) 
has proven unclear as to the starting point of the one-
day requirement, thus resulting divergent transposition 
in Member States that rather focuses on the time when 
the  service  is  inaccessible,  instead  of  the  time  for 
technical  process  of  porting.  This  was  last  raised  by 
CEPT  experts  at 
the  EC-CEPT  Workshop  on 
Advanced  Numbering  Systems  in  DSM  held  in 
Brussels on 7 December 2015. 

Article  27  – 
European 
Telephony 
Access codes 

The  provisions  on  ETNS  are  not  applicable  anymore. 
The  USD  provision  in  question  specifies  a  concrete 
prefix  that  is  no  longer  available  (recalled  by  ITU), 
and  the  Commission  is  not  in  a  position  to  directly 
retrieve it. This article should be repealed. 

Provisions raising issues of efficiency 

Provisions 

Assessment 

Evidence 

3 

Article 
(Availability 
of  universal 
service) 

Since  the  introduction  of  universal  service,  only  few 
Member  States  have  calculated  the  USO  net  cost.  The 
final  amount  of  the  calculated  USO  net  cost  varies 
significantly from country to country, depending mainly 
of  the  country  size  and  on  the  USO  scope.  In  five 
countries, the USO net cost is less than 1 million euros. 
In four countries, the USO net cost is between 1 and 10 

EC  questionnaire 
on 
the 
implementation 
and application of 
universal 
the 
service  provisions 
(BEREC,  2015) 

186 

 
 
 
 
187 

million euros. While, in 4 countries the USO the net cost 
exceeded 20 million euros. 

and  SWD(2015) 
126. 

According to the public consultation the vast majority of 
Member  States  agree  that  universal  service  has  been 
significantly  or  moderately  efficient  in  safeguarding 
end-users from the risk of social exclusion. On the other 
hand,  most  of  the  electronic  communication  service 
providers  and  other  associations  see 
little  or  no 
efficiency.  

Respondents to the public consultation brought up views 
that the overall administrative burden263 and regulatory 
uncertainty  have  been  very  high.  Several  respondents 
also  noted  that  USO  puts  the  burden  of  a  social 
objective  on  the  private  sector  and  in  particular  on  the 
electronic  communications  sector  when  the  burden 
should be shared by society as a whole. 

to 

With  regard 
the  comprehensive  directory  and 
directory enquiry services the provision cost is difficult 
to estimate, but available data suggests that the relation 
between  the  cost  and  demand  is  such  as  to  enable 
commercial  provision  by  the  market.  Availability  of 
commercial  services  over  an  extended  period  of  time, 
absent of any legal obligation, would suggest sufficient 
use  to  ensure  continued  availability  in  the  market  even 
in the absence of policy intervention. 

Public 
consultation  

et 

Tech4i2 
al. 
(2016)  Review  of 
of 
scope 
the 
universal  service, 
SMART 
2014/0011. 

Maintaining public pay telephones in Art 6 of the USD 
might need to be assessed in view of the cost-benefit. 

The estimated maintenance cost of payphones in the EU 
is estimated annually over 1 billion euro – a significant 
amount considering a rather infrequent facility use (e.g. 
the non-use by 88% of the population across the EU28 
regarding public payphones). 

et 

Tech4i2 
al. 
(2016)  Review  of 
the 
of 
scope 
universal  service, 
SMART 
2014/0011. 

5 

Article 
(Directory 
enquiry 
services  and 
directories) 

Article 
(Public 
telephones) 

6 
pay 

Article 

12  The  articles  on  costing  (Art  12)  and  financing  of  the 
USO  (Art  13)  have  raised  a  number  of  interpretation 

EC  questionnaire 
the 
on 

263 Twelve European countries used competitive designation mechanisms to designate the US provider either for 
all or for part of the services encompassed within the Universal Service Obligations (USO) scope. Apart from 
some countries where there is no compensation fund in place, the most commonly found way to fund the USO 
net costs is via sectorial funding. In only a handful of countries all operators are obliged to contribute, whilst in 
the  remaining  countries  where  a  compensation  fund  exists  a  minimum  income/revenue/turnover  is  required 
regarding the operators capacity to contribute to that fund. Among the countries where operators are part of a 
funding mechanism, in three cases a ceiling was established for the operators’ contributions which is related to 
operators’  annual  revenues.  In  a  significant  number  of  countries,  the  USO  net  costs  were  calculated  at  least 
once. 

187 

 
 
 
 
                                                 
188 

implementation 
and application of 
universal 
the 
service  provisions 
(BEREC,  2015) 
and  SWD(2015) 
126. 

Public 
consultation 

(Costing) 

issues. 

Article 
(Financing) 

13 

Article  27a  - 
Harmonised 
numbers 
services 
social value 

for 
of 

Current  rules  on  compensation  of  the  net  cost  of  the 
universal  service  provision  are  complicated,  and 
designated providers cannot be sure what percentage of 
their  bidding  tender  will  be  regarded  as  net  cost  and 
whether NRAs consider it an unfair burden. The current 
way  of  financing  mainly  by 
is  an 
administrative and financial burden for the sector, which 
can  cause  market  distortions  and  uncertainty  in  the 
market. 

industry 

the 

the  public 
The  vast  majority  of  respondents 
consultation 
and 
(including 
associations)  agree  that  the  most  appropriate  and 
equitable way of financing the universal service, would 
be through public funds.  

all  major  players 

to 

The  main  provisions  governing  116  numbers  are 
enshrined  in  the  116  Decision  (2007/116/EC).  In 
addition  to  that,  Article  27(a)  USD  requires  Member 
States  to  promote  116  numbers,  ensure  that  disabled 
end-users  are  able  to  access  the  116  numbers;  ensure 
that citizens are adequately informed of 116 services, (in 
particular  targeting  persons  travelling  in  the  EU)  and 
finally,  provides  that  citizens  have  access  to  a  missing 
children hotline under the number 116000. 

Currently  some  of  the  numbers  are  not  taken  up  at  all, 
while  the  total  numbering  range  (consisting  of  five 
numbers)  is  used  at  about  50%.  The  last  remaining  
Member  State  implemented  its  116000  service  only  in 
June 2016, which was required by Article 27a (4) USD. 
Also, the Eurobarometer studies carried out in 2011 and 
2012  revealed  very  low  awareness,  among  citizens, 
despite the manifest interest about the services provided 
under  the  116  number.  These  results  suggest  that  the 
provision  in  Article  27a  has  not  been  very  effective, 
which raises the need to repeal. 

), 

the 
COCOM 

Statistics  on  take 
are  available  on 
the  Commission's 
116  web  page  ( 
https://ec.europa.e
u/digital-single-
market/en/eu-
rules-116#the-
implementation-
of-the-116-
numbers 
latest 
Working 
Document  on the 
implementation 
on 
the  reserved 
‘116’  numbers  – 
as of 1 November 
was 
2015 
published 
in 
November  2015 
next 
the 
and 
report 
COCOM16-05  is 
due 
be 
to 
published  by  end 
of May 

Eurobarometer 

188 

 
 
 
189 

studies carried out 
in  2011264  and 
2012265 

Public 
consultation,  112 
COCOM report 

Evidence 

Public 
consultation, 
SMART 
2015/0003  study,   
assessment by the 
Commission 
services 

26 

Article 
(Emergency 
services  and 
the 
single 
European 
emergency 
call  number 
(112)) 

The  obligations  regarding  access  to  112,  especially  the 
provisions on caller location information, are considered 
a public interest service accepted by network operators. 
However, to the extent that qualitative requirements are 
attached  to  the  obligation  (caller  location,  equivalent 
access)  it  is  more  burdensome  for  network  operators. 
For this reason, several operators claim that the financial 
burden  should  lay  on  the  public  budget  or  be  shared 
amongst  all  communications  providers.  On  the  other 
hand,  end-users,  Public  Safety  Answering  Points  and 
stakeholders (EENA) are complaining about the lack of 
caller  location  accuracy  in  such  an  important  operation 
like  the  emergency  service.  While  the  costs  of  reliable 
network  based  location  technologies  are  deemed  to  be 
high,  handset  based 
technologies  –  not  currently 
mandated in EU legislation – might constitute a cheaper 
solution  to  enhance  the  existing  network  based  caller 
location. In terms of accessibility for disabled end-users, 
more  effective  web  based  solutions  could  ensure  a 
higher  equivalence  of  access 
the  currently 
implemented SMS solutions. 

than 

Provisions raising issues of coherence  

Provisions 

Assessment 

Article 
(Contracts) 

20 

on 

law 

rules 

consumer 

The  Consumer  Rights  Directive  (CRD)  contains 
general 
information 
requirements  in  contracts  (Article  5  CRD)  covering 
aspects  such  as:  characteristics  of  services,  identity  of 
trader,  tariffs  or  contract  duration;  or  requirements  for 
distance contracts (Article 6 CRD). These general rules 
overlap  with  certain  general  provisions  on contracts  in 
Article  20  Universal  Service  Directive  while  more 
communications-specific 
for 
instance  on  specific  minimum  service  quality  levels 
offered,  are  not  covered  by 
the  CRD.  General 
information requirements on contracts are also included 

contract  provisions, 

264  For  Special  Eurobarometer  367  on  Harmonised  numbers  for  services  of  social  value  -116  please  see: 

http://ec.europa.eu/public_opinion/archives/eb_special_379_360_en.htm#367 

265  For  Special  Eurobarometer  387  on  harmonised  numbers  for  services  of  social  value  –  116,  please  see: 

http://ec.europa.eu/public_opinion/archives/ebs/ebs_387_en.pdf  

189 

 
 
 
                                                 
20 

Article 
(Contracts), 
Article 
21 
(Transparency 
and 
publication  of 
information), 
Article 
(Quality 
service) 

22 
of 

34 

Article 
(Out-of-court 
dispute 
resolution) 

in  the  Services  Directive,  e-Commerce  Directive, 
Unfair  Commercial  Services  Directive,  however  none 
of  these  include  sector-specific  information  that  is 
crucial for end-users. 

The  recently  adopted  Regulation  (EU)  2015/2120  on 
open internet access and roaming includes transparency 
measures  regarding  contracts  which  include  internet 
access services in Article 4. These overlap with certain 
parts  of Article  20 USD on contracts (e.g. information 
on traffic shaping), of Article 21 USD on transparency 
and  publication  of  information  (e.g.  information  on 
conditions limiting access to and/or use of services and 
traffic  shaping). 
information  on 
applications  and 
Additionally,  both  Article  5  of  the  Regulation  and 
Article  22(3)  USD  empower  NRAs  to  set  minimum 
quality of service requirements. 

to 

solve 

(Directive 

2013/11/EU 

their  disputes 

Out-of-court  complaint  and  redress  mechanisms  are 
provided  for  under  Article  34  Universal  Service 
Directive,  while  a  recourse  to  similar  mechanisms  is 
provided  by  the  legislation  on  Alternative  and  Online 
Dispute  Resolution 
on 
consumer  ADR  ("ADR  Directive")  and  Regulation 
(“ODR 
(EU)  No  524/2013  on  consumer  ODR 
Regulation”).  The  ADR  Directive  enables  EU 
consumers 
concerning 
contractual  obligations  stemming  from  sales  contracts 
including 
or  service  contracts  with  EU 
electronic  communications  service  providers,  through 
the  intervention  of  ADR  entities  respecting  binding 
quality  requirements.  Under  the  ODR  Regulation,  the 
European  Commission  launched  in  February  2016  an 
EU-wide  online  platform 
that 
facilitates  the  online  resolution  of  contractual  disputes 
between  EU  consumers  and  traders  over  purchases 
made  online.  Online  traders  and  online  marketplaces 
are required to provide a link to the EU ODR platform 
on  their  website.  The  ADR  and  ODR  apply  to 
consumers  only,  whereas  Article  34  also  applies  to 
other end-users. 

(ODR  platform) 

traders, 

190 

Public 
consultation, 
SMART 
2015/0003  study,   
assessment by the 
Commission 
services 

Public 
consultation, 
SMART 
2015/0003  study,   
assessment by the 
Commission 
services 

190 

 
 
 
 
 
191 

9.6. Annex VI 

Screening of the BEREC Regulation [(2009/1211/EC]  

This annex summarises the evaluation of the provisions of the Regulation (EC) No 1211/2009 
of the European Parliament and the Council (BEREC Regulation). 

Main purpose of the BEREC Regulation (legal basis: 95 EC (114 TFEU)) 

The Body of European Regulators for Electronic Communications (BEREC) was established 
by the BEREC Regulation together with the BEREC Office which is an EU agency providing 
professional  and  administrative  support  to  BEREC.  BEREC  must  pursue  the  objectives 
established in Article 8 of the Framework Directive (same objectives as those of NRAs) and, 
in  particular,  ensure  a  consistent  application  of  the  EU  regulatory  framework  for  electronic 
communications  in  order  to  contribute  to  the  development  and  better  functioning  of  the 
internal market. 

The provisions below have been selected since are the most relevant to tackle a certain aspect 
of each proposed evaluation criterion, namely: relevance, effectiveness, efficiency, coherence. 

Analysis of specific provisions 

Provisions raising issues of relevance 

Provisions 

Assessment 

Art 1 

(Establishment) 

The objectives of BEREC (achievement of the internal 
market)  remain  valid  and  there  is  still  a  need  to 
maintain this intervention at EU level since significant 
bottlenecks  and  barriers  to  entry  remain  in  the 
provision  of  electronic  communications  services 
across the EU. 

Evidence 

Public 
consultation 

Art 2 

(Role 
BEREC) 

of 

The  tasks  of  BEREC  are  of  an  advisory  character 
towards  NRAs  and  the  European  Parliament,  the 
Council and the Commission, on request or on its own 
initiative, mainly through the adoption of opinions and 
reports.  The  work  carried  out  by  BEREC  and 
supported by the BEREC Office is relevant and has an 
impact on stakeholders.  

However the degree of effectiveness would depend on 
the actual implementation done at national level by the 

Public 
consultation266, 
the 
Study 
on 
Evaluation 
of 
BEREC  and  the 
BEREC  Office 
(Evaluation 
Study),267  Study 
for 
the  EP  on 
How  to  build  a 

266 Add reference  
267  Study  on 
https://ec.europa.eu/digital-single-market/en/news/study-evaluation-berec-and-berec-office). 

the  Evaluation  of  BEREC  and 

the  BEREC  Office,  Published  on  21/12/2012  (see: 

191 

 
 
 
 
 
 
                                                 
192 

Ubiquitous  EU 
Digital Society. 

issues 

NRAs  due  to  the  non-binding  character  of  BEREC's 
tasks.  This  aspect  should  be  considered,  since  the 
current nature of the BEREC tasks seems  insufficient 
to  support  a  consistent  application  of 
the  EU 
regulatory  framework  and  the  further  development  of 
consistent  regulatory  practice  among 
the  NRAs. 
its  "guidelines"  and  "common 
BEREC 
positions"  in  view  to  achieve  greater  consistency  of 
measures  but  the  non-binding  character  of  its  tasks 
makes it strongly dependent on the NRAs willingness 
to take it on board. Another  example where a lack of 
binding  power  has  been  detrimental 
the 
achievement  of  the  single  market  is  the  case  of  the 
termination  rates.  In  addition  BEREC's  structure  as  a 
group of NRAs without legal personality is perceived 
to  undermine  BEREC's  incentives  to  pursue  the 
internal  market  objectives 
the 
individual  or  collective  objectives  of  its  national 
members).  

(as  opposed 

to 

to 

As  part  of  the  Regulation  2015/2120,  BEREC  has 
been  assigned  additional  tasks  in  relation  to  net 
neutrality  and  roaming  which  are  very  relevant  for 
market players and end-users. 

Article 6 
(The office) 

The  BEREC  Office  (BO)  provides  administrative 
support  to  BEREC  and  its  budget  is  also  used  to 
finance  BEREC  activities,  therefore  its  activities 
continue to be relevant for BEREC.  

Evaluation Study 

Provisions raising issues of effectiveness  

Provisions 

Assessment 

Evidence 

Article 2 
(Role of  
BEREC) 

The advisory role of BEREC should 
be  better  clarified  and  improved: 
BEREC  does  not  shed  enough  light 
issues  or  propose 
on  emerging 
recommendations/guidelines  to  face 
them.  Furthermore,  BEREC  often 
exemplifies  national  considerations 
rather  than  a  single-market  driven 
approach.  One  example,  as  pointed 

Evaluation  Study,  EP's  opinion  on 
the  Evaluation  Report,268  Study  for 
the  EP  on  How 
to  build  a 
Ubiquitous EU Digital Society. 

268  European  Parliament  Resolution  of  10  December  2013  containing  its  opinion  on  the  evaluation  report 
regarding 
see: 
http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P7-TA-2013-0536&language=EN  

(2013/2053(INI) 

BEREC 

Office 

and 

the 

192 

 
 
 
 
                                                 
193 

Evaluation  Report,  EP's  opinion  on 
the  Evaluation  Report,  Public 
Consultation,  BEREC  Opinion  on 
the  Review  of  the  EU  Electronic 
Communications 
Regulatory 
Framework,272  Common Approach, 
Study for the EP on How to build a 
Ubiquitous EU Digital Society. 

out above, is the case of the BEREC 
guidelines.  This  is  partially  due  to 
the  structure  of  BEREC  as  a  group 
of  NRAs  without  legal  personality. 
Furthermore,  a 
the 
European  Parliament  suggests  that 
"BEREC  delivers  verdicts  based  on 
the  "lowest  common  denominator" 
or 
over 
consistency 
(see  also  comments 
below on the institutional set-up).  

prioritizes 

flexibility 

study 

for 

Article 4 
(Composition 
and 
organisation of 
BEREC)  

Article 6 
(The office) 

Article 7 
(Management 
Committee) 

Article 8 
(The 
Administrative 
Manager)  

and 

adequate 

An 
effective 
institutional set-up is key to ensure a 
positive  outcome  of 
the  overall 
regulatory framework.  

The Evaluation Report conducted in 
2012 by the Commission and further 
acknowledged  by 
the  European 
Parliament  concluded  that  BEREC  
has  so  far  fulfilled  its  assigned 
functions  rather  successfully  but 
indicates  that  BEREC's  structure 
and  overall  functioning  could  be 
further improved.  

a 

developping 

The  study  indicates  the  difficulties 
collective 
in 
European  thinking  different  from 
the  national  interests  of  the  NRAs 
which  form  it.  This  may  be  due  to 
(two-tier 
its 
governance  structure269)  and  also  to 
the fact that BEREC, as pointed out 
the  Evaluation  Study, 
also  on 
functions  as  a  bottom-up  regulatory 
model.270  The  bottom-up  approach 

current 

set-up 

269  The  BoR  is  neither  an  EU  Agency  nor  has  it  legal  personality  but  has  decisions  making  powers,  only  the 
Office is established as an EU body with legal personality but only with a supporting role. 
270 The outputs of BEREC are Article 4.7 of the BEREC Regulation establishes that "the work of BEREC may 
be organised into Expert Working Groups, where the experts of NRAs participate in order to prepare the work 
foreseen  in  the  annual  BEREC  Work  Programme.  All  the  draft  documents  (opinions,  reports…)  are  then 
discussed at the level of the Contact Network (which is a group of NRAs experts not established in the BEREC 
Regulation but by BEREC's own Rules of Procedure). The Contact network aims at preparing the meetings of 
the Board of Regulators of BEREC and of the Management Committee of the BEREC Office in view of the final 
adoption of the draft documents at the Plenary meetings (each Head of the NRAs vote on the draft documents). 

193 

 
 
 
 
 
 
 
 
 
 
                                                 
194 

indicates 

ensures  a  link  back  to  the  national 
market  but  at  the  same  time  the 
that 
Evaluation  Study 
BEREC  should  instead  have  more 
room to take strategic decisions and 
that the process should be more top-
down.  Even  if  BEREC  has  further 
developed  its  capacity  to  focus  on 
strategic  issues  (e.g.  by  revising 
BEREC's  strategy  paper  and  by 
key 
on 
organising  workshops 
challenges)271 
regulatory 
respondents 
public 
the 
to 
consultation  has  signalled    the  need 
for  more 
from 
BEREC on key topics as well as the 
fact 
current 
institutional set-up results in it often 
opting  for  greater  flexibility  or  the 
lowest common denominator instead 
of 
focusing  on  a  harmonised 
approach for the single market.  

proactiveness 

BEREC’s 

that 

the 

Therefore  the  current  governance 
structure does not seem adequate for 
properly  carrying  out 
tasks 
established  under 
the  BEREC 
Regulation  both  in  terms  of  content 
and procedure. Furthermore it is not 
in  line  with  the  Common  Approach 
(CA) since currently only the Office 
is  established  as  an  EU  body  with 
legal  personality,  the  BoR  is  not  a 
community  Agency  and  does  not 
have 
legal  personality  (but  has 
decision  making  powers  in  relation 
to  BEREC's  remit,  even 
the 
Commission has no voting power). 

if 

As pointed out by respondents to the 
public Consultation the absence of a 
stable  Chair  (currently  Article  4.4 

272  BEREC  Opinion  on  the  Review  of  the  EU  Electronic  Communications  Regulatory  Framework  (BoR  (15) 
206) 10 December 2015 (see: http://berec.europa.eu/eng/document_register/subject_matter/berec/opinions/5577-
berec-opinion-on-the-review-of-the-eu-electronic-communications-regulatory-framework)  

  See  http://berec.europa.eu/eng/document_register/subject_matter/berec/annual_work_programmes/4785-

271 
berec-strategy-2015-2017  

194 

 
 
                                                                                                                                                         
  
provides  for  a  rotating  -  1  year  - 
Chair)  may  explain  the  current  lack 
of  a  clear  and  stable  supervision  of 
the Agency. 

195 

(See  also  additional  comments 
under 
under 
"coherence"). 

"efficiency" 

and 

Article 10 
(Staff) 

Furthermore  it  should  be  signalled, 
as  also  BEREC  pointed  out  in  its 
opinion  on  the  telecom  review,  that 
the provision on NRAs participation 
from  EEA  States  as  observers 
(Article  4.3)  does  not  reflect  the 
current  practice  in  other  agencies 
and  the  incorporation  of  the  2009 
the  EEA 
Telecom  package 
Agreement  is  still  pending  mainly 
caused  by  a  disagreement  between 
the  Commission  and 
the  EFTA 
countries because of the reference to 
the observer status. 

into 

Article  10(3)  of 
the  BEREC 
regulation  provides  that  the  power 
of  the  Appointing  Authority  should 
be  exercised  by  the  Vice-Chair  of 
Committee. 
the  Management 
However only a limited list of tasks 
is  delegated  to  the  Administrative 
Manager,  and  this  creates  some 
administrative  burden.  This  aspect 
of operational improvement has also 
been  identified  by  BEREC  in  its 
opinion on the telecom review. 

Furthermore  this  is  not  in  line  with 
the  Common  Approach  which 
foresees  that,  in  order  to  allow  the 
Management  Board  (MB)  to  focus 
on  the  core  business,  he/she  should 
be  given 
the 
Appointing  Authority  for  all  the 
staff  but  these  competencies  should 
the  Executive 
to 
be  delegated 
also  be 
(who  must 
Director 
authorised 
those 
to  sub-delegate 
powers).   

the  powers  of 

Approach, 

Common 
Public 
consultation,  BEREC  Opinion  on 
the  Review  of  the  EU  Electronic 
Communications 
Regulatory 
Framework 

195 

 
 
 
 
 
Provisions raising issues of efficiency 

Provisions 

Assessment 

Article 3 
(Tasks 
BEREC) 

of 

Article 4 
(Composition 
and 
organisation of 
BEREC)  

Article 6 
(The office) 

As also pointed out in the Evaluation Report BEREC's 
tasks  need  to  be  prioritised  in  order  to  reach  its 
objective  with  high  standards and ensure  efficiency of 
its  work.  This  is  particularly  important  since  many 
NRAs already face or will face in the future difficulties 
to participate in BEREC because of the downsizing of 
their resources occurring while the BEREC agenda gets 
denser.  

The  role  of  the  Office,  which  is  currently  limited  to 
administrative  and  professional  support,  and  its  size 
(only  27  FTE  posts,  around  11  posts  are  exclusively 
occupied with providing administrative support for the 
Office itself), creates some inefficiency. The Office has 
to comply with the same resource-intensive procedures 
as  much  bigger  Agencies  and  its  professional  support 
provided to BEREC is still rather limited, as identified 
through  experience  and  pointed  out  in  the  Evaluation 
Study.  This  has  created  difficulties  in  order  to  recruit 
and  retain  qualified  staff  as  well  as  challenges  in 
ensuring such basic requirements as the segregation of 
duties  in  financial  circuits  or  ensuring  that  certain 
functions  could  be  performed  in  an  independent  way 
(this  is  one  the  reasons  why  recently  the  accounting 
officer 
the 
function  has  been  delegated 
Commission).  

to 

However,  as  pointed  out  in  the  Evaluation  Study,  the 
BO  could  be  better  used,  especially  when  supporting 
EWGs  in  their  everyday  work  (see  also  comments 
below under "effectiveness" and "coherence"). 

Article 5(4) 
Tasks  of  the 
BoR 

Article 9(3) 
Tasks  of  the 
Administrative 
Manager 

The  BEREC  Regulation  currently  provides  for  two 
separate  Annual  Reports  and  two  separate  Working 
Programmes  in  line  with  the  current  two-tier  structure 
of BEREC/BEREC Office. This, together with the fact 
that  according  to  the  new  rules  for  EU  Agencies  on 
annual/multiannual  Working  Programmes  (and  in  line 
with 
the  BO  Working 
Programmes is adopted 11 months earlier than the WP 
for  BEREC,  causes  certain 
inefficiencies  and 
coordination issues. 

the  Common  Approach), 

Finally  no  performance  indicators  are  included  in  the 

196 

Evidence 

EP's  opinion  on 
Evaluation 
the 
Report, 
Public 
consultation) 

Evaluation Study, 
EP's  opinion  on 
Evaluation 
the 
Study, 
Public 
consultation  

Common 
Approach, 
Evaluation 
Report, 
opinion  on 
Evaluation 
Report, 
consultation 

EP's 
the 

Public 

196 

 
 
 
 
 
 
 
 
 
 
 
 
 
197 

Working Programmes to allow for effective assessment 
of the results achieved in term of objectives, as pointed 
out in the Evaluation Study, in the EP's opinion on the 
Evaluation  Report  and  by  respondents  to  the  Public 
Consultation.     

Provisions raising issues of coherence  

Provisions 

Assessment 

Article 3 
(Tasks 
BEREC) 

of 

A  critical  aspect  has  been  identified  as  regards  the 
mismatch  between  the  tasks  of  the  independent 
NRAs and the tasks of the BEREC, where BEREC is 
expected to issue opinions in fields for which not all 
its NRA members are competent as pointed out in the 
EP's  opinion  on  the  Evaluation  Report  as  well  as  in 
the BEREC Opinion on the Telecom Review, where 
BEREC  urged 
the 
to  align 
the  Commission 
competences  of the NRAs to those of BEREC. 

This is undermining the contribution of BEREC to its 
tasks as well as the predictability for market players.  

Moreover,  the  BEREC  tasks,  partly  due  to  its  non-
binding advisory role, might not always be adequate 
in  order  to  ensure  coherence  with  the  national 
regulatory  practice  at  national  level.  Sometimes 
BEREC 
lacks  a  consistent  EU-wide  regulatory 
approach  in  order  to  represent  an  EU-wide  single 
market interest. 

Evidence 

Public 

EP's  opinion  on 
the 
Evaluation 
Report, 
Evaluation 
Report, 
consultation,  
BEREC  Opinion 
on  the  Review  of 
the EU Electronic 
Communications 
Regulatory 
Framework, 
Common 
Approach  

initiative/addressees/field) 

Furthermore a clarification of the tasks of the Agency 
as  regards  international  activities  is  necessary  (type 
of 
the 
Common Approach, in order to overcome the current 
ambiguities  related  to  the  role  and  mandate  of 
BEREC/BEREC Office in this field. 

line  with 

in 

Article 4 
(Composition 
and organisation 
of BEREC)  

As pointed out above, BEREC and its Office are two 
complementary  distinct  entities  since  the  BoR  is  a 
platform  of  regulators  with  no  legal  personality  and 
the  Office  is  an  EU  body  with  legal  personality  but 
with only a supporting role.  

Evaluation Study, 
Public 
Consultation 

Article 6 
(The office) 

Article 7 
(Management 

This is not in line with the CA and undermines legal 
certainty  and  accountability.  BEREC  has  on  several 
occasions claimed not  to  be  an EU Agency to avoid 
the  application  of  the  EU  rules.  This  is  from  the 

197 

 
 
 
 
 
198 

Committee) 

formal  point  of  view  correct,  however  it  should  be 
taken  into  account  that  BEREC,  in  order  to  perform 
its  role  and  actions,  is  using  financial  and  other 
resources  from  the  Office  which  is  financed  by  EU 
funds.  Therefore  this  claim  from  BEREC  seems 
artificial  and,  more  importantly,  it  undermines  its 
accountability. 

Furthermore  the  provision  on  NRAs'  participation 
from  EEA  States  as  observers  (Article  4.3)  is  not 
coherent  with  the  current  practice  in  other  agencies 
(see also comments under "effectiveness"). 

198 

 
 
 
 
 
 
 
199 

9.7. Annex VII 

The implementation of the multiannual Radio Spectrum Policy Programme                       

and of the harmonisation measures adopted pursuant to the Radio Spectrum Decision  

1. Introduction 

This annex reviews the implementation of the multiannual radio spectrum policy programme 
(RSPP) and of the harmonisation measures adopted pursuant to the Radio Spectrum Decision 
(RSD).  

Article  15  of  Decision  243/2012/EU273  of  the  European  Parliament  and  of  the  Council 
establishing  a  multiannual  radio  spectrum  policy  programme  (the  RSPP)  provides  that  the 
Commission shall conduct a review of the application of this Decision by 31 December 2015. 
In  addition,  annual  reporting  obligations  on  the  harmonised  use  of  radio  spectrum  are  also 
contained  in  Article  9  of  Decision  676/2002/EC274  of  the  European  Parliament  and  of  the 
Council  on  a  regulatory  framework  for  radio  spectrum  policy  in  the  European  Community 
(the Radio Spectrum Decision). In 2014, the Commission adopted its Report to the European 
Parliament and the Council COM(2014)228 on the implementation of the RSPP.  

Radio spectrum is the basis for wireless communications  such as Wi-Fi and mobile phones, 
and a key resource to other sectors including broadcasting, manufacturing and transport, and 
non-commercial  essential  services  such  as  defence,  emergency  services,  and  environmental 
protection. Radio spectrum is a finite natural and reusable resource in high demand, and the 
devices that use it can easily cross national borders. Using spectrum as efficiently as possible 
throughout the internal market, including spectrum sharing between different applications and 
users, requires coordination at international level and at European level, taking into account 
its impact on EU policies. 

2. The Radio Spectrum Decision 

The  Radio  Spectrum  Decision  (RSD)  provides  a  framework  for  the  coordination  of  policy 
approaches  and,  where  appropriate,  harmonised  conditions  for  the  availability  and  efficient 
use of radio spectrum necessary for the functioning of the internal market. It also established 
the Radio Spectrum Committee (RSC), whose role is to assist the  European Commission in 
the exercise of implementing powers which build on mandates to the European Conference of 
Postal  and  Telecommunications  Administrations  (CEPT)275  to  achieve  the  above  mentioned 
policy  objectives.  Successful  implementation  of  the  RSD  has  built  upon  fostering  good 
working relationships between the Commission and Member States represented in the RSC. 
This  collaboration  has  been  continued  in  the  current  implementation  of  the  RSPP.  All 
measures proposed to the RSC for voting have received a positive opinion. A list of decisions 
adopted between 2006 and 2015 is provided in Tables 2-5.  

The Radio Spectrum Policy Group (RSPG) is an advisory group established under Decision 
2002/622/EC  to  advise  the  Commission  on  the  strategic  policy  orientations  concerning 

273  
274  
275  
area of posts, radio spectrum and telecommunication networks 

OJ L 81, 21.3.2012, p. 7–17 
OJ L 108, 24.4.2002, pp. 1–6 
CEPT is a technical cooperation platform where Members from 48 European countries cooperate in the 

199 

 
 
                                                 
200 

spectrum.  The  "RSPG  Opinion  on  DSM  and  Framework  Review"  also  indicates  that  the 
RSD276,  coupled  with  equipment  regulation,  has  provided  an  efficient  tool  for  the 
implementation of harmonised technical conditions in Europe and that this supports a ‘single 
market  of  equipment’  with  cross-border  inter-operability,  bringing  many  benefits  including 
economies of scale in equipment manufacturing […] and service deployment; mobility of use; 
and greater technical efficiency.  

3. The EU's Radio Spectrum Policy Programme  

The  RSPP  defines  key  policy  objectives  and  sets  out  general  principles  for  the  strategic 
planning  and harmonisation of the use  of spectrum to  ensure the functioning of the internal 
market using the  mechanisms established by the RSD. Based on these  principles,  the RSPP 
identifies priorities for action in the area of wireless broadband communications and calls for 
sufficient  spectrum  for  innovative  audio-visual  media,  as  well  as  for  other  EU  policy  areas 
such  as  the  Galileo  programme,  the  European  Earth  Observation  Programme  Copernicus, 
transport, health, research, civil protection and disaster relief, environment and energy-saving 
applications.  Pursuant  to  the  Radio  Spectrum  Decision  and  the  RSPP,  the  Commission  has 
adopted  implementing  decisions  supporting  specific  EU  policy  areas  based  on  its 
collaboration  with  the  Radio  Spectrum  Committee,  the  Radio  Spectrum  Policy  Group 
(RSPG)277 and with the CEPT.  

The  RSPG  mentions  in  its  "Opinion  on  the  implementation  of  the  current  RSPP  and  its 
revision  to  address  the  next  period"278  that  "the  RSPP  and  the  Spectrum  Decisions  of  the 
European Commission  are the two pillars to  support the implementation of a Digital Single 
Market. Whilst the RSPP provides the directions, technical harmonisation measures are to be 
developed  based  on  the  Radio  Spectrum  Decision."  The  respondents  to  the  Commission's 
public  consultation  on  the  review  agreed  that  the  current  framework  has  delivered  on 
technical harmonisation while it could better deliver on the consistent release or efficient use 
of spectrum. 

The  RSPG  recommends  a  continuous  review  of  the  multiannual  RSPP  approach  to  provide 
political guidance for the measures under the RSD. It recommends that any future RSPP goes 
beyond  wireless  broadband  addressing  the  needs  of  various  other  sectors  supported  by  EU 
public  policies  but  does  not  set  overall  targets  on  how  much  spectrum  should  be  made 
available for the different services. The RSPG further concludes that the objectives of the first 
RSPP have been largely achieved and identifies a number of key issues for the future: 

 

Increasing role of spectrum sharing 

  The  need  for  some  forms  of  national  flexibility,  in  particular  for  electronic 
communication services. As a consequence, the RSPG prefers a band by band analysis 
and makes some recommendations for specific bands to be prioritised. 

http://rspg-spectrum.eu/wp-content/uploads/2013/05/RSPG16-001-

RSPG16-001 

276  
DSM_opinion.pdf  
277  
2002/622/EC 
278  
95df0154d5aa/RSPG16-006final_RSPP_opinion.pdf    

The Radio Spectrum Policy Group is an advisory group to the Commission established under  Decision 

RSPG15-621 rev  https://circabc.europa.eu/d/a/workspace/SpacesStore/4709f36a-f27b-4850-a19b-

200 

 
 
 
                                                 
 
 
201 

3.1. Regulatory principles and policy objectives 

Article 2 of the RSPP provides for Member States to cooperate with each other and with the 
Commission in order to ensure the consistent application of  the general regulatory principle 
when  managing  spectrum.  These  include  applying  the  most  appropriate  and  least  onerous 
authorisation  system  based  on  objective,  transparent,  non-discriminatory  and  proportionate 
criteria and in such a way as to maximise flexibility and efficiency in spectrum use; fostering 
the development of the internal market by promoting Union-wide digital services; promoting 
competition and  innovation taking account of the need to  avoid  harmful interference and of 
the need to ensure technical quality of service, defining the technical conditions of the use of 
spectrum and promoting technology and service neutrality in the rights of use of spectrum.  

Article  3  of  the  RSPP  details  the  policy  objectives  to  focus  the  priorities  of  Member  States 
and the Commission. The main objectives are to encourage efficient management and use of 
spectrum; seek to allocate sufficient and appropriate spectrum in a timely manner to support 
Union policies, including the target of 1200 MHz of suitable spectrum by 2015 to meet the 
increasing  demand  for  wireless  data  traffic;  promote  innovation  and  investment  through 
enhanced  flexibility  in  the  use  of  spectrum  including  general  authorisations,  passive 
infrastructure sharing; avoid the excessive accumulation of rights by certain undertakings.  

Setting out in the RSPP spectrum related common principles and objectives has contributed to 
guide  Member  States  decisions  in  the  management  of  spectrum  while  leaving  them  ample 
flexibility  in  the  choice of  the  measures.    At the  same  time,  due  to  the general  character  of 
some  of  the  regulatory  principles  and  policy  objectives  and  without  any  accompanying 
mechanism  for  Member  States  coordination,  they  have  fallen  short  of  ensuring  a  consistent 
approach  between  Member  States  in  the  spectrum  area  for  the  benefit  of  greater  legal 
predictability.   

With  regards  to  flexible  spectrum  use,  the  RSPP  calls  for  a  consistent  application  of 
technology and service neutrality; the freeing up of harmonised spectrum for new advanced 
technologies  and the possibility of trading rights of use and facilitating general authorisations 
in  order  to  foster  innovation  and  high-speed  broadband  connections.  In  terms  of  trading  or 
leasing  mechanisms,  these  have  hardly  been  used  so  far  with  the  exception  of indirect  such 
arrangements in cases of mergers or acquisitions. 

3.2. Wireless broadband services  

Concerning wireless broadband, Article 3(b) of the RSPP calls upon the Member States and 
the Commission to cooperate in identifying at least 1200 MHz of spectrum by 2015 to meet 
the increasing demand from wireless data traffic.  

The  Commission,  in  cooperation  with  the  Member  States,  carried  out  studies  to  identify 
appropriate frequency bands in order to achieve the 1200 MHz target. These bands are or will 
be  subject  to  harmonisation  measures.  Following  the  adoption  of  Implementing  Decision 
2015/750/EU  concerning  the  1.5  GHz  band,  1030  MHz  have  been  harmonised  as  of 
December 2015 for wireless broadband through Commission implementing decisions adopted 
under the Radio Spectrum Decision. This means that the 1200 MHz target by 2015 has not yet 
been fully achieved. As of February 2016, Member States have assigned an average of about 
700 MHz of the spectrum harmonised through these implementation measures (Figure 23). 

201 

 
 
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Figure 25 Assigned spectrum in harmonised EU band per Member State 

The  700  MHz  band  is  an  important  band  towards  the  1200  MHz  target  (which  will 
nonetheless  not  be  reached  with  this  band  exclusively)  and  towards  the  30Mbps-for-all 
objective  of  the  Digital  Agenda  for  Europe.  Commission  Implementing  Decision  (EU) 
2016/687 of 28 April 2016 on the harmonisation of the 694-790 MHz (700 MHz) frequency 
band for wireless broadband and some additional applications sets the technical conditions of 
use in this band. This Implementing Decision is complementary to the legislative proposal to 
EP  and  Council  on  the  long-term  use  of  the  UHF  band  of  2  February  2016  which  sets  out 
specific  deadlines  and  conditions  for  the  coordinated  transition  in  spectrum  use  within  the 
whole 470-790 MHz ('UHF') band across the Union. The 2.3 GHz is also being considered for 
an  implementing  measure  to  harmonise  the  technical  conditions  of  use  of  this  band  for 
wireless broadband.  

With  regard  to  Electronic  Communication  Services  (ECS),  Article  4(5)  requires  Member 
States to put in place, where appropriate, selection criteria and procedures for granting rights 
of  use  that  promote  competition,  investment  and  the  efficient  use  of  spectrum.  In  addition, 
Article  4(8)  of  the  RSPP  requires  the  Commission,  in  cooperation  with  Member  States,  to 
address  the  possible  risk  of  fragmentation  of  the  internal  market  due  to  divergent  selection 
criteria and procedures for harmonised spectrum by facilitating the identification and sharing 
of best practices on authorisation conditions and procedures, and by encouraging the sharing 
of information in order to increase consistency across the Union.  

In  response  to  the  public  consultation  on  the  review  of  the  regulatory  framework,  most 
respondents indicated that the current regime has better delivered on technical harmonisation 
than  on  consistent  release  or  efficient  use  of  spectrum  and  many  reported  that  a  lack  of 
coordination of selection methods and assignment conditions has affected the development of 
ECS. A majority of market actors seek more consistency in spectrum management to increase 
legal certainty, transparency and predictability for investment. The RSPG adopted a report on 

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"Efficient awards and efficient use of spectrum" in 2016 where it concludes that "there isn’t 
one single method of awarding spectrum that could be extrapolated across all Member States 
or all bands […] however, there are some key lessons that can be learnt from across the EU 
and  globally  in  the  approach  to  designing  and  conducting  awards.  Common  to  all  of  these, 
and of particular importance to stakeholders is clarity, simplicity and regulatory certainty." 

Article  5  of  the  RSPP  is  more  specific  and  mentions  several  measures  such  as  limiting  the 
amount of spectrum for which rights of use are granted to any undertaking (spectrum caps), 
attaching conditions to such rights of use, reserving a certain part of a frequency band to new 
entrants, refusing to grant new rights or new users in certain bands, prohibiting or imposing 
conditions  on  transfer  of  rights  or  amending  existing  rights.  All  of  these  measures  are 
valuable in that they can and should be used in cases where they can promote competition or 
avoid market distortions. Indeed, the majority of market actors and several public authorities 
responding  to  the  public  consultation  on  the  review  consider  that  spectrum  assignment 
procedures  have  a  significant  impact  in  structuring  the  mobile  market  and  its  competitive 
landscape.  

Member  States  have  individual  competence  on  these  market  shaping  measures  and  have 
frequently used them in some form or another to help achieve their intended policy objectives 
but  the  use  of  these  measures  does  not  commonly  follow  the  outcome  of  an  ex  ante 
competitive  assessment  that  proves  that  the  market  is  not  effectively  competitive.  In  many 
Member States these measures are defined by the Ministry and even when even when NRAs 
are involved in their design this is not a consequence of an ex ante competitive assessment in 
which  the  competition  authorities  play  a  major  role  (to  the  exception  of  those  integrated 
authorities  in  as  far  as  internal  consultation  takes  place).    There  is  no  mechanism  to  ensure 
that such measures are used consistently across the EU. To this regard, the RSPG Report on 
Efficient Awards and Efficient Use of Spectrum279 notes that " spectrum caps and reservations 
should reflect the identified objectives of an award based on a market assessment in order to 
be  consistent  with  competition  law  "  and  more  specifically  indicates  that  "Member  States 
need to be aware of unintended consequences arising from caps or set asides".  

Article 6(2) of the RSPP required Member States to authorise, by the end of 2012, subject to 
market  demand,  the  use  of  the  frequency  bands  already  harmonised  at  EU  level280.  The 
Commission  has  been  working  to  ensure  the  timely  implementation  of  Member  States’ 
obligations  under  Article  6(2),  using  all  means  at  its  disposal,  including  pilot  letters  which 
were sent to 23 Member States and the launch of one infringement procedure.  

Article  6(4)  of  the  RSPP  required  Member  States  to  carry  out  an  authorisation  process  in 
order to allow the 800 MHz band, the so-called ‘digital dividend band’, to be used to provide 
electronic  communications  services  by  1  January  2013.  This  article  also  allowed  the 
Commission  to  grant  specific  3  years  maximum  derogations  for  Member  States  where 
exceptional national or local circumstances or cross-border frequency coordination problems 
prevented the availability of the band (see  Table 1).  Three years after the original deadline, 
the 800 MHz band has not yet been assigned in all Member States. 

RSPG16-004 FINAL  

279  
a4a5-679577c8d2bd/RSPG16-004final-Efficient_Awards_report.pdf  
280 

OJ L 144, 4.6.2008, pp. 77–81; OJ L 163, 24.6.2008, pp. 37–41; OJ L 274, 20.10.2009, pp. 32–35 

https://circabc.europa.eu/d/a/workspace/SpacesStore/ddb735a3-a7e8-4c55-

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204 

Table 1 - Assignment and derogations of the 800 MHz harmonised band 

Status 

Member States 

Number  of 
MS 

Assignment 
before 

in  2012  or 

ES*, DK, DE, IE, FR, IT, LU, NL, PT, 
SE, HR, RO 

12 

Assignment in 2013** 

LT, AT, SK, FI, CZ, BE, UK, EE, LV 

Assignment in 2014 

HU, EL, SI 

Assignment in 2016 

PL 

Not yet assigned  

BG  (military  use  notified  pursuant  to 
Art.1(3)), CY****, MT*** 

* 
** 
*** 
****  

Despite being assigned in 2011, the band was made available in 2015. 
Including some derogations until 1 January 2014 
Cross-border interference issues 
Interference issues due to local political situation 

9 

3 

1 

3 

Fourteen Member States sought derogations; two were refused in their entirety as they did not 
meet the conditions of Article 6(4). The Commission limited the duration of the derogations 
for  the  remaining  12  countries  to  the  minimum  time  necessary,  taking  each  specific 
circumstance into consideration. Two derogation requests were only partially granted and four 
others  were  granted  for  a  shorter  duration  than  requested.  While  seeking  to  avoid  negative 
consequences  for  neighbouring  Member  States,  derogations  were  mainly  justified  by 
difficulties in switching off analogue TV due to specific geographical or economic situations, 
or coordination problems between Member States with other countries. The availability of the 
800 MHz spectrum has also been delayed in Bulgaria as, in accordance with Article 1(3) of 
the  RSPP,  it  notified  the  continued  use  of  the  800  MHz  band  by  the  military  until  the 
equipment in use is phased out. The RSPG offered ‘good offices’ to help Member States with 
cross-border  coordination  issues  within  the  Union;  however  this  valuable  mediation  has 
proven  in  some  cases  to  be  lengthy  and  has  been  limited  by  the  lack  of  clear  enforcement 
powers.  

4. Conclusions 

The  RSPP  has  helped  to  foster  innovation  and  competition  in  electronic  communication 
services  by  setting  the  goal  of  1200  MHz  for  wireless  broadband  while  stressing  the 
importance of network and service neutrality as well as transparency and predictability. It has 
established  the  principles  and  objectives  for  spectrum  management  needed  to  enable 
innovative  services  and  support  electronic  communications  and  other  EU  policies.  The 
harmonisation  of  spectrum  creates  the  potential  for  economies  of  scale  and,  by  allowing, 

204 

 
 
 
 
 
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whenever possible, the widest spectrum usage conditions, many new applications can use the 
spectrum while respecting existing usage.  

The RSPP has nevertheless shown certain limits due to the general character of some of the 
regulatory  principles  it  established,  which  need  to  be  made  more  precise  for  effective 
monitoring  of  implementation,  for  example  as  concerns  the  authorisation  principles  and 
system  and  the  maximisation  of  flexibility  and  efficiency  of  spectrum  use.  While  each 
Member State continues to set the authorisation conditions and procedures for spectrum, the 
large  differences  in  these  conditions  and  procedures  contribute  to  the  fragmentation  of  the 
internal  market  with  a  negative  impact  on  deployment  of  networks  throughout  the  whole 
European  territory  and  of  their  integration  across  borders  and  to  other  disadvantages  for 
consumers such as lower speeds and quality and slower take up.  

The general principles and conditions of the current framework do not appear to be sufficient 
to  put  in  place  a  consistent  approach  for  spectrum  assignment  and  to  thus  remove  these 
barriers to the single market.  

In the case of electronic communications, the 1200 MHz by 2015 target is not yet achieved. 
The  experience  gained  in  implementing  the  RSPP’s  wireless  broadband  provisions  and  in 
monitoring  national  authorisation  conditions  and  procedures  over  the  last  four  years,  shows 
that the RSPP has not sufficiently stimulated a single market and has been unable to achieve 
sufficient  convergence of licensing conditions, integration of networks  or investment  in  and 
rollout of wireless broadband at rates comparable to those of other regions or those needed for 
achieving the DAE target of 30 Mbps for all by 2020. The Commission notes that the time lag 
in which the spectrum is made available in the first and the last Member State is several years 
for some of the harmonised bands with an effect on the availability of services for consumers 
in different Member States. Delays in assigning the 800 MHz band demonstrates the need for 
more nimble mechanisms for the harmonised timing of assignments throughout the Union or 
for  categories  of  Member  States  based  on  the  characteristics  of  the  wireless  broadband 
market, and for the harmonised duration of spectrum usage rights. It is important to ensure the 
efficient  and  timely  assignment  of  existing  harmonised  spectrum  in  order  to  accrue  the 
potential socio-economic benefits through digital services provided over wireless broadband 
networks.  

Legal  certainty  on  common  timing  and  duration  of  spectrum  assignments  for  wireless 
broadband, including clarity on renewal conditions, should be beneficial to operators in their 
business  case  evaluations  and  in  their  cross-border  strategies  and  will  allow  them  to  have 
more predictable access to spectrum and conditions for investment. 

In  terms  of  promoting  competition  and  avoiding  distortion  of  the  market,  the  Commission 
notes  several  instances  where  market  players  have  expressed  dissatisfaction  with  the 
assignment  process  and  the  conditions  of  use  of  their  licences,  particularly  with  respect  to 
their  competitors.  More  consistency  in  terms  of  policy  objectives  and  a  thorough  ex-ante 
evaluation of the market, including processes in which authorities or peer review groups are 
involved  and/or  consulted,  are  therefore  needed  to  ensure  that  competition  is  promoted  and 
that negative indirect effects on the market can be avoided. 

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Table 2 — General spectrum policy (programme, definition and inventory) 

Date 

Decision 

Content 

16 May 2007  2007/344/EC 

Harmonisation  availability  of  information 
regarding 
the 
Community 

spectrum  use  within 

16 Dec 2009  Commission  Decision 

2009/978/EC 

Decision 

Amending 
2002/622/EC 
establishing  a  Radio  Spectrum  Policy 
Group 

14 Mar 2012  Decision  243/2012/EU 
of  the  Parliament  and 
the Council  

Establishing a multi-annual radio spectrum 
policy programme (RSPP) 

23 Apr 2013  2013/195/EU  

the 

Defining 
arrangements, 
practical 
uniform  formats  and  a  methodology  in 
relation to the radio spectrum inventory 

Table 3 — Electronic communications services (including wireless broadband) 

Date 

Union Act 

Content 

12 Feb 2007  Commission  Decision 

2007/90/EC 

Amending Decision 2005/513/EC on the use 
the  5  GHz  band  for  the  implementation  of 
Wireless  Access  Systems  and  Radio  Local 
Area Networks 

14 Feb 2007  Commission  Decision 

2007/98/EC 

Harmonisation of the radio spectrum in the 2 
GHz  band  for  systems  providing  mobile 
satellite services 

7 Apr 2008 

2008/294/EC 

21 May 2008  Commission  Decision 

2008/411/EC 

13 Jun 2008  Commission  Decision 

2008/477/EC 

Harmonised  conditions  of  spectrum  use  for 
mobile 
on 
aircraft 

communication 

services 

Harmonisation  of  the  3400  -  3800  MHz 
band 
communications 
services 

electronic 

for 

Harmonisation  of 
frequency 
communications services 

band 

the  2500-2690  MHz 
electronic 

for 

5 Aug 2008  Commission  Decision  Harmonisation  of 

frequency  bands 

the  5875-5905  MHz 
safety-related 

for 

206 

 
 
 
 
207 

2008/671/EC 

applications  of 
Systems (ITS) 

Intelligent  Transport 

16 Sep 2009  Directive  2009/114/EC 
of  the  Parliament  and 
the Council 

Amending  the  GSM  Directive  to  make  the 
900  MHz  band  available  for  any  terrestrial 
system  capable  of  providing  electronic 
communications  services  that  can  coexist 
with GSM systems 

16 Oct 2009  Commission  Decision 

2009/766/EC 

Harmonisation  of  the  900  MHz  and  1800 
MHz  bands  for  electronic  communications 
services  

19 Mar 2010  2010/166/EU 

Harmonisation  conditions  of  use  of  radio 
communication 
for  mobile 
spectrum 
services on board vessels 

6 May 2010  Commission  Decision 

2010/267/EU 

Harmonisation of technical conditions of use 
in  the  790-862  MHz  band  for  electronic 
communications services 

18 Apr 2011  Commission 

Implementing  Decision 
2011/251/EU 

Amending  Decision  2009/766/EC  on  the 
harmonisation  of  the  900  MHz  and  1800 
MHz  bands  for  electronic  communications 
services 

5 Nov 2012 

Commission 
Implementing  Decision 
2012/688/EU 

Harmonisation  of  the  1920-1980  MHz  and 
2110-2170  MHz  bands 
for  electronic 
communications services 

12 Nov 2013  2013/654/EU  

2 May 2014  Commission 

Implementing  Decision 
2014/276/EU 

8 May 2015  Commission 

Implementing  Decision 
2015/750/EU 

Amending Decision 2008/294/EC to include 
and 
additional 
mobile 
bands 
frequency 
communications services on aircraft. 

technologies 
for 

access 

Amending  Decision  2008/411/EC  on  the 
the  3400-3800  MHz 
harmonisation  of 
terrestrial  systems 
frequency  band 
capable 
electronic 
communications services 

for 
providing 

of 

Harmonisation  of 
frequency  band 
capable 
communications services 

of 

the  1452-1492  MHz 
terrestrial  systems 
electronic 

for 
providing 

207 

 
 
 
 
Table 4 - Devices and equipment (including machine to machine) 

Date 

Commission Decision  Content 

208 

08 July 2004 

2004/545/EC  

9 Nov 2006 

2006/771/EC 

23 Nov 2006  2006/804/EC 

21 Feb 2007  2007/131/EC 

23 May 2008  2008/432/EC 

5 Aug 2008 

2008/673/EC 

13 May 2009  2009/381/EC 

21 Apr 2009  2009/343/EC 

30 Jun 2010  2010/368/EU 

29 Jul 2011 

2011/485/EU 

8 Dec 2011 

2011/829/EU  

Harmonisation  of  radio  spectrum  in  the  79 
GHz  range  for  the  use  of  automotive  short-
range radar equipment 

Harmonisation of the radio spectrum for use 
by short-range devices (SRD) 

frequency 

Harmonisation  of  the  radio  spectrum  for 
radio 
(RFID) 
devices  operating 
the  ultra-high 
frequency band 

identification 

in 

Allowing  harmonised  use  of 
spectrum 
wideband technology  

the  radio 
for  equipment  using  ultra-

Amending 
Decision 
Commission 
2006/771/EC  on  harmonisation  of  the  radio 
spectrum for use by short-range devices 

Amending  Decision  2005/928/EC  on  the 
harmonisation  of  the  169,4-169,8125  MHz 
frequency band for certain types of short 
range devices  

on 
Amending  Decision 
harmonisation of the radio spectrum for use 
by short-range devices 

2006/771/EC 

2007/131/EC 

on 
Amending  Decision 
allowing  the  use  of  the  radio  spectrum  for 
equipment 
ultra-wideband 
technology 

using 

Amending  Decision 
on 
harmonisation of the radio spectrum for use 
by short-range devices 

2006/771/EC 

Amending  Decision  2005/50/EC  on  the  24 
GHz  band  for  the  time-limited  use  by 
automotive short-range radar equipment 

Amending  Decision 
on 
harmonisation of the radio spectrum for use 
by short-range devices  

2006/771/EC 

208 

 
 
 
11 Dec 2013  2013/752/EU  

7 Oct 2014 

2014/702/EU 

Amending  Decision 
on 
harmonisation of the radio spectrum for use 
repealing 
by  short-range  devices  and 
Decision 2005/928/EC 

2006/771/EC 

Amending  Decision 
on 
allowing  the  use  of  the  radio  spectrum  for 
equipment using ultra-wideband technology  

2007/131/EC 

209 

1 Sep 2014 

Commission 
Implementing  Decision 
2014/641/EU 

technical 

Harmonised 
of 
spectrum  use  by  programme  making  and 
special events (PMSE) equipment 

conditions 

Table 5 - Derogations under Art. 6(4) of the RSPP Decision regarding the 800 MHz band 

Date 
Decision 

of 

Commission  Decision 
notified to MSs 

Content 

23 Jul 2013  C(2013) 4546  

Spain — 12 months 

23 Jul 2013  C(2013) 4547  

Poland —12 months 

23 Jul 2013  C(2013) 4569  

Hungary — 18 months 

23 Jul 2013  C(2013) 4570  

Austria — 9 months 

23 Jul 2013  C(2013) 4590  

Malta — 24 months 

23 Jul 2013  C(2013) 4592  

Slovakia — no derogation granted 

23 Jul 2013  C(2013) 4593  

Romania — until 5.4.2014 

23 Jul 2013  C(2013) 4594  

Slovenia — no derogation granted 

23 Jul 2013  C(2013) 4595  

Cyprus — 36 months 

23 Jul 2013  C(2013) 4608  

Finland — 12 months 

23 Jul 2013  C(2013) 4613  

Lithuania — 6 months* 

17 Oct 2013  C(2013)6765 

Greece — 30.10.2014 

17 Oct 2013  C(2013)6764 

Latvia — 30 months 

9 Dec 2013 

C(2013)8690 

Czech Republic — 6 months** 

*   
**  

30 months for 820-821 MHz sub-band 
Two districts only 

209