kom (2016) 0590 - Bilag 2: Udtalelse fra Bundesrat vedr. forslag til direktiv om en kodeks for elektronisk kommunikation

Europaudvalget 2016-17
KOM (2016) 0590 Bilag 2
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Bundesrat

Official Document

612/16

(Decision)

16.12.16

Decision

Of the Bundesrat

Proposal for a Directive of the European Parliament and of the

Council establishing the European Electronic Communications

Code (Recast)

COM(2016) 590 final; Council doc. 12252/16

In its 952

session on 16th December 2016 the Bundesrat adopted the following

Opinion pursuant to §§ 3 and 5, Act on Cooperation between the Federation and the

Federal States in European Union Affairs (EUZBLG):

Fundamental issues

The Bundesrat welcomes the

Commission’s

inclusion in its 14th September

2016 Connectivity Package of a proposal to recast the legal framework for

telecommunications to take account of recent and future developments in the

telecommunications and broadband market. The Bundesrat considers the

proposal that has been submitted to constitute a good basis for the forthcoming

discussion process at the European level. The Bundesrat takes the view that it

is also appropriate to combine the provisions previously incorporated into four

Directives (Framework Directive; Authorisation Directive; Access Directive;

Universal Services Directive) in a single piece of legislation. In this context

the Bundesrat would however like to see more concise drafting of the Code.

The Bundesrat considers it essential that the successful principles enshrined in

existing legislation be maintained in the recast of the legal framework for

telecommunications; these existing provisions should only be restricted,

modified or supplemented if this is justified in the light of market

developments. The underlying principle in this process must be to ensure

effective competition, which has made a decisive contribution to the

development of telecommunications and broadband markets.

Vertrieb: Bundesanzeiger Verlag GmbH, Postfach 10 05 34, 50445 Köln

Telefon (02 21) 97 66 83 40, Fax (02 21) 97 66 83 44, www.betrifft-gesetze.de

ISSN 0720-2946

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The Bundesrat therefore welcomes the fact that the new legal framework

essentially adheres to the principle of regulation of operators with

“significant

market power”

(SMP regulation), as well upholding competition as a

fundamental principle of regulation. Making the SMP provisions less stringent

would in the Bundesrat’s opinion only be justified if this did

not jeopardize

competition.

The Bundesrat also supports the new Code’s

aim of making

a significant

contribution to the establishment

and utilisation of “very high capacity”

networks (VHC networks). At the same time, the Bundesrat emphasises its

view that there should be no priority or subordinate objectives in the legal

framework, now or in the future.

On the whole the Bundesrat is concerned that the new Code will not give rise

to greater simplification, as is intended, but will instead lead to more

regulation and render the procedures more complex.

Objectives

The Bundesrat welcomes the introduction of a new objective in Article 3, Sub-

section 2, Letter a, namely promotion of broad-based access to and utilisation

of very high capacity data connections (VHC networks). However the

Bundesrat considers that there is a need to clarify that the four objectives

indicated in Article 3, Sub-section 2 are of equal importance, as these

objectives are not only connected but in many cases inter-dependent. For

example, competition should be seen as the key factor driving innovation and

investment in infrastructure in Europe (cf. BR Official Document 145/15

(Decision)).

Right of veto for the Commission concerning remedies (for market failures)

The Bundesrat is opposed to the right of veto for the Commission (together

with

GEREK; “double lock

procedure”) envisaged in Article 33, Sub-section

5, Letter c, as this would constrain the fundamental autonomy of national

regulatory authorities to an unacceptable degree.

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Official Document 612/16

(Decision)

Frequency policy

The Bundesrat is furthermore also opposed to the proposed broad extension of

the Commission’s

rights to intervene in particular in the light of the numerous

individual provisions foreseen for all general and specific aspects of frequency

allocation procedures.

The mandatory decision-making powers foreseen in particular in Articles 38,

45, 46, 47, 51, 53 and 54, with GEREK involvement, would prevent Member

States from freely choosing the form and means of regulation. It is however

crucial for Member States to be able to decide freely, pursuant to the wording

of Article 288 TFEU, which is a primary law provision; the level and detail of

regulation envisaged by the Commission would therefore not be compatible

with the legal instrument proposed in this case, namely a Directive.

In the Bundesrat’s

view, the Commission proposals on frequency policy do

not reduce bureaucracy or lead to a more rapid and efficient allocation

procedure, but would instead cause considerable delays and make regulatory

decisions significantly more complex.

By giving the Commission the authority to have the final say on decisions

relating to frequency allocation, the proposed configuration of the peer review

process described in Article 35 would lead to quasi permanent legal and

expert oversight of national regulatory authorities, including Germany's

constitutionally enshrined cooperation between the Federation and the federal

states on matters pertaining to frequency regulation.

10. In its Opinion on the proposal on utilisation of the 470 - 790 MHz frequency

band in the European Union, the Bundesrat has already rejected stipulation of

far-reaching coverage requirements by the Commission concerning utilisation

of this frequency band (cf. BR Official Document 60/16 (Decision)).

The Bundesrat therefore reiterates its view, as elucidated in that Opinion, that

stipulating coverage requirements is a matter for national procedures and must

be defined on the basis of national market situations.

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11. The Bundesrat is opposed specifically to undifferentiated determination of

frequency allocations for a period of at least 25 years pursuant to Article 49,

Sub-section 2. The Bundesrat cannot identify any basis that would justify such

a blanket stipulation, nor any indication of the scrutiny of the impact on

market access, competition, innovation incentives and future technical

developments that would be required before introducing such a measure.

12. Similarly the Bundesrat cannot agree to powers being granted to the

Commission pursuant to Article 53 that would empower the Commission,

with the argument of harmonisation across the European Union, to abitrarily

reduce the utilisation period for frequency bands that have already been

allocated. A decision of this kind would lead to a high degree of legal

uncertainty for market participants and potential claims for compensation from

rights holders.

13. The Bundesrat takes the view that the proposed Directive, contrary to the

Commission’s intentions,

would have rather negative effects on states in the

that have played a “pioneering role”

in frequency spectrum allocation. In

its Opinion on the Commission Communication on a Digital Single Market

Strategy for Europe (BR-Official Document 212/15 (Decision)), the Bundesrat

has already expressed its view that national administration of radio frequencies

has proved to be an efficient means to maintain a balance between economic,

social and cultural aspects. The Bundesrat continues to hold that Germany’s

rapid and forward-looking allocation of frequencies functions as an incentive

for other Member States to meet the Commission’s

ambitious goals for the

implementation schedule.

14. The Commission’s

proposals on

frequency policy

therefore in the Bundesrat’s

view extend far beyond the requisite level of regulation.

The Bundesrat is of the opinion that the new provisions on frequency policy

should be limited to stipulation of a timeframe for implementation deadlines

within the EU, establishment of substantiated minimum requirements for

frequency allocation procedures, and realisation of the associated

implementing provisions and implementation-related powers for the

Commission.

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Official Document 612/16

(Decision)

Access regulation

15. Market analysis procedure (Article 65): the Bundesrat welcomes the

establishment of the three criteria test as the fundamental basis for systematic

regulation of matters pertaining to competition law. However, the Bundesrat

takes an extremely critical view of the exemptions from the SMP regulation

envisaged by the Commission. The Bundesrat for example would question

whether VHC networks with been complementary expansion as part of a co-

investment scheme involving more than one network operator should be

exempt from existing access obligations for third parties, in as much as

(virtual) access to the network is guaranteed before the new expansion was

implemented. The Bundesrat doubts that curtailing competition in this manner

would produce additional incentives for investments in new networks.

Extending market analysis cycles to up to 5 (+ 1) years appears acceptable, but

a more precise description is needed of the scope for national regulatory

authorities to respond to market developments by initiating a new market

analysis at an early stage.

Evaluating market failure solely from the perspective of end-user markets is

not a sufficient response

in the Bundesrat’s

view; market failure should (also)

continue to be related to an appraisal of wholesale markets.

16. Access to civil engineering (Articles 70 and 71):

in the Bundesrat’s

view such

access is to be welcomed, however for systematic reasons it should be

restricted to SMP firms. There should not however be any stipulation or

recommendation of such a primary wholesale product. Instead, alternative

wholesale products should be available on the basis of the infrastructure and

market-related preconditions in each Member States.

17. Symmetrical obligations (Article 59): The Bundesrat considers that

introducing additional symmetrical obligations would constitute an

unacceptable paradigm shift compared with the provisions to date, which

worked on the postulate that regulation is essentially only required for

operators with significant market power. In

the Bundesrat’s

view the proposed

approach would lead to more regulation, would reduce market competition

and impede investments by competitors. Furthermore, the EU Directive on

Broadband Cost Reduction (transposed in Germany in the Bill on Facilitation

of the Development of Digital High-Speed Networks (DigiNetzG)) has

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already introduced additional symmetrical obligations; the market impact of

these measures should first be observed. The Bundesrat is therefore opposed

to the introduction of further symmetrical obligations.

18. Transnational markets (Articles 63 and 64): The Bundesrat does not in

principle see any need for scrutiny and regulation of transnational markets.

This would also risk devaluing national regulation. However, the Bundesrat

requests the Commission to examine whether it might be advisable to foresee

“an arbitrator function”

for GEREK should problems arise at the borders

between Member States.

19. Geographical surveys (Article 22): The Bundesrat acknowledges the

Commission’s

efforts to address

the problem

of “blank

spots” in broadband

network expansion and to tackle the risk entailed in overbuilding of existing

high-performance networks. The Bundesrat however points out that the legal

framework for telecommunications falls within the ambit of competition law

and that it is not a suitable policy area to take action through state aids or

other support, let alone for state planning of broadband network expansion. In

addition, the instrument of geographical surveys would involve signficant

bureaucratic effort, without this producing any tangible benefits in the spirit of

the proclaimed objectives. This measure could not be viewed as a viable

incentive mechanism if national regulatory authorities were to be obliged in

future to conduct geographical surveys of

network operators’ intentions to

invest in network infrastructure, with powers to impose penalties if false

information were provided; instead, there is good reason to fear it would

trigger increased reluctance to make new investments. The Bundesrat

therefore proposes that these provisions be deleted and requests the

Commission to examine alternative instruments, compatible with the legal

framework for telecommunications, in order to attain this goal. Furthermore,

the Bundesrat also calls for improved linkage of regulatory and state aid

regimes.

20. Pricing flexibility for SMP operators (Article 72): the Bundesrat requests the

Commission to substantiate why special provisions, deviating from the three

criteria test, are purportedly justified.

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Official Document 612/16

(Decision)

21. Regulatory treatment of new network elements (Article 74): the Bundesrat

considers that this provision (tantamount

to a “regulatory holiday”)

would

have a significant detrimental impact on competition. This provision should

therefore be deleted.

22. Migration from legacy networks (Article 78): the Bundesrat considers that it is

very prudent to ensure transparency and national regulatory authorities'

involvement in the migration process, as envisaged in the proposal. However

the same regulatory provisions must apply for the new networks as for legacy

networks on the basis of the three criteria test.

GEREK

23. The Bundesrat welcomes the proposed reinforcement of national regulatory

authorities' independence and the proposed harmonisation of their remit.

24. The Bundesrat considers that the organisational form of GEREK to date, as an

“umbrella” structure for the Regulatory Council, consisting of representatives

of national regulatory authorities and the GEREK Bureau, has proved its

worth. This structure ensures that GEREK functions as a grouping of national

regulatory

authorities

harmonise

EU-wide

provisions

telecommunications regulation, rather than being an EU Agency attached to

the Commission with its own sovereign rights. The Bundesrat views this

structure as providing the best guarantee of national regulatory authorities’

independence.

25. The Bundesrat is therefore opposed to the establishment envisaged in the

proposed Regulation for a

“GEREK”

Agency with its own legal identity and

an expanded remit, and is also opposed to areas of responsibility previously

within the ambit of national regulatory authorities being transferred to such an

Agency. The Bundesrat also has particular concerns pertaining to the realm of

frequency regulation, where it is envisaged that the new Agency would be

granted substantial powers in all issues relating to grant and allocation of

frequencies, even for detailed provisions.

26. The Bundesrat notes that the Commission has not yet provided a substantiated

justification of the need for this type of comprehensive centralisation of

frequency regulation. Instead, only general catch-all expressions such as

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“harmonisation”, “uniform implementation of the legal framework”,

“shortcomings in the existing institutional structure”, “ a lack of coherence”

“efficient oversight”, “greater influence”, “cross-border aspects”, “centralised

are cited by way of justification.

27. The Bundesrat is opposed to the proposal that national regulatory authorities

be subordinated to stipulations drawn up by a European Agency and the

Commission; this would mean a loss of independence for national regulatory

authorities.

28. The Bundesrat also takes a similar view of centralisation of frequency

administration. The possible advantages of central coordination would be

outweighed by cumbersome and bureaucratic harmonisation procedures,

which, given the average level of development in the EU, would slow down or

even prevent future developments in frequency utilisation.

29. The Bundesrat therefore vigorously rejects centralisation of GEREK in an

Agency as envisaged in the proposed Regulation, and likewise rejects the

proposal that such an Agency would handle frequency administration.

30. Instead the Bundesrat advocates independent regulatory authorities and

frequency administration at Member State level. The Bundesrat underlines in

this context that the existing GEREK structure and frequency administration

system have, generally speaking, proved their worth and that their basic

structure should in essence be maintained. The Bundesrat would however

welcome measures to further strengthen GEREK (including improved staffing

levels) within the framework of its existing structure and competences.

Regulation of Over-The-Top Players (OTT)

31. The Bundesrat broadly welcomes the Commission’s

appraisal that

OTT

communications services are to be categorised as electronic communications

services, as well as noting its awareness in this context of the fundamentally

different market modalities for OTT communications services, which are

often provided in return for a non-monetary consideration, for example access

to personal

data or end users’

willingness to view advertising.

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Official Document 612/16

(Decision)

Particularly in the light of the pronounced innovative potential of OTT

communications services, the Bundesrat takes the view that

telecommunications-specific regulatory obligations cannot be transposed

verbatim to the structures of new OTT services. The Bundesrat however

considers it advisable to ensure equal treatment of OTT communications

services that constitute functional substitutes for telecommunications services,

particularly with regard to data protection and consumer protection.

32. The Bundesrat shares the Commission’s

assessment that a future-oriented

definition of electronic communications services cannot be based solely on

technical parameters but must instead adopt a functional approach. However,

the Bundesrat has considerable doubts as to whether the distinction proposed

by the Commission between number-dependent and number-non-dependent

interpersonal communications services can provide a practicable and enduring

basis for further development of the legal framework for electronic

communications in the long term, as the question of whether a national or

international numbering resource is used, pursuant to ITU-E.164 stipulations,

is primarily a technical parameter, which, for example, does not provide any

information about the substitutability of an electronic communications

services from an end-user perspective.

33. Against the backdrop of this extremely complex challenge, the Bundesrat

notes that the Commission has on many points taken the right decision about

the general orientation of policy, for example concerning measures to

guarantee interoperability if there is a genuine threat to connectivity, or

effective access to emergency services. With regard to other points in the

proposed Directive, the Bundesrat however has a number of doubts as to

whether in the long term the legislation will be able to reflect the foreseeable

dynamics of innovation, as, for example, social networks are explicitly not

categorised as interpersonal communications services, although further inte-

gration of communications services in this sphere appears possible.

34. Against this backdrop and in the light of the fact that there does not at present

appear to be sufficient clarity as to the overlapping impact for example of the

forthcoming ePrivacy Directive and the Data Protection Basic Regulation in

terms of important aspects of inter-personal communications services such as

data protection and consumer protection, the Bundesrat proposes that a

structure that is fundamentally open to developments should be adopted in

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categorising OTT communications services. To that end, the Electronic

Communications Code should grant GEREK authority to use a replacement

identifier or another such suitable identifier, as could for example be stipulated

in the

relevant “GEREK

Guidelines for Electronic Communication”; this

could create a basis that would offer scope for development and for a demand-

driven approach, also concerning categorisation of OTT communications

services.

35. The Bundesrat takes the view that this kind of forward-looking structure

would in the long term afford greater scope to take a demand-driven approach

in striving to attain an equal focus on data protection, data security and

consumer services in classical telecommunications services and OTT

communications services. Furthermore the Bundesrat also draws attention to

its Resolution “Adapting

the Legal Framework to the Digital Age in the

Telecommunication Sector

–

Legal Security for Messenger Services,

Location-Based Services and

other new business models” of 22nd

April 2016

(BR-Official Document 88/16 (Decision)).

Universal Services

36. The Bundesrat welcomes the moves to modernise provisions on Universal

services by moving away from services that are no longer up-to-date, through

a focus on language-based communication services and a functional Internet

access service.

37. In the spirit of harmonisation of conditions across the EU, the Bundesrat takes

the view that the sole definition mechanism foreseen for the Member States to

establish arrangements for basic broadband coverage must not lead to a

disproportionately differentiated approach in devising the policy on basic

broadband coverage. The Bundesrat therefore requests that steps be taken in

the further stages of the procedure to ensure that policy details devised by

individual Member States are set within an EU-wide framework of provisions

and procedures.

38. The Bundesrat also advocates steps to ensure that the successful model of

market-driven broadband expansion in Germany, linked to market-compatible

funding models developed for Germany

to provide coverage for “blank spots”

in broadband provision, is not thwarted by an inexpedient design of basic

broadband coverage provision focused on universal services.

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Official Document 612/16

(Decision)

Consumer Protection

39. The Bundesrat broadly welcomes greater harmonisation of Europe-wide

regulations on consumer protection.

40. The Bundesrat points out that particular attention has already been paid to

sector-specific consumer protection in the telecommunications sector in

Germany in recent years.

41. The Bundesrat notes that a high level of sector-specific consumer protection is

guaranteed in Germany and that operators in the telecommunications industry

have adapted to the associated regulations and procedures on a regular basis,

expending considerable effort to do so.

42. The Bundesrat therefore requests that measures be taken to ensure as much

continuity and legal certainty as possible in carrying over the existing German

sector-specific consumer protection framework into the new EU-wide harmo-

nised sector-specific regulatory framework that is to be established.

43. The Bundesrat reserves the right to address and comment on the proposed

Directive again on the basis of progress in deliberations at the European level.

Direct transmission to the Commission

44. The Bundesrat shall transmit this Opinion directly to the Commission.