EECC – a far-reaching reform in the telecom sector. Interpretation and implementation.
An article by Diana Gavril
In the context of creating a European Digital Single Market, the European Electronic Communications Code (“EECC”) comes to modernize the European regulatory framework for electronic communications, reflecting the reality of today’s electronic communications market. EECC entered into force in December 2018 and had to be transposed by the Member States until 21 December 2020 into national law. Romania failed to meet the deadline and has not yet transposed the EECC.
EECC’s main objectives include (i) promoting connectivity and investment in very high-speed, high-capacity networks, such as optical fiber and 5G; (ii) enhancing consumer’s protection and updating the rules on universal service; (iii) ensuring higher standards of communication services.
1.What about ECS? What are ICS?
One of the key changes of EECC is the introduction of an expansive definition of electronic communication services (“ECS”), which includes the following types of services: (a) Internet access services; (b) interpersonal communications services (“ICS”) and (c) conveyance of signals. The novelty here is the inclusion of ICS within the scope of ECS. ICS means a service normally provided for remuneration that enables the direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient(s) and does not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service[1].
According to the above definition of ICS, two aspects are important to be emphasized:
▶ the requirement for ECS, and implicitly ICS, to be normally provided for remuneration remains part of the definition; however, EECC expressly provides for a broad interpretation of such requirement – the concept of remuneration should include situations where:
▸the provider of service requests and the end-user provides personal data directly or indirectly to the provider;
▸the end-user allows access to information without actively supplying it, such as personal data or other automatically generated information;
▸the end-user is exposed to ads as a condition for gaining access to the service, or the service provider monetizes personal data it has lawfully collected;
▶ if the communication element of a service is a minor ancillary feature intrinsically linked to another service, then such an element does not fall under the scope of ICS (g. a chat feature which is part of a video game).
ICS are further subdivided into number-based and number-independent services, depending on whether the service connects with or enables communications with publicly assigned numbering resources. Thus, VoIP, emails, SMS, MMS are now services which should be provided taking into account the EECC rules, given that they would fall under the scope of ICS. It is also important to mention that although EECC seems to provide for lighter regulation of number-independent ICS compared to number-based ICS, many of the core regulatory requirements will apply to both types of ICS.
As we may see, the EECC, compared with the former telecom framework, adopts a more functional understanding of ECS and does not define such services merely based on technical features – the conveyance of signals. In this context, EECC intends to level the playing field and extends the rules to providers that were not previously subject to ECS rules, such as over-the-top (OTT) players, which are generally providers of services over the Internet.
2. Conclusion
EECC accurately reflects the fast growth of communications over the Internet. Given the inclusion of ICS within the definition of ECS, more and more Internet-based service provides, including OTT service provides, which were, until now, outside the scope of the regulatory regime, have to understand and comply with the new set of rules on electronic communications.
As mentioned above, EECC has not yet been transposed by Romania. However, there is currently a draft under debate, which is generally in line with the EECC and largely transposes all its provisions.
The implementation draft amends and supplements the regulations in the field of electronic communications, mainly the Government Emergency Ordinance no. 111/2011 on electronic communications and aims to establish measures to facilitate the development of electronic communications networks.
The critical changes brought by the transposition of the EECC into national legislation concern: (i) redefining ECS in regard to ICS, (ii) the general authorization regime, (iii) the limited resources regime (radio frequency spectrum, numbering resources ), (iv) the security of electronic communications networks and services, (v) portability and transfer to another Internet service provider, (vi) end-user rights, (vii) termination fees, (viii) facilitating the development of electronic communications networks, (ix) the “My ANCOM” service.
Nevertheless, it remains to be seen whether this piece of legislation will suffer additional changes until its official publication and entry into force. Depending on how each member state transposes the EECC, including Romania, each entity providing an ECS may need to notify the relevant Member State regulatory entity, ANCOM in our jurisdiction, in order to receive a general authorization to lawfully provide such services within that Member State.
[1] Article 2 (5) of DIRECTIVE (EU) 2018/1972 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2018 establishing the European Electronic Communications Code (EECC).
