Competition in electronic communications networks and services
Ensure that every undertaking has the right to provide electronic communications services or put in place, extend or exploit electronic communication networks without restriction.
Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communication networks and services [Official Journal L 249, 17.09.2002].
Context
This directive continues the trend of liberalising the communications sector, launched by the Commission in 1999. It supplements the European regulatory framework applicable to electronic communications networks and services put in place by a General Directive and four Specific Directives of 7 March 2002.
Clarifications of the concept of electronic communications
Under the new Directive the terms “electronic communications” and “electronic communications networks” include all electronic communications services and/or networks which are concerned with the conveyance of signals by wire, radio, optical or other electromagnetic means, including therefore, the broadcasting of radio and television programmes. However, the directive excludes from the regulatory framework services providing or exercising editorial control over content transmitted, using electronic communications networks and services. This clarification confirms the distinction made by the new regulatory framework between services and content transmitted by means of networks and services.
Abolition of exclusive and special rights for electronic communications networks and services
The key provision of the directive provides for the abolition of exclusive or special rights granted by the Member States for the establishment and/or the provision of electronic communications networks, or for the provision of publicly available electronic communications services. Before 24 July 2003, each Member State must take the necessary measures to guarantee each undertaking the right to provide services or exploit networks, without discrimination, in accordance with a general authorisation regime which replaces the licensing system.
Only a reasoned opinion on the part of the competent regulatory authority within the framework of a general request for authorisation may prevent an undertaking from providing services or networks.
Vertically integrated public undertakings
Member States must ensure that vertically integrated public undertakings which provide electronic communications networks and which are in a dominant position do not discriminate in favour of their own activities.
Other services and networks
The trend to liberalisation also extends to directory and directory enquiry services, frequencies, television satellites and cable networks with the same objective of abolishing any unjustified restriction which might hinder the development of competing services.
Act
Member States must, by 25 July 2003, provide the Commission with the information enabling it to confirm that these provisions have been complied with and effectively implemented.
Directive 2002/77/EC
The EU’s new digital single market strategy
A digital single market would enable consumers and businesses to benefit fully from the opportunities offered by the internet and digital technologies.
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – A digital single market strategy for Europe (COM(2015) 192 final of 6.5.2015)
It sets out the strategy for a digital single market, one of the European Commission’s 10 policy priorities in its agenda for jobs, growth, fairness and democratic change.
KEY POINTS
The strategy sets out 16 targeted actions based on 3 pillars.
1.Better access for consumers to digital goods and services across Europe. Under this pillar the Commission will propose:
rules to make cross-border e-commerce easier;
a review of the Regulation on Consumer Protection Cooperation to enforce consumer rules more quickly and consistently;
more efficient and affordable cross-border parcel delivery;
to end unjustified geo-blocking* thus increasing choice and access for European online consumers;
to identify potential competition concerns affecting European e-commerce markets;
a modern, more European copyright law;
a review of the Satellite and Cable Directive to assess whether its scope should be broadened to include broadcasters’ online transmissions;
reduce the administrative burden to businesses caused by different VAT regimes.
2.Creating the right conditions and a level playing field for digital networks and innovative services to flourish. The Commission proposes:
an overhaul of EU telecoms rules;
to review the audiovisual media framework to make it fit for the 21st century;
analyse the role of online platforms such as search engines, social media etc., in the digital single market and assess how to tackle illegal content;
increase trust and security in digital services, particularly the handling of personal data. This will include a review of the e-Privacy Directive;
a partnership with industry on cybersecurity covering technologies and online network security.
3.Maximising the growth potential of the digital economy. The Commission will:
propose a ‘free flow of data initiative’ to promote the free movement of data in the EU as well as a ‘European cloud’ initiative;
define priorities for standards and interoperability of devices, applications, data repositories, services and networks which are critical to the digital single market;
support an inclusive digital society where citizens have the right skills to seize the opportunities of the internet and boost their chances of getting a job.
The Commission will complete these actions by the end of 2016.
For more information, see digital single market on the European Commission’s website.
Geo-blocking: where online customers are either denied access to a website based on their location or are re-routed to a local store with a different price.
RELATED ACT
Commission Staff Working Document – A digital single market strategy for Europe – Analysis and evidence accompanying the document communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – A digital single market strategy for Europe (SWD(2015) 100 final of 6.5.2015)
Media freedom and pluralism in the digital environment
Media freedom and pluralism (i.e. a diversity of views) are central to the European Union’s Charter of Fundamental Rights, and vital in ensuring transparency and accountability in a democracy. EU governments have adopted conclusions aimed at addressing the challenges posed to these core values in the digital age.
Conclusions of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on media freedom and pluralism in the digital environment [Official Journal C 32 of 4.2.2014].
SUMMARY
A number of challenges to media freedom and pluralism have been noted over the last years in the European Union. This matter is also important to EU governments, whose credibility in international negotiations relies on a high level of freedom of the media.
While the digital age can bring enhanced freedom of expression and can invite a diversity of opinions, new challenges arise in the way people access and assess information. Noting various recent instances where media freedom and pluralism have come under attack, as evidenced in court cases, official enquiries and parliamentary debates, EU governments, acknowledging the important work of the Council of Europe, adopted conclusions on the subject in November 2013.
EU Member States agreed to take measures to:
ensure the independence of their audiovisual regulatory authorities, in accordance with the EU’s audiovisual media services directive, which is the EU’s regulatory framework for audiovisual media services;
ensure genuine transparency of media ownership;
safeguard the right of journalists to protect their sources and to protect journalists from undue political and economic influence;
prevent possible negative effects of excessive concentration of media ownership, depending on their national context.
Welcoming its Green Paper Preparing for a fully converged audiovisual world, EU governments invited the European Commission to:
continue supporting projects aimed at improving the protection of journalists and media practitioners;
continue to support the independent Media Pluralism Monitor, a tool for assessing risks to media pluralism in the EU;
encourage cooperation between Member States’ audiovisual regulatory authorities and promote best practice with regard to the transparency of media ownership.
ACTS
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (audiovisual media services directive) (Official Journal L 95 of 15.4.2010).
European Commission Green Paper Preparing for a fully converged Audiovisual world: growth, creation and values (COM(2013) 231 final of 24.4.2013 – not published in the Official Journal).
Audiovisual Media Services Directive (AVMSD)
SUMMARY OF:
Directive 2010/13/EU on audiovisual media services (Audiovisual Media Services Directive)
It aims to create and ensure the proper functioning of a single European Union market for audiovisual media services*, while contributing to the promotion of cultural diversity and providing an adequate level of consumer and child protection.
KEY POINTS
The EU’s Audiovisual Media Services Directive (AVMSD) governs EU-wide coordination of national legislation on all audiovisual media, both traditional TV broadcasts and on-demand audiovisual media*services.
Directive (EU) 2018/1808 amends and updates the AVMSD, as part of the digital single market strategy, in order to:
extend certain audiovisual rules to video-sharing platforms as well as audiovisual content shared on certain social media services;
introduce flexibility on restrictions applicable to TV;
strengthen the promotion of European content;
protect children and tackle hate speech more effectively;
reinforce the independence of national regulatory authorities.
EU countries must ensure freedom of reception and must not restrict audiovisual media transmissions from other EU countries. Stricter rules than those in this directive can be applied by countries in certain circumstances and following specific procedures. National authorities must encourage co-regulation and self-regulation through national codes of conduct.
Advertising
Audiovisual advertising must be readily recognisable as such, and must not:
use subliminal techniques;
prejudice respect for human dignity;
include or promote discrimination;
encourage behaviour prejudicial to health or safety;
encourage behaviour grossly prejudicial to the protection of the environment.
Banned audiovisual advertising includes:
cigarette and tobacco advertising, including for electronic cigarettes and refill containers;
alcohol advertising aimed specifically at minors or encouraging immoderate consumption, among a range of restrictions;
advertising for prescription medicines and treatment;
advertising exploiting children’s inexperience or credulity and trust in adults, or unreasonably showing minors in dangerous situations.
Additional requirements cover sponsorship and product placement, and broadcasters have increased flexibility over advertising time, with a new limit of 20% within the period between 6.00 and 18.00 and the period between 18.00 and 24.00.
Protecting children
EU countries must take action to ensure that programmes which could ‘impair the physical, mental or moral development of minors’ are only made available in such a way that minors will not normally hear or see them, through selecting an appropriate time for broadcast, age verification tools or other technical measures proportionate to the potential harm. The most harmful content, such as gratuitous violence and pornography, is subject to the strictest measures.
Minors also benefit from a higher level of protection online: video-sharing platforms must put in place measures to protect minors from harmful content.
Product placement is also prohibited in children’s programming. EU countries should encourage the use of self- and co-regulation through codes of conduct regarding inappropriate advertising in children’s programmes, for foods and beverages high in fat, salt and sugar.
Hate speech
Audiovisual media services must not contain incitement to violence or hatred directed against groups or a member of a group based on discrimination on grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age, sexual orientation or nationality, in accordance with Article 21 of the EU Charter of Fundamental Rights.
Public provocation to commit a terrorist offence is also banned.
Accessibility
Providers must make their services continuously and progressively more accessible to persons with disabilities and are encouraged to develop accessibility action plans to achieve this.
EU countries must designate an online point of contact to provide information and receive complaints regarding accessibility issues. Public emergency information provided through audiovisual media services, for example in natural disaster situations, must be accessible to persons with disabilities.
Video-sharing
Video-sharing platform service* providers must put in place appropriate measures to protect minors from content which could affect their physical, mental or moral development, and the general public from incitement to violence or hatred, or public provocation to commit a terrorist offence.
Such measures include, among others:
mechanisms for users to flag non-compliant content and effective procedures for user complaints;
providing effective media literacy measures and tools and raising users’ awareness of those measures and tools.
Video-sharing platform service providers have the same obligations as audiovisual service providers in respect of advertising and other content restrictions, taking into account the limited control they can exercise over advertising on their platforms that is not marketed, sold or arranged by them.
Promoting European and independent works
Providers of on-demand audiovisual media services must have a minimum 30% share of European works in their catalogues and ensure prominence of such works.
BACKGROUND
The original AVMSD has applied since 5 May 2010. The changes introduced by Directive (EU) 2018/1808 have applied since 18 December 2018 and has to become law in the EU countries by 19 September 2020.
Audiovisual Media Services Directive (AVMSD) (European Commission)
Digital single market (European Commission).
Audiovisual media service: a service providing programmes, under the editorial responsibility of a media service provider, to the general public, to inform, entertain or educate, using electronic communications networks, either broadcast or on-demand.
On-demand audiovisual media service: an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider.
Video-sharing platform service: a service offering programmes, user-generated videos, or both, to the general public, for which the video-sharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, using electronic communications networks, and the organisation of which is determined by the video-sharing platform provider, including by use of automatic means or algorithms, in particular by displaying, tagging and sequencing.
DOCUMENT
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, pp. 1-24)
Successive amendments to Directive 2010/13/EU have been incorporated in the original document. This consolidated version is of documentary value only.
Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA (OJ L 88, 31.3.2017, pp. 6-21)
Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions — A digital single market strategy for Europe (COM(2015) 192 final, 6.5.2015)
Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, pp. 391-407)
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, pp. 33-50)
Actions to reduce the installation costs of high-speed digital networks
This EU directive aims to make it easier and cheaper to roll out high-speed electronic communications networks (i.e. fast broadband Internet).
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.
SUMMARY
The aim of the directive is to facilitate and promote the roll-out of high-speed digital networks (i.e. fast broadband Internet). The major obstacle here is a financial one, as the installation costs of the infrastructure account for up to 80 % of the total costs (e.g. digging up roads to lay down fibre broadband).
Broadly speaking, two approaches are offered:
—promote the reuse of existing physical infrastructure, and
—create the conditions for more efficient installation of new physical infrastructure .
The main pillars of the directive are as follows.
1 Access to physical infrastructure
EU countries have to remove all legal obstacles that may hold back network operators from giving telecoms operators access to their physical infrastructure. Network operators are required to give access to their physical infrastructure, on reasonable terms and conditions, including price.
As per the directive, network operators are providers of public communications networks, but also utilities, be it for energy, public heating, water, waste water or transport.
2. Coordination of construction work
EU countries have to remove all legal obstacles that may hold back network operators from negotiating agreements with telecoms operators in order to coordinate their construction work. If this work is financed from the public purse, network operators have to meet any reasonable and timely request for coordination as long the extra cost is paid by the telecoms operator. In this case, network operators maintain control over the work.
3. Transparency
In order to improve coordination, EU countries must ensure that the undertakings deploying broadband have access to a minimum amount of information about the existing physical infrastructure, such as:
—location,
—type/use of infrastructure,
—a single information point.
Providing such information will ensure that the costs of these projects are kept to a minimum (for example by accessing physical infrastructure that already exists and by coordinating engineering works). This access may be limited for the following reasons:
—security of the networks and their integrity,
—national security,
—public health or safety,
—confidentiality or business secrets.
4. Permit granting
EU countries have to ensure that all procedures for granting permits must be available via a single information point (preferably by electronic means). Permit decisions should be made within 4 months and any refusal to grant a permit should be fully justified.
5. Buildings ready to access high-speed networks
New buildings and major renovations must be equipped with physical infrastructure (such as mini-ducts) capable of hosting high-speed networks. Constructions must have an access point, easily accessible by the providers of public communications networks. This has to be done in a technology-neutral way (i.e. the infrastructure should neither require nor assume a particular technology).
Exemptions are possible (for example for monuments or holiday houses).
The providers must have the right to reach the access point under fair and non-discriminatory terms and conditions.
EU countries must put in place out-of-court procedures for the timely resolution of disputes arising from the application of the directive.
REFERENCES
Directive 2014/61/EU