The member states of the European Union (EU) has recently adapted their regulations of electronic communications, including telecommunications, in accordance with the new European Electronic Communications Code Directive (the “EECC Directive”) of the European Union (EU). Its full title is Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code.
The directive aims to keep pace with the rapid technological developments and the convergence of product and service innovations and developments of the telecommunication sector. In doing so, the directive both applies to conventional telephony services as well as modern “over the top” services, including, for example, Skype, Zoom and WhatsApp. Such “over the top” services are continuously being used more and becoming more important. This development has in particular increased and gained force during the current period in which COVID-19 and its effects have changed the ways people are living, working, communicating and receiving, storing, accessing and exchanging information and data. Continuously growing and record numbers of people have been moving online for business and pleasure and shifted to remote working and entertainment.
An updated and appropriate regulation of the telecommunication area is also an important element in the climate action and the aim to reduce emissions of carbon dioxide (CO2) and other greenhouse gases. New data-driven solutions and services can contribute to reduced emissions of CO2. Just to mention a few examples, this includes services which create the basis for intelligent energy management, production, transmission and consumption, and services which accelerate improved processes in the agriculture, industry and transport sectors. Such systems, and all other systems based on or using exchange of digital data, require a robust digital infrastructure.
The EECC Directive generally aims to consolidate the former EU regulation of these matter, including the directives comprised by the 2002 telecoms package and the 2009 reform, except for the Communication Privacy Directive, which is reviewed and updated separately.
The aim of the EECC Directive is, among other matters, to stimulate competition and increase investments in new and very high capacity networks, including especially the fifth generation of mobile telecommunications (5G) and new fibre networks. The aim of the EECC Directive is also to create an updated and symmetric regulation of all network providers and to provide a level playing field between providers of lesser and greater importance. To that effect, the EECC Directive comprises both traditional telecommunications companies and over-the-top providers (OTT’s), including for example Facebook’s Messenger, WhatsApp, Zoom and Skype etc.
The inclusion of OTT’s entails, among others, that any listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users requires the consent of the users concerned. Additionally, the OTT’s are subject to limitations on the use of traffic and location data, including, for example, that traffic data must be erased or made anonymous unless it is needed for billing purposes (and only for the period during which the bill may be challenged).
The EECC Directive strengthens consumer rules and protection and aims to make it easier for users (consumers) to switch between service providers and offers better protection, for example in relation to users subscribing to bundled services. The EECC Directive also aims to ensure that affordable and adequate broadband internet access is available to all users (consumers), irrespective of their location or income.
The Danish implementation of the EECC Directive
Denmark has implemented the EECC Directive into Danish law by Act no. 1833 of 8 December 2020. The title of the act is act on amendment of the electronic communications networks and services act, the radio frequency act and various other acts (the “Amendment Act”). The Amendment Act entered into force on 21 December 2020.
The Amendment Act amended the Danish Tele Act, that is the consolidated act no. 128 of 7 February 2014 on electronic communications networks and services, and other acts. Accordingly, the Amendment Act did not entail a repeal of the Tele Act. The Danish implementation of the EECC Directive instead entailed an amendment of the Tele Act to the relevant extent.
The Amendment Act contains provisions on the following general matters, among others:
Stimulating investment incentives for companies in digital infrastructure through increased competition and greater predictability of the regulation
The Amendment Act imposes a number of changes to the existing regulation to increase the predictability for the telecommunications industry. The predictability is increased, in particular, through codification of principles and transparent procedures designed to enable industry operators, including telecommunications network owners and service providers, to make long-term investment decisions.
More harmonized radio frequency management and greater predictability in relation to the allocation of frequency licences
The Amendment Act introduces, among others, a minimum duration of 20 years for licences to use radio frequencies. This licence period is harmonized at EU level for wireless broadband, that is typically the radio frequencies for mobile communication services, which are allocated on the basis of frequency auctions.
Stronger consumer protection ensuring transparency and support for consumer choice
Under the Amendment Act, the regulation of consumer protection is strengthened, including, among others, in relation to the protection of consumer information. In relation to future agreements between consumers and providers, it follows from the Amendment Act that the authorities may require that a summary of any such agreement shall be made by the provider and provided to the consumers prior to entering into an agreement. The summary of the agreement shall enable the consumer to easily review the agreement and compare between providers and services.
Promoting the roll-out of digital infrastructure, including easier access to establish wireless access points with limited range for use of, among others, 5G networks
Under the Amendment Act, public authorities and private entities controlling physical infrastructure shall meet reasonable requests for access thereto from a provider of electronic communications networks or services wishing to set up limited range wireless access points. The purpose is to utilize existing physical infrastructure more effectively by removing regulatory barriers to setting up wireless access points as much as possible.
Number-independent interpersonal communications services
In accordance with the EECC Directive, the Amendment Act regulates number-independent interpersonal communications services. Such services generally comprise services which does not connect with publicly assigned numbering resources, including for example traditional telephone numbers. As most over-the-top (OTT) services does not connect with numbering resources, most OTT services will fall within this category, including for example WhatsApp and Facebook’s Messenger.
Under the directive, number-independent services are comprised by the general and main term “electronic communications services”. This is different under the Amendment Act. Under the Amendment Act, number-independent services are to some extent regulated separately and not included in the general definition of “electronic communications services”. This is because number-independent services under the Amendment Act only are subject to a lessor part of the provisions and obligations under the Amendment Act compared to electronic communications services generally. For example, the provision of number-independent services does not require any individual or general authorisation from the Danish authorities. Furthermore, users of number-independent services generally does not have to be provided with the ability to reach emergency services through the respective service.
A more detailed review of the EECC Directive and the implementation thereof in Denmark can be read here: https://denmark.dlapiper.com/en/news/electronic-communication-networks-and-services