Bundled up again: ECJ rejects general prohibition of bundled sales in telecoms

Posted on March 11, 2010 | Filed Under communication technologies

If you have broadband internet service, do you still need traditional (PSTN) telephony service? Obviously, TP, the Polish incumbent telecoms operator, thought it would not be a good idea to give consumers too much choice on that issue, and fought a decision by the Polish NRA, which had required it to end a practice of “making the conclusion of a contract for the provision of ‘neostrada tp’ broadband internet access services contingent on the conclusion of a contract for telephone services.”

Polish national telecommunications law says that a service provider may not make the conclusion of a contract for the provision of publicly available telecommunications services contingent on the conclusion, by the end‑user, of a contract for the provision of other services or the purchase of equipment from a specific provider. This requirement is completely independent from the results of market analysis under the eclctornic communications framework and applies to all providers, regardless of market share or other specific circumstances.

The Polish Supreme Administrative Court asked the European Court of Justice, whether Community law permits the Member States “to introduce a prohibition, directed at all undertakings providing telecommunication services, on making the conclusion of a service-provision contract contingent on the purchase of another service (combined sale)  and, in particular, does a measure of this kind go beyond what is necessary to attain the objectives of the directives contained in the telecommunications package […]”

In today’s judgment C-522, Telekomunikacja Polska, the ECJ first said YES:

“the Framework Directive and the Universal Service Directive must be interpreted as not precluding national legislation, such as Article 57(1)(1) of the [Polish] Law on Telecommunications, which prohibits making the conclusion of a contract for the provision of services contingent on the conclusion, by the end‑user, of a contract for the provision of other services.”

This is because the Framework Directive and the Universal Service Directive “do not provide for full harmonisation of consumer-protection aspects. Article 20 of the Universal Service Directive, which relates to contracts concluded between consumers and providers of electronic communications services, states that it applies without prejudice to European Union rules on consumer protection and national rules in conformity with European Union law” (paragraph 29 of the judgment.

And then the Court said NO:

“However, Directive 2005/29/EC […] (‘Unfair Commercial Practices Directive’) must be interpreted as precluding national legislation which, with certain exceptions, and without taking account of the specific circumstances, imposes a general prohibition of combined offers made by a vendor to a consumer.”

This comes straight from the judgment of 23 April 2009, C-261/07 and C-299/07, VTB-VAB and Galatea.

To sum it up: member states may go beyond the framework and universal service directive to impose stronger consumer protection requirements for consumer-contracts for electronic communications services, but they must take care that these consumer protection rules do not contravene other existing Union rules. Which is, of course, what it says (in other words) in article 20, first paragraph, of the universal service directive.

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“Let us consult upon to-morrow’s business”*: consultation on radio spectrum policy programme

Posted on March 4, 2010 | Filed Under spectrum policy

Now that the interregnum is over and Neelie Kroes has taken the reins of DG INFSO, the long dry spell that we had to endure without consultation documents from the Commission finally is a thing of the past. After it started the universal service consultation started two days ago (see this post), the Commission today released a consultation document calling for input in preparation for the Radio Spectrum Policy Programme (press release). The “multiannual spectrum policy programme”, as it is called in Article 8a, paragraph 3, of the Framework Directive, as revised by Directive 2008/140/EC (”Better Regulation” Directive), “shall set out the policy orientations and objectives for the strategic planning and harmonisation of the use of radio spectrum in accordance with the provisions of this [ie: Framework] Directive and the Specific Directives.”

In Addition, a “Spectrum Summit“, jointly organized by Parliament and Commission, will be held on 22 and 23 March 2010.

*) Shakespeare, King Richard III, Act V, Scene 3

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Broadband for all? Universal service and “Europe 2020″

Posted on March 3, 2010 | Filed Under public services

Yesterday, the European Commission started a consultation on universal service, focusing - without too much enthusiasm - on the question of whether or not to include broadband in the scope of universal service obligations in telecommunications. And today the Commission presented its proposal for the Europe 2020 Strategy, including the digital agenda as one of its seven “flagship initiatives”; in the press release this is summed up like this:

“A digital agenda for Europe - delivering sustainable economic and social benefits from a Digital Single Market based on ultra fast internet. All Europeans should have access to high speed internet by 2013.”

In the full proposal this is broken down into the following targets:

  • broadband access for all by 2013,
  • access for all to much higher internet speeds (30 Mbps or above) by 2020, and
  • 50% or more of European households subscribing to internet connections above 100 Mbps.

How this will be achieved is not spelled out in great detail, but in rather general and well rehearsed terms (e.g.: stable legal framework, efficient spectrum policy, borderless and safe EU web services and digital content markets, balanced regulatory framework with clear rights regimes, fostering of multi-territorial licences, actions in support of digital literacy and accessibility, etc.). But then it is only a broad strategy, to be endorsed in principle (”overall approach and EU headline targets”) by the European Council on 25/26 March 2010, and then needs to be broken down into more detailed targets and actions.

As for the universal service consultation, I found it interesting that the Commission obviously saw the need to hit back at the European Parliament: in the consultation document the Commission (which has not been very keen on addressing universal serive at all, much less on reforming it, see for instance this post) first recounts that it had wanted to keep the issue of universal service outside the scope of the recent “review”, but …

“This notwithstanding, the co-legislator deemed it necessary, in the light of developments, to address one particular aspect of regulatory flexibility by amending the current recital in the Directive dealing with functional internet access. In particular, the new recital seeks to allow Member States to define nationally the minimum data rates of the connection ‘which are sufficient to permit functional internet access […] taking due account of specific circumstances in national markets, for instance the prevailing bandwidth used by the majority of subscribers in that Member State, and technological feasibility, provided that these measures seek to minimize market distortion.’ However, this amendment sets out a new principle only in a recital of the Amending Directive without corresponding changes in the body of the legislative text, which gives rise to questions of interpretation and which might affect legal certainty.” (emphasis added)

And while the Commission may be right in terms of the legal issues involved, the wording does not seem particularly polite or respectful towards the European Parliament. I am quite sure this will not go unnoticed by the relevant MEPs.

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Don’t believe the FT: Germany’s top court DID NOT “overturn EU data law”

Posted on March 2, 2010 | Filed Under communication technologies

Is this “quality journalism”? The Financial Times reports that “Germany’s top court overturns EU data law”; the article goes on to claim that the Court “has struck down as ‘inadmissible’ a central piece of European security legislation.” Which is, of course, pure nonsense and contrary to the facts (as you know if you read my previous post or most online news sources). The Associated Press at least got the right direction, even if it doesn’t seem to be familiar with basic principles of EU law, as it claimed that “the court upheld the EU directive as necessary to fight terror”, which is beyond even a German court’s competence.

Update (3 March 2010): Meanwhile, the Financial Times has revised its article; the part about the court having “struck down… a central piece of European security legislation” is now gone. However, the wrong headline is still there, and the (new) message that the “highest court in Germany ruled on Tuesday that a central plank of antiterrorist security legislation in the European Union, requiring the storage of at least six months’ worth of telephone and internet data, was contrary to the country’s fundamental law” is wrong again, because the German Constitutional Court explicitely said the exact opposite: the directive requiring storage of data was not the problem, rather the rules for access to and use of the data.

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“That poor retention could not so much hold”*: German data retention unconstitutional

Posted on March 2, 2010 | Filed Under communication technologies

Today, the German Constitutional Court declared the German laws implementing the data retention directive unconstitutional (not compatible with article 10 of the “Grundgesetz” [Basic or Fundamental Law, ie the German constitution]); see the press release (at the moment only in German) and the full judgment (only in German).

While it certainly delivered a wide reaching and substantial judgment, the German Constitutional Court does not take issue with the data retention directive, only with the specific implementing instruments in Germany. The Court explicitely refrained from a reference for a preliminary ruling by the ECJ, stating that the data retention directive is not per se incompatible with the privacy of telecommunications as enshrined in the German constitution. The judgment echoes - and quotes - the ECJ judgment C-301/06 Ireland v. Council and Parliament (see this post), stressing that the provisions of the data retention directive only ask for the retention of data by service providers, but do not govern access to data or the use thereof by the police or judicial authorities.

The German Constitutional Court then focuses on the principle of proportionality, which requires a sound statutory basis for data retention, taking into account the specific severity of this intrusion into the fundamental right of telecommunication privacy. The Court calls for sophisticated and perfectly clear rules regarding data security, data use, transparency and legal protection.

Regulations for data security have to provide a particularly high standard of safety, taking into account technical developments and constantly adapting to new expertise and insight. The Court rules out any “balancing” between data security and economic viewpoints. In other words: even very high costs cannot serve as an excuse for not implementing technically feasible measures to enhance data security.

And above all: the Court holds that access and use of stored data can only be considered proportionate, if they serve tasks of paramount importance for the protection of legal interests (”überragend wichtige Aufgaben des Rechtsgüterschutzes”).

*) Shakespeare, Sonnet CXII

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“it more concerns the Turk”*? - New reference to ECJ over Kurdish TV-Channel

Posted on February 25, 2010 | Filed Under digital content

On 24 February 2010 the German Federal Administrative Court decided to refer questions concerning the Audiovisual Media Services Directive (AVMSD) to the European Court of Justice for a preliminary ruling. The German Federal Ministry of the Interior had banned the activities of two companies under Danish law, which provide - on the basis of a Danish licence - a TV programme mainly in the Kurdish language. The programme is distributed via satellite across Europe and to Turkey and the Middle East. The injunction was based on the German law on associations, and the reasons for the ban included that the broadcasting of the TV programme was directed against the idea of international understanding. The Ministry also stated that the station supported the armed struggle of the Kurdish Workers Party against the Turkish state. 

The Federal Administrative Court came to the conclusion that the injunction would be justified under national law. However, it is questionable whether the ban would be precluded by the AVMSD, which in its Article 3b provides that “Member States shall ensure … that audiovisual media services provided by media service providers under their jurisdiction o not contain any incitement to hatred based on race, sex, religion or nationality.”

Compliance with these Community [now: Union] minimum standards is enforced by the transmitting State (in this case, Denmark). The receiving State (Germany) must not exercise “secondary control” (see ECJ 9 July 1997, C-34/95, C-35/95, C-36/95, Konsumentombusmannen ao, para 34: “Thus the Directive does not in principle preclude application of national rules with the general aim of consumer protection provided that they do not involve secondary control of television broadcasts in addition to the control which the broadcasting Member State must carry out.)

The German Federal Administrative Court considered that the German Ministry of the Interior might have exercised such secondary control of a TV programme that was transmitted without any objections by the competent authorities of Denmark as the transmitting state.

As the decision of the Federal Administrative Court is not published yet, this blogpost is based on the Court’s press release (here, in German). I am pretty sure that the Court’s questions do not yet in fact concern the (revised) AVMSD, but are based still on the “Television Without Frontiers”-version of the directive. Even so, the relevant principles also apply to the new AVMSD.

*) Shakespeare, Othello, Act I Scene 3

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This year’s list of the “top 3″ pending cases at the ECJ

Posted on February 18, 2010 | Filed Under communication technologies

At the beginning of last year, I provided an outlook on the telecoms and broadcasting cases pending at the ECJ which I thought were the most important and which were likely to be deicded in 2009. Taking a quick look back at this post, I can safely say that all four cases - C-202/07 P France Télécom v. Commission, C-424/07 Commission v. Germany, C-301/06 Ireland v. Council and European Parliament, and C-222/07 UTECA - were decided (and in the two cases where I hinted at the likely outcome I was right); you find more on the cases going to our list of decided cases.

This year I wanted to offer my selection of “top cases” together with some other news from the Court - but week by week went by without any important telecoms or broadcasting case scheduled. As of today, finally, I can at least point to two upcoming judgments: on 11 March 2010 the competition case C-522/08 Telekomunikacja Polska v. UKE, concerning bundled offers, will be decided and on 18 March 2010 the case about mandatory conciliation attempts for telecoms customers (C-317 /08, C-318/08, C-319/08 and C-320/08, Alassini, Califano, Iacono, Multiservice) is due.

Not really covered by this blog, but of overriding interest for anyone using the internet, of course is the IP (trademark infringement) case of C-236/08, C-237/08, C-238/08 Google France, where the Grand Chamber of the ECJ will deliver judgment on 23 March 2010.

And coming to my list of the top three cases where I expect ECJ decisions this year*), I have to admit that it was hard even to come up with three fairly interesting cases:

At number three, a state aid case from the General Court (formerly known as the Court of First Instance) - after six long years, a decision concerning the recapitalisation of France Télécom should be imminent: T-425/04 France v. Commission, T-444/04 France Télécom v. Commission, T-450/04 Bouygues v. Commission, T-456/04 AFORS Télécom v. Commission.

At number two, the validity of the roaming regulation (or more precisely, its article 4) is to be decided in the case C-58/08 Vodafone. In his opinion, advocate general Poaires Maduro seemed to suggest that the validity might depend on the period of time that the price control regime is applied (I wrote about that in more detail [in German]  here at e-comm). I doubt that the Court will rely too much on this point, as it might be especially tricky considering that the time limit of the regulation has been extended recently.

And at number one, the Deutsche Telekom Magenta margin squeeze case C-280/08 P Deutsche Telekom AG should finally end more than a decade of arguing about the relationship between sector specific regulation and general competition law. And while you never know about any “technical” issues or formalities, in substance the CFI’s judgment seems sound to me and I would be surprised if the ECJ would turn it over (on the merits).

As in 2009, interesting broadcasting cases are in even shorter supply, and I doubt that C-403/08 Football Association Premier League and Others will come up for decision already this year. Maybe at least the challenges to the British and Belgian lists of events of ‘major importance to society’ could be decided in 2010: T-385/07 FIFA v. Commission,  T-55/08 UEFA v. Commission and T-68/08 FIFA v. Commission.

—

*) I have to stress that this is a subjective estimate, based on experience, but not on inside information from the ECJ.

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Valuing action over talk: Neelie Kroes knows why

Posted on January 29, 2010 | Filed Under digital content

Today, BEREC officially started its work. And while it is certainly not a “superagency”, I do not believe it is just “a powerless talking shop”. And, for that matter, it definitely is not an EU telecoms regulator either, even if Commissioner Reding called  it just this in her speech today. Reding was not the only Commissioner present, she was joined by her soon-to-be successor, Neelie Kroes, who in her speech emphasised she really values action over talk.

Looking at the video of her hearing in the European Parliament, I do understand this value-chain: talk is not her strongest point. Take a look at the Video of the hearing, and for instance start at 18:04:24, when the Chairwoman of the Committe on Culture and Education, Doris Pack,  asks Kroes for her defnition of a balanced dual broadcasting-system and the role of public service media. The Chairman of the hearing gives Kroes the floor, saying “Ms Kroes - straight question, straight answer!” And then comes Kroes’ answer:

Neelie Kroes: It is a very clear question and we are aware that depending on the public broadcasting services we try to deal with principles all over the place the same, and tailor-made approaches; but in itself we should be quite clear, the definition has to be as clear as crystal, for otherwise we are not getting a real result out of our discussions. And what we did in the past in competition, in competition issues, was, I imagine, quite acceptable also for you, to find a way in which the diversity is still there and that is a big issue, that is one of those issues that we are fond of in Europe and that is still a competitive market in which at the end of the day the consumer is able to pick out what he or she is preferring.

Everything clear as crystal? I do think Commissioner Kroes could learn a thing or two from the legendary Sir Humphrey of the BBC-series “Yes, Minister”, who put it much better:

Jim Hacker: “When you give your evidence to the Think Tank, are you going to support my view that the Civil Service is over manned and feather-bedded, or not? Yes or no? Straight answer.”
Sir Humphrey: “Well Minister, if you ask me for a straight answer, then I shall say that, as far as we can see, looking at it by and large, taking one thing with another in terms of the average of departments, then in the final analysis it is probably true to say, that at the end of the day, in general terms, you would probably find that, not to put too fine a point on it, there probably wasn’t very much in it one way or the other. As far as one can see, at this stage.”
Jim Hacker: “Is that Yes or No?”
Sir Humphrey: “Yes and no.”
Jim Hacker: “Supposed you weren’t asked for a straight answer?”
Sir Humphrey: “Then I should play for time, Minister.”

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The telecoms package in the Official Journal

Posted on December 18, 2009 | Filed Under communication technologies

This is just to alert you to the EU Official Journal of today with the publication of the new telecoms package. Here are the links:

In addition to the regulation and the directives there is also the Commission Decision 2009/978/EU of 16 December 2009 amending Decision 2002/622/EC establishing a Radio Spectrum Policy Group and the Commission declaration on net neutrality (which is also published as an addendum to the directive 2009/140/EC).

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An encouraging obligation? HFSS food and drink advertising and codes of conduct under the Audiovisual Media Services Directive

Posted on December 10, 2009 | Filed Under national regulatory authorities, events / publications

One of the more recent arrivals on the scene of regulatory concern for audiovisual policymakers and supervisory bodies is the promotion of unhealthy foodstuffs to children which may have adverse effects on their physiological well-being and development. As one among several factors feeding the development of childhood obesity as part of a wider obesity epidemic (information from the World Health Organization), marketing practices have increasingly come under scrutiny and regulatory authorities as well as elected representatives have directed their attention toward the issue. In Europe, already before the process of revising the regulatory framework for television broadcasting had come under way, countries like the UK were therefore considering regulatory action to address the endangerment of public health by food and drink advertising notably of products that are high in fat or salt or sugar (HFSS) (for a summary of the evidence to which UK Government policy responded in 2003, see this note by the Parliamentary Office of Science and Technology; for recent UK evidence regarding child obesity, see here and here).

With the adoption of the Audiovisual Media Services Directive, the diverse initiatives at the national level were complemented by a general European framework provision on advertising of unhealthy food and drink set out in Article 3e (2) AVMSD [the ‘food provision’] stipulating that

Member States and the Commission shall encourage media service providers to develop codes of conduct regarding inappropriate audiovisual commercial communication, accompanying or included in children’s programmes, of foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular those such as fat, trans-fatty acids, salt/sodium and sugars, excessive intakes of which in the overall diet are not recommended.

The obligation thus made incumbent on the Commission and the Member States is similar to that of Article 3c of the new Directive, which requires national authorities to encourage providers to increase accessibility of their services to users with a hearing or visual disability. While both provisions target very tangible characteristics of both linear and non-linear audiovisual media services, the nature of the obligations that they impose inevitably leads to questions about their likely effectiveness. Read more

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