A muppet by any other name … BERT, GERT, BoR and the split-identity I/ERG

Posted on March 12, 2009 | Filed Under communication technologies

The Telecoms Package is on its way: and while a few contentious issues remain, pretty much everyone - Council, Commission, Parliament - seems to press for reaching a compromise for Parliament’s second reading, so as to avoid the conciliation procedure. As things are moving quickly and I have no inclination to speculate on every possible change in every possible amendment, I have refrained from writing much about it - I wait for the final texts to be adopted. Meanwhile, one can always take a look at Parliament’s procedure files and read the documents there:

  • here for the “Citizens’ Rights”-Directive,
  • here for the “Better Regulation”-Directive (no, I did not make up these names, that is how the Commission refers to the two proposed directives),
  • and here for the Muppet-Agency-Regulation (yes, I did make up this name, and that is how I refer to the regulation proposing to set up a largely advisory body, called EECMA [European Electronic Communications Market Authority] by the Commission, and - in its adapted form - adequately called “Bert” [Body of European Regulators in Telecoms] by Parliament - a typical Muppet to comment from the sidelines).

And speaking of the Muppet-Agency, today I came across a “Declaration on the review of the ”telecom package’”, published on the Website of the IRG, a Belgian non profit-organisation which acts as a kind of twin to the European Regulators Group (the ERG was created by a Commission Decision to advise the Commission). The declaration gives “the I/ERG’s views on the review”, and - as has become quite usual - does not in any way distinguish between IRG and ERG, but rather goes on to use the “I/ERG” label throughout the document. I may be a little old-fashioned, but I do think it makes a difference whether a group formally established by the Commission with an official mandate (and subject to, for instance, access to document-requirements under Community rules) issues an opinion or whether the opinion is expressed by a private pressure group. But the interesting thing is that the IRG seems to be in possession of all the ERG-documents and puts them up on its website earlier than the ERG (this is true not only for this declaration, but also for instance for an official ERG-Report on tariff-transaprency!).

So what is the position of this I/ERG split personality (better: this entity suffering from dissociative identity disorder)? Well, first of all there is a new abbreviation. Already the Council had said “Bert & Ernie Goodnight!” ( I really regret my proposal on changing ENISA to ERNIE was not taken up), inventing GERT [Group of European Regulators in Telecoms]instead, and so it is a bit disappointing that the I/ERG-people could not come up with a name that would not be as boring as “BoR” (which should stand for Board of Regulators). On the merits, it is not really surprising that the regulators - independent as ever - are very close to the Council position (”I/ERG is supportive of the political agreement reached in November 2008 by the Council”), especially as they want to retain full control of the remedies to be imposed on dominant operators (”it is important to maintain the current regulatory balance which provides sufficient flexibility to allow NRAs to tailor remedies to overcome the competition problems identified in the national market analysis”). And after this substantial contribution they proudly declare: “I/ERG is [shouldn’t it read: are?] ready to contribute to the ongoing debate.”

PS: Maybe I should stress that I have nothing but the highest regard for the technical work done by ERG (IRG?) project teams, report-drafters etc. - there is a lot of really good work being done by the people digging into the substance of major reglatory issues.  What is irritating is the strange pseudo-diplomatic facade put on all this by the talking Heads, indulging in self-important declarations.

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“thy just and lawful aid”*: CFI: French licence fee compatible with Common Market

Posted on March 11, 2009 | Filed Under communication technologies, public services

_paris.jpg Funding public service broadcasting is not an easy thing to do nowadays, as the recent UK discussion around Ofcom’s second PSB review has shown. And while public service broadcasters fiercely opposed any intervention by the European Commission under state aid rules, in the view oft their private competitors the Commission had done too little, too late. A case decided today by the Court of First Instance of the European Communities, T-354/05 TF1, goes back to 1993, when the private French broadcaster TF1 first complained against measures taken by France to support the public service broadcaster (France 2 and France 3). The Commission told TF1 - I paraphrase - that it was a complex issue, all Member States were affected, and a study was commissioned. Nothing more happened (at least in the view of TF1), and so TF1 brought the issue to Court - in a judgment issued on 3 June 1999, T-17/96, the Court of First Instance found the Commission should have done something more substantial: it should have made a decision concerning TF1’s complaint (the judgment was upheld by the European Court of Justice on 12 July 2001, C-302/99 P).

The Commission then dealt with the technically more complex issues raised in the complaint, such as investment aids, but it did not touch the core question of the French licence fee regime. In a first decision of 10 December 2003 the Commission found that the specific measures were compatible with the Common Market. TF1 went to court with an ill-adviced claim, and was flatly rejected on 19 May 2008, T-144/04 (the Court’s order speaks of the “the absence of any explanation in the application”, that the applicant’s head of claim “lacks the basic clarity and precision”, or that some reasoning is “particularly vague”).

But the main question, whether the French “redevance”, a broadcasting licence fee collected by tax authorities and distributed according to a decision of Parliament, constituted state aid and if yes, whether it was compatible with the Common Market, still had not been answered. The Commission finally closed the case in April 2005, after the French authorities had agreed to make a few changes so as to avoid “overcompensation” (the public service boradcaster may not get more public funding than it needs to deliver the publice service it is charged with) and establish transparency as far as activities outside the public service remit are concerned (here is the Decision, only available in French).

TF1 again went to Court - and lost again. However, today’s judgment (at the moment available only in French [as well as Spanish, Estonian, Greek and Romanian]) is not as devastating as the order of 19 May 2008 quoted above. The Court agrees with the Commission (and TF1) that the licence fee system constitutes state aid. As TF1 had claimed that the Commission did not correctly apply the Altmark-criteria, the Court points out that if all four of those ciriteria (cf Nr 94 of the Altmark Trans judgment) had been met, then there would be no state aid at all. The Commission had come to the conclusion that the French licence fee system did not fulfill the second and forth Altmark-criteria (”the parameters on the basis of which the compensation is calculated have been established beforehand in an objective and transparent manner” resp “where the undertaking which is to discharge public service obligations is not chosen in a public procurement procedure, the level of compensation needed has been determined on the basis of an analysis of the costs which a typical undertaking … would have incurred”). So the Commission had continued to investigate whether this state aid-scheme was compatible with the Common Market. France finally agreed to change the rules so that any “overcompensation” would have to be used only for fulfilling the public service remit in the following year. The Court ruled that in accepting these undertakings the Commission had not overstepped its margin of appreciation.

TF1 can bring an appeal against this judgment, but even if it does not choose to appeal there is a “next round” open already, as TFa has again brought court action against certain measures adopted by France to support the public service broadcaster (T-568/08 and T-573/08).

PS - only somewhat related: yesterday an Austrian initiative of scholars and journalists presented a “charta for public service media” in support of PSB - it can be read (in English) here; the signatories will circulate it amongst experts in Europe and want to start a discussion, highlighting the importance of public service media.

*) Shakespeare, King Henry VI, Part III, Act III, Scene 3

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“If they do speak our language, ’tis our will”*: ECJ backs Spanish requirement to invest in Spanish language films

Posted on March 6, 2009 | Filed Under communication technologies

In its judgement of 5 March 2009 in the case C-222/07 UTECA, the European Court of Justice closely followed what advocate general Kokott had suggested in her opinion (more on that here). The Spanish law requiring television operators to earmark 5% of their operating revenue for the funding of European cinematographic films and films made for television, and to spend 60% of that funding for the production of films of which the original language is one of the official languages of Spain (not only Spanish, but also “catalán, gallego, euskera”) was thus found to be in conformity with Community law.

The decision is brief and straigthforward; here a summary:

  • The “Television Without Frontiers”-Directive (89/552/EEC, as amended by directive 97/36/EC)  is a “minimum directive”; pursuant ot Article 3(1) of the Diective, the Member States remain free to lay down more detailed or stricter rules with regard to television broadcasting bodies under their jurisdiction.
  • These rules of course have to respect the fundamental freedoms guaranteed by the Treaty.
  • Requiring television operators to earmark 5% of their operating revenue for the pre-funding of Europeanfilms does not constitute, in practice, a restriction on one of the fundamental freedoms guaranteed by the Treaty.
  • However, the obligation to reserve 60% of the 5% of revenue for the pre-funding of European films in which the original language is one of the official languages of the Member State in questions, constitutes a restriction on several fundamental freedoms (freedom to provide services, freedom of establishment, the free movement of capital and freedom of movement for workers - the Court does not delve deeper into this but just points to the advocate general’s opinion).
  • Such a restriction may be justified only where it serves overriding reasons relating to the general interest, is suitable for securing the attainment of the objective which it pursues and does not go beyond what is necessary in order to attain it.
  • Defending and promoting one or several of its official languages can constitute an overriding reason in the public interest.
  • “Language and culture are intrinsically linked” - so the objective of defending and promoting one or several of its official languages need not “of necessity be accompanied by other cultural criteria in order for it to justify a restriction on one of the fundamental freedoms guaranteed by the Treaty.”
  • That the language criterion “may constitute an advantage for cinema production undertakings which work in the language covered by that criterion and which, accordingly, may in practice mostly comprise undertakings established in the Member State of which the language constitutes an official language appears inherent to the objective pursued. Such a situation cannot, of itself, constitute proof of the disproportionate nature of the measure”.
  • The measure does not constitute State aid in favour of Spain’s cinematographic industry.

*) Shakespeare, Love’s Labour Lost, Act V, Scene 2

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ISPs as “intermediaries”: ECJ affirms rightholders may seek injunction against ISPs in filesharing cases

Posted on March 5, 2009 | Filed Under digital content

In an order dated 19 Februar 2009 (not yet available in English), the European Court of Justice in the Case C-557/LSG (earlier in this blog) held that rightholders may apply for an injunction against Internet-Access-Providers whose services are used by a third party to infringe a copyright or related right, because ISPs are “intermediaries” according to the “info-directive” 2001/29. To the ECJ, this interpretation was beyond reasonable doubt (so it was not decided in a judgment, but rather in an order).  

The main question put before the ECJ by the Austrian Supreme Judicial Court was whether article 8(3) of the enforcement-directive 2004/48/EC, ”having regard to Article 6 and Article 15 of Directive 2002/58/EC” (e-privacy-directive) were to be interpreted (restrictively) as not permitting the disclosure of personal traffic data to private third parties for the purpose of civil proceedings for alleged infringements of exclusive rights protected by copyright (rights of exploitation and use).

In other words: would a member state that permits rightholders to receive personal data from an ISP (identifying fileshares on account of their IP-addresses that are dynamically assigned by the ISP) be infringing the e-privacy-directive?

The ECJ again did not see it necessary to deliver a full judgment, but rather saw this question answered already in the Promusicae-Case (see already here), where it had stated (in Nr. 54):  “The conclusion must therefore be that Directive 2002/58 does not preclude the possibility for the Member States of laying down an obligation to disclose personal data in the context of civil proceedings.”

The Court then went on to stress what it said in Nr 68 and 79 of Promusicae, that member states have to “take care to rely on an interpretation … which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives [2000/31/EC, 2001/29/EC, 2004/48/EC, 2002/58/EC], the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.”

The really interesting question, to which the referring court certainly had expected a more enlightening answer, remains open: is a national law that gives rightholders in a copyright claim access to ISPs’ traffic data based on an interpretation that is consistent with the directives and does not conflict with fundamental rights or the principle of proportonality? After all, it is the ECJ that has to interpret community law - so why pass the hot potato back to the member states?

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