Enforced preventive filtering: Belgian case comes before the ECJ

Posted on March 23, 2010 | Filed Under communication technologies

Do directives 2001/29 (information society-copyright directive) and 2004/48 (enforcement directive), read in conjunction with directives 95/46 (data protection), 2000/31 (e-commerce) and 2002/58 (e-privacy), and construed in the light of Article 8 and 10 of the European Convention on human rights and fundamental freedoms, permit a Member State to allow that a national judge may require an internet access provider to filter all in- and outbound electronic communication in order to identifiy files that contain copyrighted music?

This is one of the two questions that the Brussels Court of Appeal recently decided to put to the European Court of Justice for a preliminary ruling (the decision - in French - is here; at the ECJ, the new case is C-70/10, Scarlet Extended).

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“without delay, their arguments be now produced and heard”*: ECJ on mandatory out-of-court-dispute resolution

Posted on March 18, 2010 | Filed Under communication technologies

Today, the European Court of Justice gave judgment in the joined Cases C‑317/08, C‑318/08, C‑319/08 and C‑320/08, Alassini and others, concerning the Italian regulations on a mandatory attempt to reach an out-of-court settlement before bringing a court case in issues involving electronic communications networks and services (see here for more on the background and links to the more or less relevant EU and Italian legislation).

And while the question referred to the European Court of Justice by the Guidice di Pace of Ischia might not only have been hard to comprehend, but also bordered on the inadmissible (see paragraphs 23-30 of the judgment), the Court made the best of it: following the very structured and clear opinion of advocate general Kokott, the ECJ rephrased the question (para 37), produced the very obvious answer to it, and then proceeded to give a fundamental statement on effective judicial protection in the light of  mandatory out-of-court dispute resolution.

So we now know - not that we ever doubted it - that Art 34 of the Universal Service Directive 2002/22/EC does not preclude “legislation of a Member State under which the admissibility before the courts of actions relating to electronic communications services between end-users and providers of those services, concerning the rights conferred by that directive, is conditional upon an attempt to settle the dispute out of court.”

But more important is the second paragraph of the ECJ’s ruling:

“Nor do the principles of equivalence and effectiveness or the principle of effective judicial protection preclude national legislation which imposes, in respect of such disputes, prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.”

To sum it up, these are the main points any mandatory dispute resolution-scheme has to fulfill:

  1. no binding decision
  2. no substantial delay
  3. suspension of the period for the time-barring of claims
  4. no costs or very low costs for the parties
  5. no “online-only” ADR
  6. interim measures (by the court) in exceptional cases remain possible

And of course the national rule mandating out-of-court dispute resolution has to apply without distinction, whether the infringement alleged is of EU law or national law.

The judgment had to deal only with mandatory dispute resolution in electronic communications-cases, but there can be no doubt that these principles apply across the board in any area where “rights and freedoms guaranteed by the law of the Union are violated” (by the way: Article 47 of the Charter of Fundamental Rights of the European Union, from which these words are taken, is expressely quoted in the judgment).

*) Shakespeare, Kong Henry VIII, Act II Scene 4

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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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