Why apart from BEREC there is no regulatory authority in the European Union to oversee the software and internet content economy under EU Regulation 2015/2120?

Why apart from BEREC there is no regulatory authority in the European Union to oversee the software and internet content economy under EU Regulation 2015/2120?

The level of still high digital exclusion around the world does not mean that we do not live in the internet age. The problem is not only caused by the lack of possibility to use services in general, but also by the lack of open internet access. The European Union has been trying to normalize this situation for several years, but still does not have proper regulatory authorities. Why then does the control of the Internet rest on the shoulders of national regulators?

Main objectives of the Regulation 2015/2120

(Full name of the legal act: The Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union)

The most important objective of the Regulation was to ensure equal and non-discriminatory, open internet access in all EU Member States. It has also become necessary to change contractual patterns due to new information obligations imposed on telecommunications undertakings. New rules for data transmission management and regulation of roaming prices in the European Union also came into force.

How should these assumptions be implemented?

As mentioned above, the EU authorities are most concerned about introducing uniform rules for internet access. This can be done by providing end-users (that is users who do not provide public communications networks or publicly available electronic communications services) free access to internet and by imposing obligations on the internet provider.

The internet access provider must treat all traffic equally and without discrimination – blocking, restricting and discriminating internet traffic is only allowed in three cases:

  • compliance with legal obligations,
  • network integrity,
  • overload management in exceptional and temporary situations.

Therefore, traffic management measures applied by the supplier must be transparent, proportionate and not based on commercial grounds. The service provider must observe certain protections to ensure that the provision of services does not adversely affect open internet access.

Bodies with control over the implementation of the Regulation

In accordance with Article 5 of the Regulation, national regulatory authorities shall closely monitor and ensure compliance with Article 3 (safeguarding of open internet access) and Article 4 (transparency measures for ensuring open internet access) and shall promote the continued availability of non-discriminatory internet access at levels of quality which reflect technical developments.

National regulatory authorities and other competent authorities should have the power to intervene where contractual provisions or commercial practices could undermine the essence of end-users’ rights.

To this purpose, the assessment of contractual terms and commercial practices should, inter alia, take into account the respective market positions of internet access providers and content, application and service providers.

The Regulation provides that national regulatory authorities may impose technical characteristics, minimum quality of service requirements and other appropriate and necessary measures on one or more providers of electronic communications to the public, including internet access providers. In addition, national regulatory authorities are required to monitor the market and price developments for regulated intra-EU communication services and report annually to the European Commission and BEREC (the Body of European Regulators for Electronic Communications).

Apart from BEREC, there is in principle no regulatory authority in the European Union to oversee the software and internet content economy. Why is that the case?

The answer is – we deal here with the independence of national regulators and its importance for the democratic legitimacy of their activities. The telecoms administration works with national regulators, the European Commission and national competition authorities.

Proper implementation of Regulation 2015/2120 and the Community directives on electronic communications is only possible through the application of Community law and the laws of Member States, which are different.

In addition, each of the EU Member States is characterized by a different level of technological progress and telecommunications services provided. In addition, there are many telecommunications networks in the EU, relevant for each Member State. Using the example of roaming, none of the mobile networks covers all Member States.

This is different in the areas to which a proper regulatory authority is assigned, such as the European Medicines Agency or the European Environment Agency. The issues dealt with by both these bodies are very universal and the solutions implemented by them have a high chance of success for most Member States which would also be recommended in the future in the area of internet access.