I. Introduction
The General Authorisation regime (GA) is an essential element of the European Electronic Communications Code (EECC) and the Portuguese Electronic Communications Law1. The GA was introduced into the regulatory framework for electronic communications by Directive 96/19/EC 2and consolidated by Directive 2002/20/EC3. The main objective of its implementation was to remove regulatory barriers and facilitate the entry of new operators into the electronic communications market within the EU.
Since the implementation of the GA, the legal framework in the various Member States has been amended to allow for effective harmonisation of the procedures for authorising electronic communications companies to operate in the market in accordance with the European regulatory framework.
Despite the improvements made since its adoption, BEREC has recently published a draft opinion 4providing an in-depth analysis of the functioning of the GA regime. In this document, BEREC analyses in detail the issues related to the application of Articles 12 to 19 of the EECC, the notification system of the national regulatory authorities (NRAs), the functioning of the General Authorisation Database (GADB), as well as suggestions for improvements.
II. Main issues addressed in BEREC's draft opinion
A. The GA and the notification system
According to BEREC, the GA has made it easier for new operators to enter the electronic communications market. This is because in most EU countries companies now only need to notify the relevant NRA of their intention to start providing networks and services (instead of applying for a licence)5 This approach has promoted harmonised and transparent market rules in all EU Member States.
In Member States where the prior notification system applies alongside the GA, NRAs have implemented the notification form adopted by the BEREC6. This has contributed to the harmonisation of notification requirements, facilitated market entry and promoted greater consistency in the notifications submitted by NRAs to BEREC.
B. Operation of the General Authorisation Database (GADB)
The GADB acts as a central repository for notifications submitted by electronic communications companies, and NRAs are responsible for uploading this information to the GADB. However, there have been some challenges in the operation of this database, such as difficulties in using it, inefficiencies and failures in uploading data. In this context, BEREC considers it crucial to improve the functioning of the GADB in order to increase the overall efficiency of the GA.
C. Main challenges in the implementation of the GA
The main challenges identified by BEREC for the implementation of the GA in the different Member States are:
- Compatibility of the information contained in the databases of the NRAs and the GADB: it is necessary to ensure consistency between the national databases of notifications received and the categorisation of networks and services proposed by BEREC. Indeed, some of the categories of networks and services defined by BEREC in the model notification form are not understood in the same way by all NRAs. This may lead to inconsistencies between the information contained in their notification forms and the BEREC model form, thus creating discrepancies and hindering the simplification of procedures.
- Clear understanding of BEREC's proposed categorisation: it follows from the previous point that there is no clear interpretation of the categories of networks and services defined by BEREC, in particular by notifying parties. For example, the scope of machine-to-machine services, satellite internet access and TETRA services, especially in notifications submitted before the entry into force of the EECC. The definition of guidelines and clear examples for certain categories of networks and services could help to reduce ambiguity and improve the consistency of information.
D. Suggestions for improvement
In order to address the challenges identified, BEREC proposes to implement the following improvements:
- Alignment of national notification systems: NRAs should ensure that their national systems are compatible with BEREC's categorisation, and NRAs should adapt databases and notification forms where necessary. This alignment will facilitate data integration and compliance.
- Clarification of the GA: BEREC could provide clear guidance on the identification data required from non-EU notifying companies based outside the EU, as this could help to increase the clarity and transparency of the GA.
- Clarification of categories of networks and services: The publication of additional clarifications and examples regarding certain categories of networks and services in the BEREC notification template could contribute to a more consistent interpretation and application of the GA by NRAs, in particular with regard to the submission of data to BEREC.
E. Contributions from stakeholders
In light of the summary and considerations set out in the document, BEREC would like to receive input from stakeholders, in particular on whether:
- Do they agree with BEREC's assessment of the current state of implementation of the GA?
- Are there issues other than those identified in the draft opinion that prevent the GA from functioning properly in the EU?
- Do they have any suggestions for future adjustments to the GADB (e.g. in terms of scope, operational functioning, etc.)?
III. Conclusions
The draft BEREC Opinion is open for public consultation until 26 July 2024. After this period, BEREC intends to adopt its final opinion by December 2024, continuing the ongoing adjustments, in particular with regard to the notification requirements for general authorisations. BEREC will also take into account the European Commission's White Paper on how to master Europe's digital infrastructure needs of 21 February 2024 on whether the GA should cover companies offering number-independent interpersonal communication services (e.g. WhatsApp, Messenger), virtualised networks or SDNs (Software Defined Networks).
From a broader perspective, this BEREC exercise highlights the importance for lawmakers and regulators to regularly reflect on the adaptability of regulatory frameworks to rapid technological advances and the dynamics of emerging markets. Can the principles of simplification and transparency in the GA be applied to other sectors? How can we ensure that automation and simplification, driven by technologies such as AI, do not compromise human oversight and judgement in specific situations? These considerations can be used to refine and extend the GA regime to other regulated sectors, ensuring that it meets current and future market needs.
Footnotes
1. Law 16/2022 of 16 August.
2. Commission Directive 96/19/EC of 13 March amending Directive 90/388/EEC on competition in the markets for telecommunications services and abolishing all special and exclusive rights restricting the provision of telecommunications services and associated networks by undertakings established in the Community.
3. Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services ("Authorisation Directive").
4. BEREC draft Opinion on the national implementation and functioning of the general authorisation, and on their impact on the functioning of the internal market, pursuant to Article 122, paragraph 3 EECC (europa.eu).
5. Denmark and France are the only EU countries whose legislation is fully harmonised with Article 12 of the EECC. In these countries, electronic communications operators are not required to notify the NRA of the start of the provision of electronic communications networks and services. In Denmark there is an "automatic authorisation" system under which companies entering the market are deemed to be automatically authorised to provide services. In France, the notification requirement was abolished following the implementation of the EECC. However, ARCEP, the French NRA, continues to act as the body responsible for managing other obligations related to general authorisations (e.g. allocation of scarce resources such as frequencies and numbering resources).
6. According to the survey carried out by BEREC, the model form is not the same in all Member States, as NRAs may need additional information to that provided in the model form adopted by BEREC due to national legislation, such as company law. In addition, some NRAs, such as the Portuguese ANACOM, require companies to provide details of the networks and services to be offered on the forms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.