Consultation on Cloud computing

The EU Commission has published an online survey on 'cloud computing'.
The online public consultation will run until the August 31st. Responses will feed into the preparation of a European cloud computing strategy that the Commission will present in 2012.
The survey seeks feedback on the following issues:

- data protection and liability questions, in particular in cross-border situations;
- other legal and technical barriers that can slow down the development of cloud computing in Europe;
- standardisation and interoperability solutions;
- uptake of cloud services, in particular by SMEs;
- ways to promote research and innovation in cloud computing.


The results of the consultation will feed into a European cloud computing strategy that the Commission will present in 2012. This strategy will aim to "clarify the legal conditions for the take-up of cloud computing in Europe, stimulate the development of a competitive European cloud industry and market, and facilitate the roll-out of innovative cloud computing services for citizens and businesses."

Microsoft buys Skype

Largely commented in press is today's announcement that Microsoft is intending (subject to antitrust approval - which seems unlikely to be a big issue at first glance) to buy Skype. Skype is an EU based company; actually one of the rare significant internet player located in Europe (in one of its smallest countries, namely Luxembourg).

Although Skype is located in Europe, VoIP regulation is still very much in limbo here, as the EU framework is not really tailored to such service (e.g., on authorization - Skype is not registered anywhere to my knowledge) .

Interesting info on how Skype sees itself falling outside the telecom regulation is available in its recent sec filing.

If you are interested in the VoIP topic, an study on VoIP was made in 2008 by WIK.

OPTA's decisions on M4 and 5 annulled

The Dutch appeal court (College van Beroep voor het bedrijfsleven) has annulled OPTA's M4 and 5 decisions based on incorrect market definition (fiber LLU for corporate users should be a separate market) and lack of rationale for bitstream when LLU regulation has been withdrawn.

The 2 decisions are available here and here.

ECJ: incumbent operators can become a one-stop shop for rival directory-service providers...but not on a cost-oriented basis

This is the practical result of the decision rendered today ... combined with a previous decision from February.

In its DT decision (case C‑543/09) rendered today, the Court of Justice ruled that the EU telecom framework is not precluding national legislation from requiring telecoms firms to provide data not only from their own subscribers but also data held on third-party subscribers, to directory-services operators.

This ruling echoes another ruling of the Court of last February (in Case C-16/10 The Number Conduit) that considered that imposing a cost-oriented obligation for providing access to such assembled third party data would exceed the power conferred by the EU framework directive.

The conclusion of the Court in both cases are reproduced below:

I. Case C-543/09

1. Article 25(2) of Directive 2002/22/EC of the European Universal Service Directive)must be interpreted as not precluding national legislation under which undertakings assigning telephone numbers to end users must make available to undertakings whose activity consists in providing publicly available directory enquiry services and directories not only data relating to their own subscribers but also data in their possession relating to subscribers of third-party undertakings.

2. Article 12 of Directive 2002/58/EC of the Directive on privacy and electronic communications must be interpreted as not precluding national legislation under which an undertaking publishing public directories must pass personal data in its possession relating to subscribers of other telephone service providers to a third-party undertaking whose activity consists in publishing a printed or electronic public directory or making such directories obtainable through directory enquiry services, and under which the passing on of those data is not conditional on renewed consent from the subscribers, provided, however, that those subscribers have been informed, before the first inclusion of their data in a public directory, of the purpose of that directory and of the fact that those data could be communicated to another telephone service provider and that it is guaranteed that those data will not, once passed on, be used for purposes other than those for which they were collected with a view to their first publication.

II. C-16/10:

Article 8(1) of Directive 2002/22/EC of the Universal Service Directive permits Member States, where they decide to designate one or more undertakings under that provision to guarantee the provision of universal service, or different elements of universal service, as identified in Articles 4 to 7 and 9(2) of that same directive, to impose on such undertakings only the specific obligations, provided for in the directive, which are associated with the provision of that service, or elements thereof, to end‑users by the designated undertakings themselves.

NCA cannot adopt negative antitrust decisions

Again, the telecom sector gave rise to an interesting preliminary ruling on EU competition law. In the Tele2 Polska decision rendered today, the Court of Justice held that national competition authorities are not allowed to declare that there is no breach of EU competition law and acquit companies under such rules. Only the Commission can do so.

As a matter of practice, NCA must thus simply drop their enquiries but not declare that this is because there has been no breach of EU competition law (although it could actually be the case).

EP Report on spectrum policy program

The European Parliament has published the report on a coordinated European approach to radio spectrum policy management (in french).

M4 and 5 in France notified to the Commission

ARCEP notified yesterday its M4 and M5 regulation to the EC. Draft decisions are available here.

Art 7.: M7 in Poland

At the beginning of this month, the Commission published its comments on the draft M7 polish decision.

Those are as follows:

Need for regulating termination rates reflecting efficient costs

The Commission notes that UKE’s proposal will lead to mobile termination rates in Poland that seem to get closer to the cost of an efficient operator but that they are still based on individual operators' costs. The Commission appreciates, however, that UKE proposes to adopt from 1 January 2013 a bottom up Long Run Incremental Cost model (BU-LRIC) in line with the Termination Rates Recommendation.
However, it appears that UKE plans to adopt the currently consulted draft measures only in case the on-going negotiations with mobile operators concerning infrastructure investments fail. The Commission notes in this respectUKE's assurance that any other draft measure replacing the currently proposed MTRs will be consulted at EU level. Without prejudice to any position the Commission may take with regard to such future notification, the Commissionwould like to point out, already at this stage, that the Termination Rates Recommendation does not allow for granting of higher MTRs to a select number of mobile network operators in return for any sort of commitments by the latter, in particular if this leads to asymmetries of rates in favour of such operators. In particular, it seems difficult to justify higher than the currently proposed rates with objective cost differences outside the control of the operators concerned, which would be, however, one of the requirements of the Termination RatesRecommendation for higher rates. It would appear that a commitment to invest in rural areas is within the control of the operator concerned. The Commission would therefore like to invite UKE to take utmost account of the Termination Rates Recommendation when setting MTRs other than proposed under the current consultation.In any event, the Commission would like to reiterate as well that UKE should consider setting at glide-path for MTRs until the end of 2012 in order to ensure transparency and legal certainty for market players.

Now a question: why does a higher access tariff justified by investments in mobile networks constitute a problem while it does not for invetsments in fixed NGA network?

NEREC papers

Since last year, NEREC, a Spanish institute, publishes an annual contribution monitoring EU telecom policy. It includes papers from M. Cave and others. It focuses pretty much on NGA regulation. The 2009 edition is available here and the 2010 is available here. The presentations of the last conference are also available here.

Independence of regulators in AVMS Directive

Last January, the preliminary study on the criteria for independence of regulators in the AVMS directive has been published. Although, this relates to media and not purely telecoms, the criteria could arguably also be applicable for telecoms regulators. The final study is expected for later this year.

In this regards, I believe that some works could be done to harmonize the wording applicable to the notion of independence of regulators across the various regulated sectors (the legal provisions differ not only in the AVMS directive and the Framework directive but also in the directives applicable to the energy sector or to data protection). Some guidelines for such exercise could be found in Case C-518/07, Commission and EDPS v. Germany (re. data protection).

ART 7. COCOM Summary

COCOM published it summary of the art.7 notifications for the last 3 months.

Commission actions since July 2003:

�� 711 cases closed with (481) “comments” letters
�� 401 cases closed with (305) “no comments” letters
�� 6 veto decisions
�� 9 cases closed with (6) “withdrawal of serious doubts” letters
�� 2 notifications declared “incomplete”
�� 17 cases pending
�� 49 withdrawals by NRAs

Consultation on broadband state aid guidelines

The European Commission published a consultation on the revision of EU rules on the public financing of broadband infrastructure, with a view to presenting new guidelines for state aid to broadband schemes in September 2012.

The Commission has published a detailed questionnaire to highlight the most important aspects where comments would be particularly welcome. These include, for instance, the technological and market development of very high speed broadband infrastructures, the best design of access conditions on subsidized next generation networks, enhancement of transparency of state aid broadband measures or the role of the national regulatory authorities in such projects. In light of the replies, the Commission will then evaluate whether and to what extent changes are necessary. If appropriate, the Commission will come forward with new draft Guidelines in early 2012. Member States and stakeholders will again have the opportunity to express their views on this revised proposal.

"Wait and see" communication on net neutrality

The Commission published today a communication on The open internet and net neutrality in Europe.

The Commission has asked the BEREC to analyse issues re. ensuring an open and neutral internet, including barriers to changing operators, blocking or throttling internet traffic (e.g. voice over internet services), transparency and quality of service. The Commission will publish, by the end of the year, evidence from BEREC's investigation, including any instances of blocking or throttling certain types of traffic. If BEREC's findings and other feedback indicate outstanding problems, the Commission says it will assess the need for more stringent measures.

The net neutrality communication follows a Commission commitment to net neutrality in the EU telecom reform package, a public consultation in the last summer year and and a summit organised with the European Parliament in autumn last year (all reported in previous posts).

LTE/WImax in 900 /1800

Today, the Commission adopted a Decision amending Decision2009/776 on the harmonisation of the 900 MHz and 1800 MHz frequency bands for terrestrial systems capable of providing pan-European electronic communications services in the Community.

The Commission Decision must be implemented by Member States by the end of 2011.

The press release is available here.