The UK government has published a consultation on implementing the European Electronic Communications Code (Directive 2018/1972/EU). The consultation sets out the government’s proposed approach to implementation. The Directive was published in the Official Journal of the EU on 17 December 2018, and member states have until 21 December 2020 to implement the provisions in domestic law. The consultation is taking place in the context of the UK leaving the EU under the agreed EU withdrawal agreement and transition period, under which the UK would be required to implement the Directive.
The Directive updates the regulatory framework to reflect evolving technologies and developments in the way people communicate. It introduces a renewed focus on increasing regulatory stability, with the aim of promoting investment in fibre networks, making efficient use of spectrum for 5G and facilitating consumer engagement. Many of the provisions already exist in UK law.
The powers and duties in the Directive take a number of different forms, and they may appear as a discretionary power for, or an obligation on the government, national regulatory authority (in the case of the UK, Ofcom) or another competent authority. A competent authority is a person or organisation that has the capacity and legally delegated authority to perform the functions assigned to it. In many places, for example spectrum policy, the Directive updates the current framework to give member states the flexibility of assigning certain functions to an authority other than the national regulatory authority.
The government is approaching implementation of the Directive with the following three objectives:
- meeting the minimum requirements of the Directive;
- minimising additional costs to business; and
- ensuring updates to the UK regulatory framework contribute to the government’s digital connectivity ambitions where there is discretion and sufficient justification to do so.
The government proposes to implement the Directive with as little impact as possible on businesses, whilst ensuring that they and consumers can make the most of the opportunities the Code provides. In light of this, it is the government’s policy to adopt a ‘copy out’ approach to the transposition of EU directives wherever possible and appropriate. In practice, many of the articles in the Directive do not lend themselves to ‘copy out’ implementation because they are minor and technical updates to existing provisions. In some circumstances, it is possible to retain the status quo and make no changes to UK legislation. Where implementation is required, whilst a transposition option that implements the minimum requirements of the Directive into UK legislation is standard practice, the government may use an alternative approach to the transposition of certain provisions in a way that is tailored to UK markets. This approach would be taken where there is sufficient justification and evidence for doing so; for example, where it would contribute to the government’s objectives for digital connectivity. The consultation document explores those options and responses will inform the government’s final transposition choices.
The consultation ends on 10 September 2019.
