Regulating connectivity: Linking the EU telecommunications framework to the digital future

Abstract

Connectivity is one of the pillars for shaping the digital future. The European Electronic Communications Code adopted in 2018 (hereinafter, Telecom Code) aims to promote connectivity and the take-up of very high capacity networks, like 5G and fiber networks. The Telecom Code pursuits to align the connectivity goal with the objectives on internal market, competition and end-user protection. Market regulation is intended to promote efficient investment and innovation in new enhanced infrastructures. The chapter elaborates on how the EU regulatory framework aligns these goals. It discusses the broadened scope of regulation, also in view of the technology neutrality principle and over-the-top services. The roll-out of new advanced networks requires access to properties and facilities as well as rights of use for radio spectrum. As licensing obligations and procedures impact the roll-out a consistent and predictable framework is required. The Telecom Code introduces a new instrument to monitor the roll-out of new networks so that actions can be taken in areas that risk to be deprived from satisfactory connectivity as a result of which end-users may not be able to participate in the digital society. The Telecom Code carries on with the system of asymmetric ex ante market regulation of providers with Significant Market Power on the basis of which access obligations can be imposed. Connectivity and investment arguments need to be taken into account in the justification of obligations. A new legal basis is included for co-investment commitments that could lift obligations. Another new instrument is the possibility to impose symmetric access obligations on providers independent of their position on the market to be applied in situations with replicability restraints. Taking into account the variety of instruments of regulation in the Telecom Code the question arises how to apply them in a consistent and coherent way. This is a challenge for the realization of the connectivity goal that is vital for the digital future.