EU Electronic Communications Law -- a book review

EU Electronic Communications Law – Competition and Regulation in the European Telecommunications Market (second edition), by Paul Nihoul and Peter Rodford, was published last year by Oxford University Press.  IP Finance welcomes this review of it from Fredericka Argent (formerly with the IFPI and now a trainee solicitor in the London office of Covington & Burling LLP):

"With the growth and increasing importance of fixed and mobile technologies, broadcasting networks and the internet industry governing the way we communicate, work and relax, there is no better time as lawyers to have an understanding of the regulations around the electronic communications sector. While this in-depth and well-written book is not light bedtime reading, it could qualify an essential reference book for practitioners and academics in the fields of technology and competition law. Indeed, businesspeople and public bodies in the European telecommunications sector may also find it a useful guide to their industry. The authors state that their aim is to provide a neutral, practical guide to electronic communications law that may help those engaged in commercial litigation and negotiation. They seem to have been successful in this regard.

We are introduced to the book with an explanation that the rules surrounding the electronic communications sector fall into several different but co-existing categories: from rules dealing specifically with electronic activities to rules that apply to competition law generally. The European Parliament, Council and the European Commission regulate different areas, which has led to different institutions and authorities administering different bodies of rules and discrepancies in those rules forming. Although the emphasis in this book is placed on the European Union regulation, the authors stress that there is a need for practitioners to take heed of national laws and international rules agreed within the World Trade Organisation (WTO).

The authors helpfully take us step by step through the various topics and provide a logical framework for tackling each layer of complexity in the regulations. The book is comprehensive but also easy to read as a reference book – both in terms of the content and in terms of the way it is laid out: it is split up into five large chapters and subdivided into several ‘mini-chapters’, which are clearly signposted using headings, a neat layout and a detailed index.

Chapter 1 sets out the background to the creation of the new regulatory framework (the ‘RF’), which is the current framework regulating electronic communications in the European Union (notably, the RF does not directly regulate the content of communications). The multitude of directives and legislative instruments that make up the RF are set out and the relationship between the RF and competition law is examined – this being an important theme running through the entire book. The authors usefully detail scenarios and principles that can be drawn from the related case law. Of particular interest was this chapter’s focus on the elimination of ‘special and exclusive rights’ that were granted to the European electronic communications markets prior to the reform to the RF. The book addresses the economic, political and legal considerations behind the introduction of competition into the communications sector via ‘liberalisation directives’ in the RF – something that was missing under the old European structure, which had created national monopolies for electronic communications undertakings. We are also introduced to the ‘basic regulatory principles’ – such as non-discrimination and transparency – that national bodies are required to observe. The chapter then moves to a discussion of issues relating to the (predominantly private) ownership of telecommunications bodies and the regulation over the acquisition of shares in these undertakings, a topic which may be particularly helpful for lawyers and those working in the telecommunications industry.

Chapter 2 looks at the authorisations and certain formalities that undertakings may be required to comply with before commencing market activity on electronic communications markets. Chapter 3 examines undertakings’ access to facilities in order to engage in market activity and the situation where resources are controlled by third parties. Next, chapter 4 addresses, in detail, the obligation on telecommunications services to provide a universal service (defined as ‘a package of services that are to be made available at a specified quality level to all end users at an affordable price’) in accordance with public policy objectives. Practical issues are also dealt with here, such as how a universal service can be financed.

Perhaps, however, the most interesting chapter of this book is the final one, which was introduced in this second edition. The chapter addresses the protection of users on a contractual level and from the point of view of data protection and privacy in telecommunications. This is a topical issue, and readers will be familiar with the media’s reporting of stories: from internet service providers being asked to take responsibility for the data transmitted by their subscribers, to accusations against search engines and social networks of breaching users’ privacy. Indeed, in July 2012, the European Commission released a consultation on plans to draft new regulations on cyber security in EU businesses . This chapter recognises these concerns, particularly in the online environment, and takes an in-depth look at the nature and scope of the directives that have been implemented to address the issues that arise as well as wider policy thinking. Issues covered include: security questions surrounding traffic data, confidentiality of communications and the storage of information on cookies. The remainder of the chapter examines dispute resolution mechanisms and strategies, a resource that will undoubtedly be helpful to practitioners. The authors address the types of conflict (including inter-institutional conflict) that may emerge in litigation on national, European and international levels from sector specific regulation, liberalisation directives and general competition law and the interaction between these rules in the electronic communications market.

At every stage in this book, the authors take us carefully through various sets of rules and principles that have been established in European Electronic Communications law and the aim to both harmonise and liberalise the EU legislative regime in order to ensure that competition thrives throughout the sector and that the telecommunications industry successfully provides a public service. Key areas of convergence and conflict are drawn out and explained in context, as we are guided through the multi-layered rules, authorities and institutions that regulate this sector. Where appropriate, case law is examined and commercial realities are considered. For any practitioner, academic or businessperson engaged in the telecommunications industry, this book would provide excellent reading material".

Bibliographical details: ISBN: 978-0-19-960186-8. Hard cover, pp 474. Price: £195. Web page here