European Union: Good Call: A New Code To Regulate Communications In Europe

In Short

The Situation: On December 18, 2018, the European Union published its European Electronic Communication Code ("Code").

The Result: The Code overhauls the current legislative framework for telecommunications with the aim of consolidating existing legislations into a single Act.

Looking Ahead: The Code must be implemented in national legislation by December 21, 2020, although price caps for intra-EU calls and texts will begin to apply on May 15, 2019.

The European Electronic Communication Code broadens its scope to over-the-top players ("OTT") and promotes the rollout of very high capacity networks (5G and fiber networks). The European Parliament also introduced additional measures to impose caps on retail tariffs for intra-EU voice calls and texts, which ultimately were inserted in the Body of European Regulators for Electronic Communications ("BEREC") Regulation 2018/1971.

The main changes brought by the Code are the following.

Single Act

The Code will consolidate the existing EU legal framework for electronic communications: the Framework Directive, the Access Directive, the Authorization Directive, and the Universal Service Directive. Only the E-Privacy Directive will remain separate and is expected to be replaced by the E-Privacy Regulation (which is still being discussed by the EU Parliament and Council). Several provisions of the Code require the adoption of implementing and delegated acts by the Commission or Guidelines by BEREC.

Scope of Code Expanded to OTT Services

OTT services that provide interpersonal communications services are now being regulated. A distinction is made between number-based OTT services and number-independent OTT services, with the latter benefiting from a lighter regulatory regime. OTTs must essentially abide by the end-user protection obligations and the security obligations (including security breach notification obligation) provided in the Code. End-user protection obligations include obligations on contractual information, pricing and quality transparency (including comparison tools), maximum contract duration, notice for termination, and consumer switching.

The Code also foresees the possibility for national regulatory authorities ("NRAs") to impose interoperability obligations on OTTs, under specific circumstances.

Enabling 5G Deployments

The Code facilitates consistent spectrum allocations across the European Union. The Code introduces a minimum license duration of 15 years with an almost automatic five-year extension. There are more detailed processes for the renewal, transfer, sharing, and lease of spectrum rights. To promote competition, the Code enables NRAs to impose spectrum caps and to reserve certain frequencies for new entrants. NRAs can also impose conditions on spectrum allocation such as passive or active sharing or commercial roaming obligations. Finally, the Code requires 5G spectrum (i.e., 3.4-3.8 GHz band and 1 GHz of the 24.25-27.5 GHz band) to be assigned by December 31, 2020.

To encourage the development of small area wireless access points (i.e., small cells expected to be widely used for 5G), operators are granted right of ways on public infrastructure suitable for deploying such cells. Furthermore, their deployment may not be subject to prior permits, fees, or charges (other than administrative charges).

Fostering Fiber Rollouts

NRAs can impose on any operator or cable owner obligations to give access to cabling and associated facilities inside buildings or until the first distribution/concentration point, or even beyond that point if necessary. This applies regardless of market power, but the replication of the cabling must be economically inefficient or physically impractical. Imposing such symmetrical access requirements requires conducting a market analysis and considering guidelines to be released by BEREC.

Notwithstanding the above, the Code maintains as its core the principle of significant market power ("SMP") regulation, whereby only dominant firms should be regulated. It prolongs time periods for market analyses: instead of three years, NRAs can now conduct market analysis every five years. This gives operators more regulatory predictability but increases the risk that obligations be imposed for longer than necessary or do not reflect new market needs.

The Code introduces new access remedies for SMP operators, namely access to civil infrastructure and specific network elements (such as local loop and sub-loop). However, it is unclear whether that would really add anything, as civil infrastructure is already available via Directive 2014/61, and access to the local loop and sub-loop was generally already available under SMP regulation.

Finally, the Code introduces a new co-investment regime to facilitate investments in fiber to the home ("FTTH") or to the base station networks. Under such regime, SMP operators will be exempted from regulation if they offer commitments with regard to deploying such networks (e.g., conditions for co-ownership and co-financing, transparency of the co-invest offer, etc. ). Access seekers not participating in the co-investment may still benefit from access, but it depends on the level of quality, reach, and speeds that were available before the deployment and also on financial conditions, including risk premiums. The commitments must be subjected to a prior market analysis and be binding for at least seven years. While no additional remedies, in principle, should be imposed on these operators, NRAs can impose ex post remedies if significant competitive issues arise.

Pricing Regulation for Termination Rates and Intra-EU Calls

By December 31, 2020, the Commission will set, by delegated act, a single EU-wide voice termination rate. Regulation 2018/1971, adopted in parallel to the Code, also foresees caps on retail tariffs for mobile and fixed intra-EU voice calls (€0.19/minute) and texts (€0.06/text).

Three Key Takeaways

  1. The Code should provide a more efficient and flexible framework for the deployments of FTTH and 5G. Yet, it will not be implemented until 2020, when the deployment of these technologies might already be well underway.
  2. Within the next two year, the Commission and BEREC must adopt a significant number of implementing acts and guidelines. In the meantime, Member States cannot adopt measures that would compromise the Code, and existing legislation should be interpreted by courts in conformity with the Code, to the extent possible.
  3. OTT operators should assess whether they fall within the ambit of the Code and adapt their trade practices and security measures accordingly.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Laurent De Muyter
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions