Factual Summary Report : Targeted Consultation on the proposed Recommendation for Internal Market Procedures under the European Electronic Communications Code

The stakeholder consultation took place for 9 weeks between 7 January and 9 March 2020.

Background

Under Article 32 and 33 of the Code (currently Article 7 and 7a of the Framework Directive), National Regulatory Authorities (NRAs) are required to notify the Commission of their draft regulatory measures. The internal market procedures defined in these provisions aim to ensure the consistent regulation of electronic communications markets across the European Union. The present initiative for a ‘Recommendation for Internal Market Procedures under the Code’ (“the Procedural Recommendation”) updates the existing Procedural Recommendation, dating from 2008. It aims to reflect the new provisions introduced by the Code, that will replace the current legal framework in December 2020, as well as the lessons-learned by both the Commission and the NRAs, since 2008, in implementing these procedures. The initiative seeks to provide NRAs with updated and clear guidance on the form, content, time limits and level of detail of the notifications and related procedures under the Code.

Objective of the consultation

By means of the Consultation, the Commission services sought stakeholders’ feedback on their experience with implementation aspects of the existing Procedural Recommendation, as well as views and suggestions concerning the need for any clarification of procedural issues related to both existing provisions and new provisions to be introduced by the Code. A publicly accessible questionnaire was posted online (EUSurvey) for 9 weeks. The input requested consisted of two parts:

1. Feedback on the 2008 Procedural Recommendation and current practices (11 questions); and
2. Possible adaptations of the Procedural Recommendation in light of the new provisions in the Code and other possible improvements (8 questions).

Who replied to the consultation?

Although the consultation was, due to its technical nature, mainly aimed at NRAs and the Body of European Regulators for Electronic Communications (BEREC), the consultation attracted 21 respondents, including 14 NRAs, 3 Industrial associations, 3 Service providers and BEREC. More than half of the total Member States’ NRAs participated in this consultation.
Therefore, the consultation attracted a representative sample by which the Commission Services can confidently evaluate the opinion of the whole target group.

Preliminary findings observed in the replies

Without prejudice to the in-depth analysis of the replies to be conducted over the coming weeks, the following trends can already be observed from the input received.

• On the means of transmission (Q1) of NRA’s notifications - there is widespread support to maintain the current secure electronic interface, CIRCABC. Some respondents stress that a single or unique system and repository should be used for uploads (not parallel systems) but that an e-mail notification of uploads to CIRCABC should still be sent to registered stakeholders. Service providers called for even more transparency, via CIRCABC, on the notified text and on deliberations between the NRAs and the Commission services.
• Concerning the use of the Short Notification Form (Q2) - almost all NRA respondents shared their wish to enhance and extend the use of the Short Notification Form as a means of simplification and approximately half of the NRAs answered that the categories of cases notified using the Short Notification Form should be expanded. Regarding the Standard Notification Form (Q3), respondents contributed input on the form’s future appearance and content, rather than commenting on its existing form.
• The question on the circumstances in which no notifications are required (Q4) received feedback from all the different types of stakeholders participating in the consultation. NRAs were generally positive about clarifying and establishing the criteria for which no notifications are required with a call for a de minimis approach (e.g. measures implementing obligations already imposed, measures having no significant impact on the market). On the other hand, Service providers and Industry association were less eager to extend the criteria for non-notifications.
• On requests for information (RFIs) from the Commission services (Q6) - half of the participants in the consultation identified that they had encountered issues with handling the requests.  Some NRAs indicated that the three-day deadline was too short in complex cases and added that for follow-up questions the one-day deadline was particularly hard to meet. Industry associations also commented that they had problems accessing exchanges for further information between NRAs and the Commission services and requested more transparency and disclosure where appropriate.
• The question on the treatment of confidential information (Q7) attracted many responses. The large majority of respondents had never had any negative experiences with the way confidential information was handled during the notification process and in CIRCABC. A handful of respondents offered suggestions on extra safeguards that could be taken to further enhance confidentiality such as, for example, extra checks by NRAs before notifying texts via CIRCABC and avoiding emails for confidential information (e.g. follow-up RFIs). Concerning the treatment of confidential documents in Phase II investigations, where the opinion of BEREC is needed, respondents stressed that confidential documents should only be shared with individuals who had personally signed a confidentiality declaration. Furthermore, the vast majority of respondents were against sharing, between NRAs, confidential documents via CIRCABC.
• On the requirement for NRAs to communicate final measures (Q9) - the overall majority of NRAs answered that they are not in favour of additional guidance on how NRAs should communicate the manner in which they took utmost of account of the comments received from the Commission, BEREC or other NRAs. Some based this reluctance on the fact that different member states had different internal publication procedures or that NRAs already communicate this information. On the other hand, responses from Service providers and Industry associations overwhelmingly supported more transparency and clarity in this area, stating that it was often very hard to understand how - or if - the NRA took the comments received into consideration in the final measure.  
• On the impact of certain revised provisions in the Code on market definition and analysis and the three-criteria test (Q12) - the majority of respondents, including BEREC, were of the opinion that the revised provisions under Articles 64, 67(1) and 68(6) would have an impact on the content of notifications. Furthermore these contributions suggested that certain adaptations in the procedures could be necessary, such as, for example, integrating the three-criteria test and impact of new market developments (on competitive dynamics and consequently on remedies) in the Standard Notification Form.
• For notifications under Articles 64, 67 & 68, Code (Q5) - respondents agreed that the Commission should recommend that all related analyses (market definition, three-criteria test, SMP assessment & analysis of regulatory obligations) should be notified at the same time to allow a comprehensive analysis of their impact on the market. On the other hand, they did not consider that additional guidance was needed on the links as regards timing and content of notifications on these matters. Some respondents noted that NRAs should maintain ultimate discretion on the timing of notifications, including of notifications on related matters.
• All respondents answered that they found the pre-notification exchanges (Q10) between the Commission and the NRAs to be useful. However, most respondents did not favour detailed guidance on the timing, form and substance of pre-notification meetings. Some respondents mentioned that pre-notification meetings should not lose their informal nature.
• While most respondents had no remarks or suggestions on the current guidance on the calculation of time-periods for notifications (Q11), some comments suggested that the Commission should try to handle time limits with the maximum flexibility and that some guidance on the treatment of official holidays would be welcome.
• Concerning the reinforced role of the Commission and BEREC regarding specific draft measures, including the double lock veto (Q13), many respondents offered input on the categories of information that, in their view, should be included in the notification of draft measures issued under Articles 61(3) and 76(2) of the Code to enable a meaningful assessment. The large majority of these respondents, however, went on to consider that no need for procedural guidance on the implementation of the provisions subject to the double-lock veto was required. Some mentioned that this was because the sequence of the double-lock veto was similar to that of the existing ‘veto’ procedure, hence no further guidance was needed. The general feedback received was that clarification in the updated Procedural Recommendation would also be welcome on matters related to notifications of subsequent individual measures under a pre-notified co-investment scheme (Article 76 and Recital 201, Code) and that for these types of notifications, the Short Notification Form would seem appropriate.
• The vast majority of respondents were open to receiving further guidance on procedural aspects linked to the new provisions on symmetrical measures (Article 61(3), Code) (Q14), with many offering input on what categories of information should be included in the notification of these draft measures. Respondents were also overwhelmingly in favour of further guidance linked to the new commitments procedure (Article 79, Code) (Q15), with about half of them likewise in favour of guidance on the procedural implications linked to recent court judgements (C-397/14 & C-85/14) on certain access obligations (Q18).
• On the other hand, the majority of respondents considered that there was no need for additional guidance on the procedures for the notification of exceptional remedies (Article 68, Code) (Q8). Stakeholders were, also, for various reasons, less convinced about the need for further guidance on matters related to the timing, form and substance of notifications under Articles 80 & 81, Code, and on interactions between the Commission and BEREC (Qs 16 & 17). Several respondents considered that further guidance was unnecessary because the current procedures worked sufficiently well or that clear guidance or provisions already existed elsewhere or directly under the Code and the new or specific provisions could be understood thereunder.

Next steps

The Commission is now conducting an in-depth analysis of the input received (.xls) in this consultation process. The input, although, non-binding in nature, will be given all due consideration by the Commission and feeds into the Commission’s proposals in the drafting of the new Procedural Recommendation in the course of 2020.

Disclaimer: the views presented in this Factual Summary Report are not the views of the European Commission but of the stakeholders that participated in this online consultation.

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