17th Mar 2022
Directive (EU) 2018/1972 establishing the European Telecommunications Code (the “EECC”) was transposed in Cyprus by means of enactment of the Law on the Regulation of Electronic Communications of 2022 (the “Cyprus Electronic Communications Law”), which is the main piece of transposing legislation, and by way of two amending Laws to already existing pieces of legislation; namely the Law amending the Regulation of Electronic Communications and Postal Services Law and the Law amending the Radiocommunications Law.
The former of these two amending laws essentially deletes the provisions concerning electronic communications, which are now covered by the Law on the Regulation of Electronic Communications of 2022, and the latter amending Law transposes the provisions of the Code in relation to spectrum.
All abovementioned laws were published in the Official Gazette of the Republic of Cyprus and entered into force on 4th March 2022.
The European Electronic Communications Code that was adopted in 2018, amends and codifies into one single instrument the four pre-existing Directives dating from 2002 and amended in 2009: the Framework, Authorisation, Access and Universal Service Directives.
In essence, the Code seeks to modernise the European regulatory framework for electronic communications to accommodate the rapid technological developments that the sector has seen in the last decade, to enhance consumer’s choices and rights, ensure higher standards of communication services, as well as boost investment for more connectivity and digital innovation, in particular for the development of 5G and Very High Capacity Networks (VHCNs).
Below, we highlight some of the main changes brought about by the Code:
New broadened definition of “electronic communication services”
The Code and the Cyprus Electronic Communications Law provide a new definition of an “electronic communication service”, to include a new category, namely the interpersonal communication services. These are services enabling interpersonal and interactive exchange of information through electronic communications networks between a finite number of natural persons, which is determined by the sender of the communication. This could include voice calls, emails and messaging services.
This change aims to expand the scope of application of the legislation on electronic communications to the so-called Over the Top (OTT) providers, which have penetrated the traditional telecommunications market over the last few years. Such interpersonal communication services may be either number- based or number- independent.
Pursuant to the Cyprus Law, microenterprises which offer number-independent interpersonal communication services are subject to only selected obligations imposed on electronic communication service providers. Furthermore, the provision of number-independent interpersonal communication services is exempt from the general authorisation regime.
The definition of “electronic communication service” now also explicitly includes machine-to-machine communications and transmission services for broadcasting.
Interestingly, the Code also clarifies in the preamble that communication services provided to end-users in exchange for the provision of personal or other data, or in exchange for access to information without actively supplying it, or where the end-user is exposed to advertisements as a condition for gaining access to the service in question, shall be treated as services provided for remuneration and thus constitute electronic communication services, within the meaning of the Code.
The Code promotes the deployment and take-up of VHCNs and makes several changes to the network access regulatory framework. The powers introduced are designed to shift the market from reliance on access to the incumbent’s infrastructure to an environment that can better support and incentivise investment from incumbents and new entrants alike. Some of the provisions are also intended to reduce costs and simplify the process of rolling out new networks.
In this context, the Code and the Cyprus Law introduce rules on co-investment. The effect of these is that where an operator with significant market power (SMP) collaborates with an operator who does not have SMP, the new infrastructure will be exempt from the access rules that would otherwise apply to the SMP operator. In this context, a so-called commitments procedure is introduced, whereby the Commission has the power to make access and co-investment offers made by an SMP provider binding.
Strengthening of consumer rights
The Code reinforces consumer protection by including provisions regarding, inter alia, non-discrimination, information to be provided to end-users prior to the conclusion of a contract for communication services, the possibility to compare offers, tariffs and quality of services, the possibility to monitor the level of consumption of services included in a subscription.
While the Cyprus Law sets the ground for such consumer rights by including provisions imposing obligations on ECS providers in this regard, the specifics of such obligations will be determined by the Communications Commissioner in a relevant Regulatory Decision. By way of example, the Cyprus Law stipulates that the content and the form of the information that providers must give to consumers, as well as the summary thereof, and any additional information that must be provided to consumers with disabilities shall be determined by way of a Regulatory Decision of the Communications Commissioner.
Such pre-contractual information requirements shall not apply to microenterprises providing number-independent interpersonal communications services, unless they also provide other electronic communications services.
The Code seeks to harmonise measures and procedures for spectrum management while maintaining powers for member states to manage spectrum in line with their national needs. It strengthens powers to support efficient and effective spectrum use, promotes competition, the timely roll-out of 5G services and the widespread availability of mobile connectivity. To this effect, it introduces a minimum license duration of 15 years with a possibility for extension and more detailed processes for the renewal, transfer, sharing, and lease of spectrum rights.
The Code introduces amendments to what member states are required to provide under universal service, including an extension of the same to broadband. Pursuant to the provisions of the Cyprus Law, the Communications Commissioner shall ensure that consumers, including microenterprises and not-for profit organisations, have affordable access to adequate broadband internet service and voice communications at a fixed location. Furthermore, the Communications Commissioner shall ensure the affordability of adequate broadband internet access and voice communications services other than at a fixed location, where he consider that this is necessary to ensure consumers’ full social and economic participation in society. As with other matters, the Commissioner shall publish in a Regulatory Decision the details of the universal service obligations.
[Legal update prepared by Senior Associate Ioanna Sapidou]