Evolution of the current legal framework

When the telecommunications sector was controlled by public service monopolies, specific national undertakings were granted exclusive rights to install networks and services at a national level.[1] However, this changed with a marked growth in the application of information technologies and following the European Commission’s promotion of competition and progressive liberalization, starting in the late 1980s.[2] Several directives were adopted to promote such liberalization, which eliminated the exclusive rights of public undertakings to provide telecommunications services or equipment. As a consequence, the Member States, albeit reluctantly, had to withdraw the exclusive rights granted to the national undertaking, so that the telecommunication market could be opened to new operators.[3] This process resulted in a liberalization of telecommunications services in the majority of the Member States by January 1998.[4] Under the new liberalized order, the provision of formerly public welfare services was now primarily determined in competitive markets, by private companies.[5]

In addition, the above liberalization was accompanied by harmonization measures. A key comprehensive regulatory framework was adopted on 24 April 2002[6] to simplify the relevant legislation. The objective of this framework was to encourage competition in electronic communications markets, improve the function of the internal market, and guarantee basic consumer interests. Moreover, it aimed to protect users and to facilitate access to particular services for disabled persons. Article 2(c) of the Framework Directive, defines ‘electronic communication service’ as ‘a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, (...)’’.[7]

Consumer rights were mainly based on two directives: Directive 2002/22/ EC on universal service and users’ rights (USD), and Directive 2002/58/EC on the protection of privacy and of personal data.[8] These were then supported by some additional legislative acts, such as the Roaming Regulation which entered into force in June 2007.[9]

The two directives were amended on 25 November 2009 by a single ‘Citizens’ Rights’ Directive 2009/136/EC[10] with the adoption of the ‘telecom reforms package’. These new telecom reforms in 2009 were necessary to improve consistency of regulation across Europe, and to adapt to the latest technological developments, improving consumer protection on the basis of Article 114 TFEU (ex Article 95 EC). The broader legislative framework introduced by these reforms consists of two main directives, one on ‘Better Regulation’[11] and another one on ‘Citizens’ Rights’ mentioned before,[12] as well as a regulation establishing a new EU oversight authority, the ‘Body of European Regulators for Electronic Communications’ (BEREC).[13]

The ‘Citizens’ Rights’ Directive is particularly relevant for consumer protection, as it introduces important changes protecting and empowering users of electronic communications services.[14] It deals with access to services, contractual rights, privacy, and policy participation. This chapter will assess key provisions of this directive and examine the relevant case law, starting with the right to access electronic services.

  • [1] See P. Nihoul & P. Rodford, EU Electronic Communications Law: Competition and Regulation inthe European Telecommunications Market (Oxford: OUP, 2004), fn. 1.97.
  • [2] This change was also supported by an activist stance of the ECJ in favour of a pro-competitivereading of Art. 106(2) TFEU (ex Art. 86(2) EC, ex Art. 90(2) EEC).
  • [3] P. Larouche, Competition Law and Regulation in European Telecommunications(Oxford-Portland: Hart Publishing, 2000), pp. 35-60.
  • [4] See also the European Commission’s website for information on Europe’s information society: .
  • [5] For an overview, see Damjanovic & de Witte, Welfare Integration through EU Law: The OverallPicture in the Light of the Lisbon Treaty (Florence: EUI Law, 2008 ), EUI LAW WP, 2008/34, pp. 10-11.
  • [6] Directives 2002/21/EC on a common regulatory framework for electronic communicationsnetworks and services, OJ L 108/33, 24.4.2002, 2002/19/EC on access to, and interconnection of,electronic communications networks and associated facilities, OJ L 108/7, 24.4.2002, and 2002/20/EC on the authorisation of electronic communications networks and services, OJ L 108, 24.4.2002.
  • [7] Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, OJ L 108/33, 24.4.2002. This Directive was amended by Directive2009/140/EC, as explained below.
  • [8] Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, OJ L 108/51,24.2.2002 and Directive 2002/58/EC concerning theprocessing of personal data and the protection of privacy in the electronic communications sector,OJ L 201/37, 31.7.2002.
  • [9] Regulation (EC) No 717/2007 (amended by Regulation (EC) No 544/2009) on roaming onpublic mobile communications networks; now Regulation (EU) No 531/2012 of 13 June 2012 onroaming on public mobile communications networks within the Union.
  • [10] Directive 2009/136/EC of 25 November 2009 amending Directive 2002/22/EC andDirective 2002/58/EC and Regulation (EC) No 2006/2004, OJ L 337/11, 18.12.2009.
  • [11] Directive 2009/140/EC amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC onthe authorisation of electronic communications networks and services, OJ L 337/37, 18.12.2009.
  • [12] Directive 2009/136/EC,OJ L 337/11, 18.12.2009.
  • [13] Regulation (EC) No 1211/2009 establishing the Body of European Regulators for ElectronicCommunications (BEREC) and the Office, OJ L 337/1, 18.12.2009.
  • [14] Directive 2009/136/EC, OJ L 337/11, 18.12.2009.
 
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