Universal services in secondary law
The new ‘Citizens’ Rights’ Directive gives a more precise indication of the basic principles and application of universal services. As stated in Article 1, the objective of the directive is to ensure the availability of good quality, publicly available services and to deal with cases where the needs of the consumers are not satisfactorily met by the market. Key provisions concern access to telephony services from all locations (Articles 4 and 26) and equal access to basic services for disabled and financially disfavoured consumers (Article 7(1)).
Article 4, on the provision of telephone services, requires Member States to ensure that all ‘reasonable requests’ for connections at fixed locations to a public telephone network have to be provided by at least one undertaking. This is particularly important for consumers who live in rural or isolated areas, where the connection costs would be too high for providers to spontaneously offer the service. Article 4(2) states that the connection provided must allow consumers to receive local and international telephone calls, and that it should also permit functional Internet access. Following a similar logic, Article 26 requires that emergency calls have to be made available for free, under the single number ‘112’ to be reachable from any phone in the entire EU. An equivalent access to emergency services has to be provided for disabled users (Article 26(4)). Furthermore, Article 27(a) requires that Member States promote ‘harmonised numbers for harmonised services of social values’.
Article 7 includes particular social provisions, granting to disabled users equal access to electronic communication. In particular, Article 7(1) states that ‘Member States shall take specific measures to ensure that access to, and affordability of, the services identified in Article 4(3) and Article 5 for disabled end-users is equivalent to the level enjoyed by other end-users’. In turn, the services identified in Articles 4(3) and 5, which are designed especially for disabled consumers, comprise public text telephones for the deaf or speech-impaired, directory assistance for the blind, as well as special emergency services. Furthermore, depending on the national context, Member States may take specific measures, which allow disabled end-users to have a wider choice of service providers available to the majority of end-users (Article 7(2)).
Besides the aforementioned Articles, a set of provisions ensures the affordability of electronic communications and cost control mechanisms for consumers (Articles 9 and 10). According to Article 9, Member States may ‘require that designated undertakings provide to consumers, tariff options or packages which depart from those provided under normal commercial conditions, in particular to ensure that those on low incomes or with special social needs are not prevented from accessing the network’. This is important because, as a 2007 ‘Eurobarometer survey’ on services of general interest has shown, a large number of consumers have been excluded from services of general interest owing to a lack of resources.
Furthermore, Annex I of the directive describes some ‘facilities and services’ which, as per Article 10, should be provided to help individuals control their expenditure. These include itemized billing by the provider (which should be detailed enough to facilitate verification), the option to selectively block certain numbers, and the possibility of pre-payment in order to better control expenditures.
The national governments are bound by the directive, which defines the extent to which Member States can impose obligations within a universal service context. Furthermore, the directive determines that the costs of the universal service provisions are to be reimbursed to the provider, but only when it is shown that the service had to be provided at a loss, and that it has been provided outside normal commercial standards.
The electronic communications market is evolving rapidly with technological innovations which can change the concept and scope of universal services in this field. One way of measuring the essential nature of a basic service is to determine whether the majority of consumers use a certain item of technology as a basic part of their life. The directive thus set a periodical review of its scope, and the European Commission conducted a first review in 2005. In September 2008, the Commission published a Communication on the future scope of universal service obligation (USO). One key finding was that, from 2003 to 2007, broadband use in the EU had increased significantly in households but with striking gaps between different EU countries. As the objective of the Commission was for all EU citizens to be eventually connected to high-speed Internet broadband, the report raised the question of whether the Commission should broaden the scope of universal services to broadband. The conclusion was that there was no need to extend the definition of universal services in this regard, as broadband was not yet used by the majority of people.
Access to electronic communication services can be considered a capability instrument, as it enables individuals to participate more easily in several aspects of social life, work, and economic interactions. In terms of inclusion, this is particularly important for elderly, disabled, or financially disadvantaged consumers Irom a capability perspective. As already discussed, increasing consumers’ capability is not only socially desirable, but is also market-promoting. For instance, access to the Internet helps consumers to compare and discuss products but, above all, allows them to reach markets which would otherwise be beyond their reach. This promotes competition, consumer welfare, and ultimately market integration.
To conclude, the new ‘Citizens’ Rights’ Directive, with its emphasis on inclusion and empowerment, is a sign that the EU consumer framework is evolving in a socially oriented direction.
-  Directive 2009/136/EC of 25 November 2009, amending Directive 2002/22/EC of 7 March2002 on universal service and users’ rights relating to electronic communications networks andservices, OJ L 337/11, 18.12.2009.
-  The price of the service is determined by national regulators.
-  Special Eurobarometer 2007 Report 260, ‘Services of General Interest’.
-  The universal provider has to be chosen by the national regulators through objectivecriteria.
-  The directive is conscious of the evolving nature of universal services; the preamble to its predecessor 2002/22/EC states that ‘The concept of universal service should evolve to reflect advancesin technology, market developments and changes in user demand’.
-  See the Communication from the Commission on the first review of the scope of universal service in 2005-2006: COM(2005) 203 and COM(2006) 163.
-  COM(2008) 572, Communication from the European Commission on the second periodicreview of the scope of universal service in electronic communications networks and services inaccordance with Article 15 of Directive 2002/22/EC, Brussels, 25.9.2008. More recently anotherreview was undertaken by the Commission, see: COM(2011) 795 Communication from theCommission, Universal service in e-communications, Brussels, 23.11.2011.