13 August 2020

In December 2018 the European Electronic Communications Code (EECC) was published in the official journal of the EU, providing Member States with two years to implement it into national law. With the 21 December 2020 deadline now on the horizon, the Department for Digital, Culture, Media & Sport has published its responses to the consultation submissions that were received in September 2019. These responses will inform how the EECC will be transposed into UK law.

As an overview, the EECC creates a revised telecoms regulatory framework for EU Member States. Its core objectives are to:

  • Drive investment in very high capacity networks and services through sustainable competition, such as supporting the roll-out of full fibre networks
  • Support efficient and effective use of radio spectrum frequencies, in particular to support the roll-out of 5G
  • Maintain the security of networks and services
  • Provide an improved level of effective protections for consumers.

What changes will be implemented in the UK?

The consultation response sets out the UK government’s key proposals flowing from the 2019 consultation submissions and the implementation of the EECC itself. Some key points that were raised:

Access and Investment Incentives

The government’s key objectives are to provide Ofcom with new powers to impose pro-investment regulations, focussed on promoting higher capacity networks and helping industry implement high capacity networks by making build-plan information available and promoting co-operation between networks to support primarily rural deployment of infrastructure.

In almost all areas of the consultation the government stuck with the minimum standards required by the EECC, for instance declining to implement a discretionary designation mechanism, which would have allowed the government to clarify deployment plans for 'unserved areas' (i.e. areas where there is little or no telecoms service, such as certain rural regions, because it is uneconomical for providers to install infrastructure). The response notes the government took the 'overarching approach of a minimal transposition', meaning it has declined to go beyond the minimum requirements.

One key change is that Ofcom’s market review period will be increased from three to five years under the EECC. This means that Ofcom will review the level of competition in telecoms markets, and impose consequential regulatory intervention, less frequently, in order to give more certainty to infrastructure investors.

Radio Spectrum

The government’s key objectives are to ensure the full spectrum is efficiently used, improve mobile coverage, encourage investment in 5G and promote competition in the mobile markets. The government believes the EECC supports this and strengthens powers to support spectrum roll-out, including for 5G.

Again, the government chose a minimal transposition approach. For instance, despite the option to increase flexibility, the government has stuck with Ofcom managing the spectrum, has declined to implement an optional 'use it or lose it' mechanism for spectrum licences, and has declined to implement optional roaming obligations (meaning an end user could access any network in 'not-spots') on mobile network providers.

The auction of the 5G spectrum will continue as proposed by Ofcom. Under the minimum standard in the EECC, Ofcom will have an additional (but optional) power to require providers share equipment in costly or difficult to install areas.

End-User Rights

The EECC provides additional protections for end-users. However, in light of COVID-19, Ofcom issued a statement on 7 May 2020 that providers will have at least 12 months to implement any changes (regardless of the 21 December implementation date), so that resources can be allocated to respond to the crisis.

The EECC does add tools to help protect consumers. For example, Ofcom must set up an independent comparison tool, most likely by accrediting one or more existing comparison website(s). The government will also set up new protections pursuant to the EECC for 'bundled' products, where services like TV subscriptions, broadband and phone lines are sold together, to improve transparency and consumer termination rights. The minimum standards in the EECC also give consumers greater rights to switch providers with minimal loss of service.

Affordability was also addressed, as the EECC legislated for countries to provide a 'universal service'. The government did not go so far as to implement any changes, other than to reserve powers to mandate affordable pricing or a universal mobile service if it needs to do so in the future. 

Legal Framework

The EECC must be transposed into UK law on or before 21 December 2020 under EU law - a requirement which still applies during the Brexit transition period. This means that the UK is still required to implement the minimum standards within the EECC.

The current legal framework in the UK transposes the existing EU directives into UK law predominantly via the Communications Act 2003 and the Wireless Telegraphy Act 2006. The transposition of the EECCs will amend these acts accordingly, as well as grant Ofcom additional powers. The strategy notes that the UK played a 'leading role' in the negotiations for the EECC and that the EECC reflects UK best practice. However, due to Brexit, the UK will not transpose certain provisions in the EECC that allow for the creation of new cross-EU regulatory bodies and powers.

What categories of providers are affected?

Traditional Electronic Communications Networks and Services (ECNs and ECSs respectively), such as ISPs, who are regulated under the current regime will have to adopt the changes required by the EECC. However, the EECC also extends the definition of an ECS to include 'interpersonal communications services'. This means that 'over-the-top' (OTT) providers, like Skype and WhatsApp, will now fall into the regulatory environment, which is in line with the ECJ’s 2018 ruling that Skype was an ECS. This expansion of scope will be most keenly felt by OTT providers in the context of the enhanced end-user protections that the EECC will require they implement.

UK Political response

The Ministerial forward highlights the increased reliance on digital infrastructure in light of the pandemic, and the requirement for a 'collaborative approach' between government, Ofcom and industry to bring these changes to market. The code is also seen as an opportunity to implement the 2018 Future Telecoms Infrastructure Review and the 2020 budget, which committed a £5 billion investment in gigabit-capable broadband and 5G roll-out, with a focus on getting services to the hardest-to-reach 20 per cent of the country, mostly in rural locations. It follows on from the UK government’s £1 billion Shared Rural Network initiative, which saw four major telecoms providers jointly invest in order to hit the goal of providing 95 per cent 4G coverage to the UK by 2025.

That being said, the actual implementation of the EECC tries, as far as possible, not to change the 'status quo', particularly as the transition period will soon end and the UK will be able to make future changes without EU intervention.

If you require assistance assessing the impact of the EECC on your business, please contact your usual Burges Salmon contact.

This article was written by trainee solicitor Andrew Wilson.

Key contact

Cheryl Parkhouse

Cheryl Parkhouse Senior Associate

  • Nuclear 
  • Projects
  • Public Sector

Subscribe to news and insight

Burges Salmon careers

We work hard to make sure Burges Salmon is a great place to work.
Find out more