knowledge 11 January 2022 |

Path set out for Irish transposition of European Electronic Communications Code

The European Electronic Communications Code (the “EECC”) reviews and consolidates the EU regulatory framework for the electronic communications sector and is set out in Directive 2018/1972 (the “Directive”).¹

The Directive recognises that the convergence of the telecommunications, media and information technology sectors means that all electronic communications networks and services should be covered to the greatest extent possible by a single code established by means of a single Directive.

The EECC updates the following key areas:

• Customer protection

• The Universal Services regime for electronic communications

• The assignment and use of radio spectrum

• Access to infrastructure obligations on operators with significant market power

• Expansion of the regulatory framework to include new market players

The EECC will be transposed into Irish law by means of the Communications Regulation (Enforcement) Bill 2022 (the “Bill”) and the European Union (Electronic Communications Code) Regulations 2022 (the “Regulations”)

Communications Regulation (Enforcement) Bill

The Bill has five main objectives:

• It designates ComReg as the Irish competent authority for enforcement under the EECC

• It sets out a new civil enforcement and an updated criminal enforcement regime for the electronic communications sector

• It updates ComReg’s  investigatory and prosecutorial powers, eg around the gathering of information

• It transposes security provisions in the EECC to ensure that electronic communications services and networks providers are required to ensure the ongoing security of their systems

• It sets out an enhanced customer protections

In particular, in the area of civil enforcement, ComReg will be able to make declarations of non-compliance and impose administrative financial sanctions to a maximum of €5 million or 10% of annual turnover (whichever is the greater) and compel undertakings to pay compensation to end-users. These measures will be subject to confirmation by the High Court. It will also be able to enter into settlement agreements, accept binding commitments from undertakings and impose interim measures.

The new customer protections will include an enhanced alternative dispute resolution process. ComReg will be able to set enforceable minimum quality of service standards that operators must guarantee. There will be a new compensation scheme for specific customer service failings by operators and a new “Customer Charter” setting out the standard of service that customers can expect from them.

European Union (Electronic Communications Code) Regulations 2022

The majority of the EECC will be transposed by way of secondary legislation. The regulations here include provisions relating to the following areas:

• Role of the regulator

• General authorisation and rights of use

• Market entry and deployment

• Access to radio spectrum

• Deployment and use of wireless network equipment

• Access and interconnection

• Universal service obligations

• Access to numbers and services

• End-user rights and enforcement

Next steps

The Regulations and the Bill will be brought into operation at the same time. This timing is dictated by the requirement to transpose certain of the new enforcement provisions by way of primary legislation.

Ireland is late in transposing the EECC but priority has been given to its implementation by Government and a full transposition is anticipated in early course.