Overcoming the Zero-Sum Paradigm in the Reform of the European Telecoms Market

Emilio García

5 mins - 27 de Octubre de 2023, 07:00

From a window in Berlaymont, the European Commission official looks at Europe's telecoms data frigidly: dwindling capitalisation, fragmented market, delay in 5G rollout... At what point had the sector in Europe gone to shit? The European Commission's telecoms policies were like the sector in the European Union, they were screwed up at some point. He thinks: at which point?
It is plausible that this mimicry of the beginning of Vargas Llosa's masterpiece "Conversations in the Cathedral" is happening, particularly after the publication on 11 October of the results of the exploratory consultation on the future of the electronic communications sector and its infrastructure. Telecommunications in Europe is at a momentous crossroads, the lessons of history are a key element in identifying the way forward.

Although it may seem paradoxical to some, the origin of the improving state of the telecommunications market in Europe can be traced back to 2010. At that time, the European Commission published "A Digital Agenda for Europe" and set as one of its objectives the strengthening of the single market for telecommunications services. The reform effort of the European Commission produced in September 2013 the proposal for the "Telecoms Single Market Regulation" (TSM), giving rise to the current regulatory cycle. Unfortunately, national governments saw the proposal as an overreach aimed at over-expanding the powers of the Brussels executive. 

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Today's review of the initial version of the proposed regulation partly proves the member states right. It is enough to recall some of the content eliminated in the regulation finally adopted: ex-ante review by the European Commission of national regulatory proposals, monitoring of the timing, duration, and other conditions of spectrum allocation by member states, definition of common wholesale broadband products across the continent... Only a minimum regulation managed to be approved more than two years later, limited to the European interpretation of the principle of network neutrality and the elimination of mobile roaming surcharges. However, the original proposal for a regulation was a point of no return.

The initial vision of the Single Telecoms Market proposed by the Commission and its rejection by Member States has had a double negative impact on sectoral regulation. On the one hand, a subsequent self-limitation of Brussels' reformist ambitions, which in the 2016 proposal for the European Electronic Communications Code (ECEC) Directive focused on recasting the then existing rules, only extending consumer protection and increasing its powers over national spectrum allocation. On the other hand, Member States' mistrust of the EU proposals, which required a two-year deadline for the adoption of the ECESC and again prevented the Commission from intervening forcefully in spectrum management. In short, TSM unleashed a process with two centrifugal forces that have resulted in a zero-sum game. 

Another area where the European Commission manifests its expansive vision of competences over the single telecommunications market is in merger investigations. Under Community regulation, the Community competition services have habitually taken on the analysis and decision of these cases in the field of telecommunications, even if they are purely national in scope and the cross-border nature is tangential. A paradigmatic case of the above is what is happening with the Joint Venture project between Orange and MasMovil, which is exclusively Spanish in scope. Although the Comisión Nacional del Mercado de la Competencia (CNMC) requested in due time that the case be assigned to it, pointing out its domestic dimension, it was enough for Orange to have a French parent company and MasMovil to have interests in Portugal for the Commission to reject the request.

Commissioner Breton announced that he is working on a Telecommunications Law proposal in his speech at the Tallinn Digital Summit, which however has not been included in the European Commission's work programme for 2024. The ideas for reform put forward by the Commissioner cannot be considered a final basis either, given their dissemination in an unofficial channel and the proximity of the European elections after which the European Commission will be renewed. It is worrying that the Commission's ideas that Breton has verbalised on telecommunications reform do not take as their starting point a recognition and overcoming of the shortcomings detected in its approaches in recent years, for example, in Brussels' obsession with intervening in spectrum management or in the monopolisation of the analysis of competition cases, which are only half-heartedly trans-European.

As the Secretary of State for Telecommunications pointed out on the eve of the recently held informal Telecommunications Council in León: "the challenge is to reframe the debate to achieve a new majority". Thierry Breton's announcement at that meeting of a White Paper on Telecommunications in Europe seems to further the vision of a new beginning, but this requires a real consensus between Brussels and the Member States on the scope of competence in the single telecommunications market, leading to new regulation as a matter of urgency. Real reform of the telecommunications sector in Europe can wait no longer. 
Se puede leer el artículo original en inglés en Cinco Días

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