Goodbye from Watching the Connectives: hello from The Digital Watcher

Rob Bratby

To all my readers, thank you and goodbye. This blog is now an ex-blog. Continue reading

Ofcom consults on revision of (half of) UK’s general authorisation conditions

As anticipated, Ofcom yesterday started a consultation on its plans to update the UK’s Conditions of General Entitlement i.e. the obligations placed on all telecoms operators in the UK that rely on the UK’s general authorisation. Continue reading

UK Government publishes Digital Economy Bill draft

The UK Government today published its first draft of the Digital Economy Bill. As expected, it contains provisions addressing (text taken from Government explanatory fact sheet): Continue reading

UK wayleave reform to create a £1bn windfall for telecoms operators

As discussed previously, perhaps one of the most important pieces of legislation for the telecoms sector proposed in the recent Queen’s speech is reform of the Electronic Communications Code, which deals with the telecoms industry’s access to land in the UK. Continue reading

Ofcom to review and update General Conditions of Entitlement affecting all communications providers operating in the UK

If you read past the Openreach headlines in Ofcom’s Digital Communications Market review, you can find four paragraphs in chapter eight announcing a review of the UK’s General Conditions of Entitlement, which will affect anyone operating a telecoms network or providing telecoms services in the UK  Since individual licences were (largely) abolished in the UK in 2003, providers of electronic communications networks or services have operated subject to the General Conditions of Entitlement (aka General Conditions or GCs). Continue reading

Reforming Openreach’s governance: Ofcom’s proposals

In my last post, I summarised Ofcom’s initial conclusions from its review of the UK digital communications market. One of Ofcom’s conclusions was that the functional separation of BT’s Openreach division (which provides last mile access)  from the rest of BT, and the associated regulation of the relationship between BT and Openreach (implemented by binding undertakings) was not sufficiently effective in constraining BT’s ability to  discriminate against its competitors. As a result Ofcom’s initial conclusion is that governance should be reformed to give Openreach increased strategic and operational autonomy, and although Ofcom very carefully avoid reaching a firm view, they seem to favour legal separation as a mechanism for reform, with lukewarm endorsement of (just) enhanced governance. If implementation of whatever is decided / agreed is ineffective to address the concerns identified, then Ofcom say that they will only then look at structural separation.

Separation options considered

Whilst many of BT’s competitors had asked Ofcom to consider structural separation of BT, Ofcom’s initial conclusion is that the issues that were raised could potentially be addressed through reform of  Openreach’s governance and that at this stage structural separation would be a disproportionate remedy. In reaching that conclusion Ofcom considered eight alternative structures:

8 models of separation

 

 

 

 

 

 

 

 

BT and Openreach currently operate under model 5, functional separation with local incentives. Ofcom’s initial paper discusses the merits of moving to model 6 (reformed governance), 7 (legal separation) and 8 (structural separation) as  ways of addressing the problems they identify.

Structural Separation (model 8)

As well as considering the implications for BT, Ofcom looked at international examples of structural separation including Australia, New Zealand and Singapore. However, all of these were largely driven by a different regulatory imperative – that of ensuring that government investment and subsidy for deployment of broadband networks was made into an entity that was not part of the incumbent. As previously discussed on this blog, the Singapore example serves more to highlight the challenges of achieving true separation and its benefits rather than acting as a blue-print.

Whilst Ofcom’s paper doesn’t rule out structural separation in the future, their decision to look at reformed governance and/or legal separation in the first instance is driven by their desire to be proportionate and choose the least intrusive method of regulation. However, the experience of competition regulators is that detailed ongoing behavioural remedies can be more intrusive than one-off structural remedies, and so the question arises as to whether the same view (which of course will require ongoing regulatory oversight by Ofcom) would be reached if looked at by a competition regulator.

I also had some interesting private comments to my last post, one of which suggested that the real question was whether the boundary between Openreach and BT was in the right place, and that it was perhaps better redrawn with Openreach managing passive assets only – something only touched upon by Ofcom in their consideration of the practicalities of separation.

Enhanced Governance Reform (model 6)

Ofcom flag that one of their main concerns is that “Openreach does not have sufficient strategic and operational autonomy to ensure the equal treatment of all downstream customers.

Ofcom go on to suggest that Openreach’s governance would need, at a minimum to be  to be reformed as follows:

“… solutions to the concerns identified would need to embed further specific behaviours by Openreach in a number of areas, including:

  • More independent governance, with a responsibility to serve all customers equally: Creating an Openreach Board with more independent governance within the current model of functional separation.
  • Increasing Openreach’s autonomy over budget and decision-making: This could address our concerns related to decision-making by giving Openreach increased financial autonomy to take strategic decisions on network investment, network maintenance and operational systems. One way of achieving this would be to increase the delegated authority given to the Openreach Chief Executive from the BT Board to make individual decisions on the allocation and use of funds. One outcome of this increased autonomy could be the ability for Openreach to reach co-investment or risk sharing agreements with operators other than BT.
  • Improving Openreach’s approach to consultation with customers: We want to ensure that Openreach listens and takes into account the views of all its customers in making decisions that could impact downstream operators. Specifically, we could establish obligations for Openreach to consult openly with downstream operators on substantial investment and innovation decisions. For example, commitments to transparency when considering new network investments, consideration of any alternative proposals and consultation at an early stage on any favoured proposals. The EAB, or another independent body, would need to check compliance with such obligations. 
  • Enhancing Openreach’s operational capability: Giving Openreach the ability to draw upon dedicated support services could address our concerns over its operational ability to deliver its priorities. This would ensure Openreach has sufficient internal capability to manage both its strategy and manage external supply arrangements. Such changes would have to be weighed up against any potential loss in efficiency or scale benefits. “

Ofcom then observes that these measures may be “insufficient on their own“. This is quite an interesting formulation from Ofcom – if they don’t think they are sufficient, then why raise as an option? Ofcom then go on (in a somewhat tentative way) to suggest that a stronger set of governance reforms would meet their concerns.

Legal separation of Openreach (model 7)

Ofcom then go on to suggest what appears to be their favoured option, the hive-down of the Openreach business to a wholly owned subsidiary within the BT group i.e. legal separation of Openreach, with the retention of economic ownership by BT, and restrictions on the influence and control by BT of Openreach. Ofcom summarise it as follows:

  • “Separate Openreach Board: Openreach would become a wholly owned subsidiary of BT Group, making the relationship between it and BT’s other divisions more transparent. The Openreach Board would be separate of the wider group and hold executive powers of decision-making over Openreach’s activities in the interests of the legally separate Openreach, rather than the wider interests of BT Group.
  • Responsibility to serve all customers equally: An explicit responsibility for Openreach to treat all downstream customers equally might be established through the objects and purposes of the company in its articles of association.
  • Autonomy over investments and decision-making: The new Openreach Board might be given more autonomy over capital investments and the broader use of cash within the business.
  • Ability to raise funds: There are different options for how a wholly owned subsidiary could raise funds. There may also be appropriate ways for BT Group to finance Openreach without directly influencing how the funds are spent. Alternatively, Openreach could raise funds directly from the market or fund network investments through contributions from downstream providers, secured by contract.
  • Statutory accounts: An important aspect of the model is that BT Group shareholders would retain full ownership of Openreach and continue to benefit from any associated profits. As a legally separate subsidiary Openreach would be required to file full statutory accounts, including a separate balance sheet, profit and loss statement, and cash flow. This would improve transparency of cost and asset allocations.”

Whilst Ofcom recognise that this approach creates some implementation challenges it remains to be seen if they have fully appreciated the costs and complexity of this option, which involves many of the downsides of structural separation, but without removing the incentive to discriminate, which means that it will still require ongoing intrusive behavioural regulation.

Ofcom’s UK digital communications review: BT can keep Openreach (for now…)

On 25 February 2016 Ofcom published its initial conclusions from its strategic review of the UK’s digital communications market. Whilst much of the headline press coverage has focused on BT being able to retain Openreach, provided its governance is reformed, Ofcom’s review goes much wider than the regulation of Openreach and sets the strategic direction for UK telecoms regulation for the next decade.

However, as someone who has seen successive regulators try alternatives including accounting separation, functional separation and now reformed functional separation whilst technology has moved from cellular telephones that could only be said to be mobile if you drove the car carrying them to modern smart-devices what is striking is the persistency of incumbency, and in particular the ‘last mile’ connection. Whilst Ofcom’s proposals go wider than just addressing this bottleneck, the most interventionist regulation is aimed at this problem, which of course tacitly admits that the last strategic review, done just after Ofcom was formed, failed.

The rest of this post explains how Ofcom reached its conclusions.

What is Ofcom trying to achieve?

Legal Duties

Ofcom is of course a statutory body and the Communications Act 2003 sets out Ofcom’s duties, with Ofcom’s primary duties being:

to further the interests of:

(a) …citizens in relation to communications matters; and

(b) …consumers in relevant markets, where appropriate by promoting competition.

Vision

The challenge for Ofcom is understanding how to turn this duty into something that allows it on a day to basis to take decisions, all of which involve trade-offs. This is where the vision comes in, as Ofcom can then test each of its decisions and see whether they help or hinder it achieving its vision. Ofcom explains that in 2016 its ten-year vision is that:

  • everyone in the UK will enjoy fast, reliable broadband services. Most consumers and businesses will move from ‘superfast’ to ‘ultrafast’ broadband, based increasingly on competing networks, and the latest mobile phone technologies will be rolled out across the UK’s geography;

  • the UK will move towards a new fibre future, with widespread availability of competing ‘fibre to the premise’ and cable networks to homes and businesses. As more consumers and businesses enjoy a greater choice of networks, competition will drive both innovation and affordable prices;

  • people who do not have a choice of providers, do not enjoy even a basic level of service (whether through social circumstance or simply due to where they live), or find it hard to take advantage of offers in the market, will be protected through effective, targeted intervention; and

  • the UK will be a world leader in the availability and capability of its digital networks.

Areas of strategic focus

Ofcom then explains that it will organise its work into five main areas to achieve its vision, with a final sixth theme of seeking to reduce regulation being applied across everything that Ofcom does.

The five areas are:

  1. securing a wide availability of services;
  2. promoting investment and competition;
  3. delivering a step-change in quality of service;
  4. strengthening Openreach’s independence; and
  5. empowering and protecting consumers.

Each of these areas are then examined by Ofcom, and its analysis of the issues to be addressed and form the basis for Ofcom’s proposals. In Ofcom’s own words they are:

Securing a wide availability of services

“From a UK-wide perspective, the availability of fixed and mobile services is good. Most consumers can now access high broadband speeds at home and in their place of work, as well as mobile voice and data services while on the move.

However, some areas of the UK do not have access to an acceptable level of service. The starting point for any future communications strategy must be to ensure that everyone shares in the benefits of a modern digital society.

The Government’s plan for a right to decent, affordable broadband is central to our availability strategy. We will prioritise supporting plans for a 10Mbit/s broadband Universal Service Obligation (USO) to ensure that all people and small businesses have access to decent broadband speeds. Over time, we expect that the USO will need to evolve to ensure all consumers and businesses benefit as technologies and services improve.

We will also secure wide availability of services by:

  • enabling further investment in fixed networks, especially the transition from superfast to ultrafast broadband services, through competitive mechanisms wherever possible;
  • exploring options for extending mobile coverage. We will seek to place new coverage obligations on companies who win new spectrum licences. The 700MHz band is particularly well suited to providing such coverage
  • supporting the UK Government’s reform of the Electronic Communications Code; and
  • providing consumers and businesses with accurate, comparable and accessible coverage information across communications services so that they can make better choices about their services.”

Promoting investment and competition

“Our strategic objective in relation to fixed networks is to encourage the large scale deployment of new fibre networks over the next decade, driving the widespread availability of competing ultrafast broadband services.
To deliver this we will:

  • make it easier for competing providers to build their own fibre networks, across as much of the UK as is practicable, by providing them with access to Openreach’s network of underground ducts and telegraph poles;
  • price access to BT’s network in ways that encourage providers to build their own networks while protecting consumers from excessive pricing;
  • deregulate where network based competition is effective; and
  • continue to promote competition based on other forms of access to Openreach’s network, where effective network competition does not arise.

In mobile, there is no change to our existing strategy. We want the UK to continue benefiting from competition between four national network providers, and a range of resellers. We will work to ensure that the necessary wireless spectrum is made available. If we see takeovers or mergers leading to fewer, bigger network operators, and consumers are worse off as a result, this could lead us fundamentally to rethink our approach to competition and investment in mobile services.”

Delivering a step-change in quality of service

“Widely available networks and services alone are not enough. Consumers and businesses also need these networks and services to be reliable and of a high quality. While most consumers report that they are satisfied with telecoms services, their expectations of quality are rising. The sector needs to deliver significantly better quality of service than it does today.

Our concerns include Openreach’s performance, but extend beyond it to all providers. For example, not only are we concerned about the volume of faults on Openreach’s copper network and about how quickly Openreach repairs them; but also about the customer service that retail providers offer when something goes wrong.

For Openreach, we intend to:

  • set more demanding minimum standards, extending them to new areas as necessary; and
  • set wholesale pricing controls that strengthen Openreach’s incentives to make long term investments in service quality.

For the wider sector, we will:

  • drive improvements to service quality by making more information accessible to consumers and businesses; and
  • publish an annual Service Quality Report showing how telecoms companies compare. Well-informed consumers who are able to make informed decisions are better able to hold providers to account for the service quality they deliver.

In addition, we intend to work with industry to improve coordination between providers where this is affecting service quality: for example, to reduce missed appointments and solve consumers’ in-home problems. Finally, we will look to introduce automatic compensation for consumers and small businesses when something does go wrong”

Strengthening Openreach’s independence

“BT has a crucial role to play in ensuring that consumers and businesses enjoy good communications services, given its market position and the continued reliance competitors will have on its network.

However, we are concerned that the current model of functional separation fails to remove sufficiently BT’s ability to discriminate against competitors. Therefore risks to competition remain.

Given the concerns identified, continuing the status quo is not an option. We have decided to reform the relationship between Openreach and BT Group to give the former greater independence and autonomy. Under this new structure, Openreach should have:

  • more independent governance structures and processes, with a responsibility to serve all wholesale customers equally;
  • independent technical and operational capabilities;
  • greater autonomy over its budget, and over its strategic and operational decision making; and
  • an ongoing responsibility to consult with all customers in the same way.

One option that might achieve this is structural separation, but we recognise that this would entail significant disruption. We will therefore consider whether a strengthened model of functional separation could deliver the greater independence and autonomy for Openreach that we believe is necessary. If functional separation cannot be strengthened, we reserve the right to take forward structural separation.

We are now developing detailed proposals, which we will discuss with the European Commission later this year.”

Empowering and protecting consumers

“Even when choices are available, people need practical information and tools to take advantage of what the market can offer. This need becomes increasingly important as communications services increase in diversity and complexity.

To help people make informed choices, we will:

  • publish more detailed information, including on: service quality and customer response; fixed and mobile service availability; and broadband speeds;
  • work to introduce a standard cost comparison measure, such as average monthly cost of the core elements of a service over the contract period, so consumers can more easily compare different products;
  • closely monitor the impact of providers’ adherence to the Advertising Standards Authority’s broadband price advertising rules;
  • work with third parties, such as price-comparison websites, to improve information consumers have to hand before they buy; and
  • identify what more can be done for consumers who are not responsive to this information, for example, through stronger triggers to consider other deals when contracts expire.

We will follow up our work on Openreach network switching with proposals to make mobile switching easier. We will also complete our review of switching triple-play services (i.e., phone line, TV and broadband).

Some consumers will find it difficult to engage effectively with the market regardless of the information available them. We will therefore take more direct action to help protect such consumers, for example, by tracking market prices more closely and intervening directly to provide protections for the most vulnerable.

Finally, we will continue to protect consumers when things go wrong, from issues such as nuisance calls to various forms of fraud.”

 

UK withdraws proposed updates to the Electronic Communications Code

On 22 January 2015, the UK Government withdrew its proposed changes to the Electronic Communications Code.

As the changes were unexpected, more time for consultation is not entirely unwelcome.

However, as the changes in large part were positive, I hope that this is only a delay and the proposals will be brought forward in due course.

UK proposes surprise changes to the Electronic Communications Code

Fibre optic trenchIn a surprise move, on 13 January the UK government announced plans to update the elderly (and, even to the House of Lords, rather incomprehensible) Electronic Communications Code which deals with the rights of telecoms operators to access public and private land.

Whilst the proposed changes in large part adopt the recommendations of the Law Commission’s report on the current Electronic Communications Code, the timing at the end of a coalition parliament and method (being part of a rather hotch-potch Infrastructure Bill) has come as something of a surprise.

The Government’s intention is to reduce the barriers to infrastructure investment and so expects that operators will benefit, relative to landowners, from the changes.

With thanks and acknowledgement to Warren Gordon, the key issues in the draft are:

  1. Better drafting. The plain English approach in the new draft is very welcome.
  2. Clearer interaction with the Landlord and Tenant Act 1954 in relation to seeking to recover possession. The proposed Code amends the 1954 Act to  provide that tenancies, the primary purpose of which is to grant Code rights, cannot benefit from the security of tenure rights under the 1954 Act.
  3. Conferring of Code rights. Code rights are only conferred by written agreement between the occupier and the operator, and the agreement only binds the occupier’s landlord if he agrees to be bound. However, there is a power for the court to impose an agreement by order if: (i) any prejudice caused is capable of being adequately compensated by money; and (ii) the public benefit in access to a choice of high quality electronic communications services, likely to result from the making of the order, outweighs any prejudice. However, an order may not be made if the court thinks that the relevant person intends to redevelop all or part of the land to which the Code right would relate, or any neighbouring land, and could not reasonably do so if the order were made.
  4. Consideration and compensation. Any court-imposed agreement must deal with the consideration to be paid, being an amount representing the market value of the relevant person’s agreement to confer or be bound by the Code right. The market value is assessed on the basis of the value to the operator of the agreement (note, not to the relevant person such as a landowner) and having regard to the use which the operator intends to make of the land. The court may also order compensation for loss or damage and the legislation sets out the bases for compensation. At the core of the new Code is the change to the wayleave valuation regime, which essentially moves valuation away from pure free market principles by requiring the use of the RICS Red Book. According to the Government’s Impact Assessment, this is expected to lead to a 10% reduction in wayleave payments (such as lease payments) from operators to landowners. It is expected that this will result in landowners’ revenue from wayleave payments decreasing by £30 million per year.
  5. Interim agreement. The new code allows an interim order to be made, with presumably matters such as compensation decided at a later and fuller hearing.
  6. Assignment of Code rights/upgrading or sharing use of apparatus. Operators can assign Code rights (although can be required to enter into an authorised guarantee agreement), upgrade or share the use of electronic communications apparatus subject to certain conditions and anti-avoidance provisions.
  7. Continuation of Code rights and bringing agreement to an end. A site provider who is a party to a Code agreement may bring the agreement to an end by giving a notice to the operator. The notice must state the end date, which must fall no earlier than after the end of 18 months from the day on which the notice was given,and also state the ground on which the site provider proposes to bring the agreement to an end (this includes that the site provider intends to redevelop all or part of the land to which the agreement relates or any neighbouring land, and could not reasonably do so unless the agreement comes to an end). Where such a notice is given, the Code agreement comes to an end in accordance with the notice unless within three months from the day on which the notice is given, the operator gives the site provider a counter-notice, and within three months from the day on which the counter-notice is given, the operator applies to the court for an order. However, if the court decides that the site provider has established the redevelopment or other ground, the court must order that the agreement comes to an end. Otherwise, the court can make one of a number of orders specified in the legislation. The operator may be required to make interim payments. There is also a procedure for changing an agreement, which again may involve applying to court for an order (it appears that there is no equivalent of the existing paragraph 20 “lift and shift” right).
  8. Removal of apparatus. There are also rights for a landlord to require the removal of apparatus if one or more of five conditions are satisfied, including the apparatus is no longer used for the purposes of the operator’s network; or there is no person with a Code right to keep the apparatus on the land. There is a procedure to enforce removal of the apparatus.
  9. Not retrospective. The new Code will not be retrospective.
  10. Code rightsCode rights may be granted to wholesale providers as well as service operators. Existing rights do not become Code Rights if an operator is later granted Code Operator status.

For more (and more learned) detail, see Warren’s update here.

ECJ finds Data Retention Directive invalid. What next?

On 8 April 2014 the European Court of Justice ruled that the Data Retention Directive 2006/24/EC interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data. The Directive is declared invalid. Today’s post by Sylvie Rousseau and Matthias Vierstraete explains what the court decided and the implications for national laws across Europe.

A. The Directive

Directive 2006/24/EC strives for harmonization of the Member States’ national legislations providing for the retention of data by providers of publicly available electronic communications services or of a public communications network for the prevention, investigation, detection and prosecution of criminal offences. The initial intention was that service and network providers would be freed from legal and technical differences between national provisions.

The Directive and national laws implementing the Directive were often criticized. The main argument being that massive data retention was said to endanger the right to privacy. The advocates of the rules, however, argued that these rules were necessary for authorities to investigate and prosecute organized crime and terrorism.

B. The Court of Justice

By way of preliminary rulings referred to the Court of Justice of the European Union, the Irish High Court and the Austrian Constitutional Court asked the Court of Justice to examine the validity of the Directive, in particular in the light of two fundamental rights under the Charter of Fundamental Rights of the EU, namely the fundamental right to respect for private life and the fundamental right to the protection of personal data.

Analysis of the data to be retained
The Court of Justice verified the data which providers must retain pursuant to the Directive. This data includes data necessary to trace and identify the source of a communication and its destination, to identify the date, time, duration and type of a communication, to identify the location of mobile equipment, the name and address of the user, the number called, IP addresses, etc. The Court observes that the retention of this data makes it possible to know the identity of the participants in communications, to identify the time of the communication, the place from where the communication took place and the frequency of communications with certain persons (§26).

This data, according to the Court allows very precise conclusions concerning private lives of persons whose data has been retained, such as habits of everyday life, places of residence, movements, social relationships and social environments frequented.

Analysis of the interference with fundamental rights
The Court comes to the conclusion that both requiring the retention of the data and allowing competent national authorities to access those data constitutes in itself interference with the fundamental right to respect for private life and with the fundamental right to the protection of personal data (respectively articles 7 and 8 of the Charter of Fundamental Rights of the European Union) (§ 32 – 36).

The Court agrees with the Advocate General when it states that the interference is “particularly serious”. The Court in this respect holds that “the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the minds of the person concerned the feeling that their private lives are the subject of constant surveillance” (§37).

This interference is according to the Court not only serious, but moreover it is not justified. Besides the fact that the retention of data as required by the Directive does not as such adversely affect the essence of the respect for private life and protection of personal data (content of the communications as such may not be reviewed) and the Directive genuinely satisfies an objective of general interest (public security), the Court is of the opinion that the Directive has exceeded the limits imposed by the proportionality principle (§69):

The Directive covers all persons and all means of electronic communications as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime (§57);
The Directive fails to lay down any objective criterion by which to determine the limits of the access of the competent national authorities to data and their subsequent use (§60);
The data retention period is set at between a minimum of 6 months and a maximum of 24 months without any distinction being made between categories of data and not stating that the determination of the period must be based on objective criteria (§63 – 64);
The Directive does not provide for sufficient safeguards to ensure effective protection of data against the risk of abuse and against unlawful access and use (§66);
The Directive does not require data to be retained within the EU and thus does not meet the Charter’s requirement that compliance control by an independent authority is ensured.
The Court of Justice thus declares the Directive invalid.

C. What’s next?

Following the Court’s invalidation of the Directive, one could wonder how this will affect European legislation and national legislation.

Europe
The invalidity ruled by the Court applies from the day where the Directive entered into force. It is as if the Directive never existed.

The European Commission stated in a first reaction that it “will now carefully asses the verdict and its impacts”. It is not clear whether the Commission will draft new legislation replacing the invalidated Directive. Taking into account the fact that the current Commission’s term only runs until 31 October 2014, it is not much anticipated that new law will be put forward soon.

Member States
Member States having transposed the Directive into national laws may now consider the future of these laws.

In case their national law is a literal transposition of the now invalidated Directive, the national laws meet with the same fate. One may consider that in such situation Member States should redraft their laws in order to be in line with the relevant Directives (95/46/EC and 2002/58/EC) and the Charter of Fundamental Rights of the European Union.

If national law deviates from the Directive, Member States should assess whether the deviations are in line with the relevant Directives (95/46/EC and 2002/58/EC) and the Charter of Fundamental Rights of the European Union.

The Court of Justice’s ruling may also have an impact on national cases concerning the legality of national laws implementing the Directive, as there are several cases pending before the constitutional courts.

  • Austria and Ireland are obviously at the basis of the European Court of Justice’s ruling, following their constitutional courts’ requests for a preliminary ruling concerning the validity of Directive 2006/24/EC;
  • Belgium: On 24 February 2014, the Belgian “Liga voor Mensenrechten” and “Ligue des droits de l’Homme” together filed a complaint before the constitutional court in order to obtain cancellation of the Belgian law implementing the Directive. The complaint was funded through crowdfunding. Following the Court of Justice’s ruling, some political parties already asked government to take the necessary steps and to amend the current legislation;
  • Bulgaria: In 2008, the Bulgarian Constitutional Court found part of the national law incompatible with the right to privacy;
  • France: In 2006, the French Constitutional Court ruled that French law provisions similar to those provided for in the Directive are not contrary to the constitution. However, in December 2013, the French data protection authority (CNIL) reacted vigorously against a new law enabling certain ministries, including French secret services, access to data retained by telecommunications operators, internet and hosting service providers, without prior approval from a judge. On that occasion, the CNIL called for a national debate on surveillance issues which could be influenced by the recent ECJ’s ruling.
  • Germany: The German Constitutional Court already declared the German implementing act unconstitutional in 2010;
  • Romania: In 2009, the Romanian Constitutional Court declared the national law on data retention unconstitutional as breaching, among others the right to privacy and the secrecy of correspondence;
  • Slovakia: In 2012, a complaint was filed before the constitutional court in order to assess the conformity with the constitution;
  • Spain: The Directive was implemented into national laws in 2007. The Spanish data protection authority (AEPD) had voiced its reservations about the Directive and requested the Government to accompany the implementation of these rules with measures curtailing the impact on data subjects’ privacy;
  • Sweden: In May 2013, Sweden was ordered to pay the European Commission 3 million EUR because Sweden had failed its obligation to timely implement the Directive;
  • United Kingdom: As yet there has been no official comment from the UK government or the Information Commissioner on the ruling of the Court of Justice. Controversial 2012 proposals for a Communications Data Bill to overhaul and significantly extend the UK’s data retention obligations were already in the political long grass – and the Court of Justice’s ruling means they are likely to stay there as we understand it.