Explanatory Memorandum to COM(2023)94 - Measures to reduce the cost of deploying gigabit electronic communications networks and repealing Directive 2014/61/EU (Gigabit Infrastructure Act)

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dossier COM(2023)94 - Measures to reduce the cost of deploying gigabit electronic communications networks and repealing Directive 2014/61/EU ...
source COM(2023)94 EN
date 23-02-2023


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

A high-quality digital infrastructure is an increasingly significant cornerstone of the whole economy, taking its place alongside electricity, gas, water and transport networks. Excellent and secure connectivity for everybody and everywhere in the EU is becoming a prerequisite to deliver sustainable economic and social benefits based on modern online services and fast internet connections.

Given the fast advances in digital technologies, significant network investment is required to keep up with increasing bandwidth demands. The 2020 Communication on ‘Shaping Europe’s Digital Future’ 1 estimated that, for digital infrastructure and networks alone, the EU has an investment gap of EUR 65 billion a year. In view of this, the Commission announced a revision of the 2014 Broadband Cost Reduction Directive 2 (BCRD).

A major part of network deployment costs can be attributed to: (i) inefficiencies in the roll-out process related to the use of existing passive infrastructure (such as ducts, cabinets, and antenna installations); (ii) difficulties in the coordination of civil works; (iii) burdensome administrative permit-granting procedures; and (iv) bottlenecks in deploying in-building physical infrastructure. To facilitate and incentivise network roll-out, the Commission proposed the Broadband Cost Reduction Directive in 2013 with harmonised measures to reduce the cost of deploying high-speed electronic communications networks 3 .

In the meantime, the digital agenda targets on which the BCRD was based have mostly been met, but they have also become obsolete. The share of households having access to 30 Mbps internet speeds has increased from 58.1% in 2013 to 90.1% in 2021. However, given the increased need of businesses and people for very high-capacity fixed and mobile connectivity, the availability of only 30 Mbps is no longer future-proof. It is also not aligned with the new objectives set out in Directive (EU) 2018/1972 (European Electronic Communications Code – ‘the Code’) 4 for ensuring connectivity and widespread availability of very high capacity networks (VHCN). Moreover, the Council, in its Conclusions on Shaping Europe’s Digital Future of 9 June 2020 stressed that the COVID-19 pandemic demonstrated the increased need for fast and ubiquitous connectivity. It called for a package of additional measures to support current and emerging network deployment needs, including boosting the measures provided for under the BCRD. Therefore, in its Communication ‘2030 Digital Compass: the European way for the Digital Decade’ 5 , the Commission set updated targets for 2030 that better correspond to the expected connectivity needs of the future. Those targets were then reflected and refined in the Digital Decade Policy Programme 6 . The programme sets out a governance structure, including monitoring and a mechanism for close cooperation between the Commission and Member States to ensure the EU achieves its objectives and digital targets by 2030.

This proposal for a Gigabit Infrastructure Act, which is an initiative of the Commission’s regulatory fitness and performance programme (REFIT) 7 , aims to address the shortcomings of the BCRD and contribute to the cost-efficient and timely deployment of the VHCN necessary to meet the EU’s increased connectivity needs 8 .

• Consistency with existing policy provisions in the policy area

The proposal is part of the regulatory framework for electronic communications and is consistent with the other legislative and non-legislative instruments, which are also part of that framework 9 . In particular, the proposal is consistent with other instruments supporting the achievement of fixed and mobile connectivity targets in the EU (i.e. the European Electronic Communications Code). While the Code mainly provides, except in specific cases, for the possibility to impose obligations on electronic communications operators with a dominant position – significant market power (SMP) – in a given electronic communications market, the current proposal addresses undertakings operating an electronic communications network or utilities, regardless of whether they hold SMP.

The proposal is also in line with the Recommendation on a Connectivity Toolbox adopted in September 2020, which aimed to reduce the cost of deploying VHCN and ensure timely access to 5G radio spectrum. The subsequent Connectivity Toolbox 10 agreed by Member States in March 2021 includes 22 best practices to help reduce network costs, which have largely been taken into account in the measures proposed here.

Moreover, the proposal is consistent with the recent Commission proposal for a Union Secure Connectivity Programme 11 , which aims to facilitate broadband access by satellite to areas that lie beyond the reach of other fixed and mobile electronic communications network infrastructure.

Finally, the proposal is consistent with funding initiatives to support deploying broadband networks in rural, remote and other less well-served areas, including the digital part of the Connected Europe Facility (CEF and CEF Digital) 12 , post-COVID-19 recovery funds 13 and national State aid initiatives 14 . The new Guidelines on State aid for broadband networks 15 , recently adopted, also contribute to accelerating and extending broadband deployment by clarifying when public support is in line with competition rules.

• Consistency with other Union policies

The proposal is consistent with the climate targets of the European Green Deal 16 , enshrined in the European Climate Law 17 by the Council and Parliament in June 2021. Digital connectivity infrastructure is essential for achieving the twin digital and green transitions, which are the Commission’s main priorities. Digital infrastructures will play a crucial role in the transition to a green economy as they are important enablers of energy efficiency in other sectors. Furthermore, the major building renovation wave 18 by 2030, triggered by the Green Deal objectives, represents a huge opportunity for achieving synergies and ensuring high performance in in-building infrastructure, including fibre-ready physical infrastructure and fibre wiring. This will reduce the inconvenience for building owners and/or tenants and ensure a more efficient use of national and EU funds available for the major renovation of building stock.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis for this proposal is Article 114 of the Treaty on the Functioning of the European Union (TFEU). This is the same legal basis for the Broadband Cost Reduction Directive, which this proposal repeals. This is justified by the current proposal’s aim to further harmonise the EU’s electronic communications markets and improve the conditions for the establishment and functioning of the internal market.

• Subsidiarity (for non-exclusive competence)

Experience gained with the implementation of the BCRD has demonstrated that the objective of providing the EU with full high-speed broadband coverage could not be achieved by a directive neither by Member States alone within a reasonable time and with the most efficient use of private and public investment. In addition, some provisions of the Code, namely Article 44, partially overlap with the BCRD, and there is a need to streamline the rules. Achieving gigabit coverage by 2030 also requires concerted efforts by all Member States. The measures that Member States have adopted so far to incentivise network deployments and, in particular, reduce the cost and timeframe of deployments are very different, sometimes even in the same Member State. Moreover, expected EU added value has been reduced significantly by the considerable scope for exclusions or exemptions in many different circumstances and in different Member States and the lack of upfront guidelines or common principles on the different measures set out in the BCRD.

The current patchwork of rules creates barriers to cross-border investment. This limits the freedom to provide electronic communications networks and services. It also affects the functioning of the internal market, in particular for inherent cross-border applications, such as connected and autonomous driving, which need ubiquitous VHCN. The current situation also makes it very difficult for electronic communications operators and other stakeholders (equipment manufacturers, civil engineering companies, etc.) to achieve economies of scale. The problems encountered in accelerating high-speed broadband deployment or future VHCN deployments are common to most, if not all, Member States. Reducing costs and streamlining administrative procedures are also common measures that are essential to address these problems. This proposal does not affect the procedural autonomy of Member States to allocate competences internally.

• Proportionality

The proposal complies with the principle of proportionality and is a focused policy action with an intensity proportionate to its objectives of promoting VHCN in line with the Code and of achieving the Digital Decade’s 2030 target of coverage with next-generation wireless high-speed networks with performance at least equivalent to that of 5G and gigabit networks 19 . The proposal’s main benefit is that it will provide for more efficient planning and investment deployment processes (and thus very substantial economies of scale) for public electronic communications network operators. Moreover, the economies of scale and associated savings will go beyond the electronic communications sector and spread to other industries (e.g. equipment manufacturers, construction companies).

These benefits are possible with a minimum of administrative burden. Obligations are limited to certain parts of the network infrastructure where significant cost savings can be expected (e.g. cables are excluded from the definition of physical infrastructure and therefore from the access and transparency obligations set out in this proposal) 20 . The proposed rules also introduce proportionate adjustments (e.g. the option to refuse access requests subject to specific conditions). Moreover, the proposal provides for exceptions where some obligations do not apply in certain circumstances (e.g. access to certain categories of buildings owned or controlled by public sector bodies for reasons of architectural, historical, religious or natural value, or providing information about those buildings). These exceptions contribute to ensuring the proportionality of the proposal and give the appropriate flexibility needed to take national circumstances into account. Furthermore, the proposed measures for digitalising the relevant administrative procedures lets Member States reuse and expand existing digital services and platforms at local, regional or national level that serve the same purpose and comply with this Regulation.

• Choice of the instrument

The instrument proposed is a regulation. This is based on the experience gained with transposing and implementing the BCRD and its proven limitations to tackle the persistent identified problems which resulted not only from its minimum harmonisation approach but also from the low level of harmonisation pursued (e.g. many provisions remained optional and others, like those on transparency only harmonised a minimum number of elements) as well as from the slow and ineffective transposition.

A regulation is the best solution to speed up the network deployment needed to make Europe fit for the digital age. It will have the greatest impact in advancing gigabit network deployment because it is directly applicable to all Member States. In the rapidly evolving digital economy, it is vital to swiftly implement measures that reduce the burden on businesses and public authorities. Conversely, a directive would take time for Member States to transpose into national law, which would delay the entry into application of the proposed rules and jeopardise achieving the 2030 objectives. Unlike a directive, a regulation has direct effect, which is important for rules that mostly apply in commercial relations between electronic communications network providers and network operators.

The Commission therefore is putting forward a proposal for a regulation, the Gigabit Infrastructure Act, to prevent further divergences that hamper providing the relevant services in the internal market and guarantee the same rights and obligations for businesses. This is necessary to provide legal certainty and transparency for all economic actors involved.

The proposal repeals the BCRD, which – due to shortcomings mentioned above - led to a very fragmented and minimal implementation. A regulation, covering all areas of substance with more straightforward rules and a higher level of harmonisation overall, should overcome those shortcomings while remaining proportionate and still leave some flexibility to Member States on specific provisions to reflect specific national circumstances.

3. RESULTS OF EX POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex post evaluations/fitness checks of existing legislation

The BCRD evaluation report accompanying this proposal shows that the Directive was only partially effective and efficient in delivering on its general and specific objectives, which nevertheless are still relevant. Implementation to date broadly shows good performance on the other three analysed criteria: relevance, coherence and EU added value.

Overall, the BCRD has helped the deployment of high-speed broadband (nearly 100 000 km of duct and aerial infrastructure has been reused). Where effectively applied, the BCRD can accelerate deployment of high-speed broadband projects by several months, save between 10-30% in deployment costs and increase network coverage proportionally.

Most progress has been made on the access to existing physical infrastructure and the related transparency measures, while there has been less progress on granting permits, coordination of civil works and access to in-building infrastructure. Moreover, the outcome is patchy across the EU and, even in areas of action with more effectiveness 21 , it does not fully satisfy the need for faster and a more efficient roll-out of electronic communications networks, which have an impact on the functioning of the internal market.

Current BCRD provisions need to be strengthened so they are better aligned with current and future connectivity needs and EU priorities and fully reflect market and technological developments. The continued presence of barriers to rolling out electronic communications networks, the lack of uniform and digitalised administrative procedures and the insufficiently effective single information points (SIPs) still hinder the potential benefits of cost reduction measures that could foster a more cost-efficient and faster deployment of networks across the EU. High deployment costs for VHCN, including fibre to the home and mid-band 5G, undermine deployment incentives and the viability of new deployments. Deploying networks across the EU has been slowed considerably by the lack of coordination between the different authorities responsible for granting permits, the variety of permits needed for network deployment, the lack of electronic procedures for permit applications, and the overall non-respect of deadlines to grant deployment permits, including those for rights of way.

• Stakeholder consultations

Baseline sources of information to prepare this proposal were a literature review, information on the implementation of current policies, analyses of previous monitoring and evaluation activities and reports, input from stakeholders, and dedicated support studies.

In addition, stakeholders were consulted through:

–a call for feedback for the roadmap/inception impact assessment (19 June 2020 to 17 July 2020);

–a public consultation (2 December 2020 to 2 March 2021) based on a broad questionnaire covering both backward- and forward-looking aspects;

–thematic online stakeholder participatory workshops held in January and February 2021;

– the opinion of the Body of European Regulators for Electronic Communications (BEREC 22 ) on the revision of the Broadband Cost Reduction Directive, covering both backward- and forward-looking aspects;

–bilateral meetings, including with market stakeholders and their associations as well as local and regional authorities;

–dedicated workshops, organised by consultants preparing the support study, in June 2021 and January 2022 and ad hoc surveys/consultations.

Overall, stakeholders stress that high-quality connectivity played a vital role during the pandemic and the economic recovery.

A large group of operators and most business associations point out the need for further harmonisation and regulation at EU level, especially on administrative procedures such as permit-granting, to overcome market fragmentation. However, a smaller number of operators indicate the need for giving Member States leeway in how they implement and enforce EU legislation. Public authorities, including BEREC, favour measures at EU level. They call for harmonisation to do just what is necessary to achieve the objectives and indicate some areas where national measures would be more suitable (e.g. guidance on access conditions). Some public authorities expressed certain reservations on the additional burden and costs related to the transparency and digitalisation measures.

Most respondents to stakeholder consultations consider that the BCRD created a good framework for making the deployment of electronic communications networks more efficient, and the measures covered under the Directive are perceived as relevant. However, there are diverse views among stakeholders on how effective the BCRD has been in achieving its general objective to reduce the cost and increase the speed of network deployment.

Stakeholders stress the relevance of the availability of suitable physical infrastructure, including the non-network elements owned or controlled by public authorities, for deploying networks efficiently, in particular for 5G networks. Stakeholders also call for guidance on fair and reasonable terms and conditions as well as on the criteria for refusing access requests. This would help prevent undue refusals on the grounds of the availability of other viable means of access.

Most stakeholders agree that coordination of civil works have the potential to reduce deployment costs. Though BEREC considered it beneficial to extend the obligation to coordinate to all (publicly and privately financed) network deployment projects, many stakeholders argued against such an extension.

The majority of stakeholders consider that the availability of regularly updated minimum information on existing physical information or planned civil works, including georeferenced locations and routes, via SIPs is relevant to network deployment. Public authorities, including local authorities, call for flexibility in reusing and improving well-established digital tools already in place in various Member States, some of them also serving other sectors.

Most stakeholders, including network operators, agree that simplified permit-granting procedures, including the electronic submission of permit applications, would help network deployment.

Stakeholders also call for strengthening the current rules on in-building infrastructure, including raising the ambition from high-speed to VHCN/fibre and proposing an obligation for building owners to deploy and give access to in-building fibre wiring.

• Collection and use of expertise

The Commission relied on a dedicated support study prepared by ICF SA, Wavestone SA and Center for European Policy Study with support from WIK Consult GMBH and EcoAct 23 . This study assessed the effects of measures adopted under the BCRD and took into account, where relevant, the effects of national measures taken to reduce the cost of high-speed broadband deployment. The study also supported the preparation of an impact assessment on the possible policy options to accompany this initiative. Moreover, the national roadmaps and implementation reports submitted by Member States as part of the Connectivity Toolbox 24 , which included a set of 39 best practices aiming to improve network deployment and prompt access to 5G spectrum, provided valuable information on the most appropriate measures and their take-up. Finally, the Commission relied on other sources of information identified through a literature review, including several studies 25 and reports 26 .

• Impact assessment

The executive summary of the impact assessment and the positive opinion of the Regulatory Scrutiny Board can be found on the Commission’s website 27 . The following policy options were considered in the impact assessment.

Contents

1.

Option 0: Baseline


The ‘no-change of the BCRD’ option means there are no additional measures beyond the existing ones. The current BCRD and related regulatory and non-regulatory instruments continue to be implemented as now. This approach could be complemented by sharing good practices, stimulated by exchange initiatives (e.g. Connectivity Toolbox). It is assumed that, under the no-change option, network deployment would continue, but the observed fragmentation would persist; network deployment would not be as effective and efficient as it could be, and the 2030 connectivity targets would be at risk.

2.

Option 1: Update, clarify and align (minimal approach)


This option proposes aligning the BCRD with the Code (VHCN scope instead of high-speed networks), making some currently voluntary measures mandatory (transparency, granting permits) and clarifying certain provisions to align Member States’ different interpretations (such as permits, publicly financed projects subject to civil works coordination, and the fact that assets subject to SMP or State aid obligations are excluded from parallel BCRD access obligations). This option is based on the consideration that a slightly revised directive, coupled with the implementation of the Connectivity Toolbox best practices and the rest of the electronic communications regulatory framework, would improve its implementation. In particular, this improvement would be achieved by partly addressing the problems of the lack of or incomplete information about existing physical infrastructure and delays in and high costs of permit-granting procedures.

Other measures to remove more barriers, leading to a faster and more efficient deployment of electronic communications networks as identified in the evaluation report and public consultation, would not be carried out.

3.

Option 2: Extend and strengthen measures compared to BCRD, exclude VHCN from obligations


This option includes what is proposed in Option 1 but in the form of a regulation. In addition, it extends the scope of access obligations to include publicly controlled/owned (non-network) physical infrastructure (unless where it would be disproportionate) and strengthens obligations on granting permits (e.g. interim deadlines, national permit exemptions, and parallel processing of permits and rights of way). Unlike options 3 and 4, this option exempts VHCN from access and civil works coordination obligations to address investment incentive problems (e.g. unviable network replication).

4.

Option 3 (preferred option): Extend and strengthen measures compared to BCRD with partial harmonisation


Option 3 would largely maintain the measures included in Option 2 and also be in the form of a regulation (including extending the scope of the obligation to grant access to non-network publicly owned assets and permit measures). However, instead of providing for an exemption for VHCN infrastructure, it would set out clearer rules on key aspects of access to physical infrastructure and civil works coordination (such as ‘fair and reasonable’ access conditions, alternative means of access and cost apportionment for coordinated civil works). It would address the problem of unviable network replication by better specifying the grounds for refusing access to physical infrastructure or when requests for coordination of civil works could be considered unreasonable, limiting them to more specific circumstances compared to Option 2. Such rules would be accompanied by guidance at EU level to ensure a consistent application and a harmonised approach to similar problems. This option would also set out that rules and processes on granting permits should be consistent at national level, supported by a ‘one-stop shop’ through a single national digital entry point, establish that permits should be tacitly approved where possible, and limit permit fees to administrative costs. Deployments subject to exemptions from permits would be specified at EU level, and consistency of permit processes would be ensured at national level. This more harmonised approach would address the problems of high complexity, time frames and costs to obtain permits.

To improve transparency and access to information, Option 3 would expand information requirements on existing physical infrastructure, unless where it would be disproportionate, and on planned civil works (proactive notification of all planned civil works). Both sets of information would have to be available in digital format on platforms and be interconnected if possible. Finally, to address the lack of and access to suitable in-building infrastructure, this option would mandate fibre-ready in-building infrastructure and fibre in-building in every new (or majorly renovated) household. This option would also provide for the standardisation of in-building physical infrastructure at national level and guidance on access to in-building infrastructure at EU level.

5.

Option 4: Extend and strengthen, fully applying to private assets, and full harmonisation


Option 4 would introduce maximum harmonisation at EU level. The regulation would include all the measures in Option 3. In addition, it would extend access and transparency obligations to private non-network operators’ assets (e.g. commercial buildings) and obligations of civil works coordination to projects that are not publicly funded. This option would mandate setting up a single digital platform for existing physical infrastructure, planned civil works and, optionally, permit-granting procedures. Finally, this option would mandate the standardisation of in-building physical infrastructure at EU level (compared to standardisation at national level in Option 3).

Considering all the assessment criteria, Option 3 is likely to better fulfil the policy objectives. It also provides the most EU added value, while ensuring Member States have a role in identifying the specific cases in which obligations may not apply to them (e.g. because they would fall within categories set out in the regulation where obligations may not apply for several reasons or because they would end up being disproportionate). Option 3 therefore appears to best balance short-term implementation costs with medium-term benefits and limit unnecessary regulatory burdens.

• Regulatory fitness and simplification

The measures proposed support REFIT and meet the objectives of simplification and the reduction of administrative burden. Several of the proposed changes aim to make rules and procedures clearer, more streamlined and simpler, help parties easily understand their rights and obligations, and promote synergies (for example, on the coordination proposed for renovating buildings to improve energy performance). The proposal also provides for guidance at EU level (access to physical infrastructure, including in-building physical infrastructure, and some criteria for access and civil works coordination rules). This guidance should facilitate the consistent implementation of the rules as well as the resolution of potential disputes.

The proposal involves certain short-term overall costs mainly for administrations. These are linked to setting up consistent permit-granting procedures and digital entry points/platforms for processing permits and providing and giving access to information. However, once these are set up, the regulation is expected to lead to annual administrative cost savings for electronic communications network operators (estimated at approximately EUR 40 million a year). These savings will come from better access to network and public non-network physical infrastructure (approximately EUR 24 million a year), and processing permit applications (approximately EUR 15 million a year). There will also be savings for public authorities, including municipalities (no estimates). These benefits can possibly be extended to other sectors (beyond electronic communications) if permit platforms are implemented and used by these sectors, as is the case already in several Member States. Moreover, construction companies would benefit from standards on in-building infrastructure and wiring, which should guarantee a more efficient installation of ‘fibre to the home’ in new and majorly renovated buildings (no estimate) 28 .

• Fundamental rights

The proposal takes full account of the rights and principles recognised in the Charter of Fundamental Rights of the European Union. In particular, the proposed measures are consistent with Article 16 (freedom to conduct a business), Article 17 (right to property), and Article 37 (environmental protection).

4. BUDGETARY IMPLICATIONS

The proposed Regulation has no implications for the budget of the Union.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

Monitoring of the implementation will be based on a report on the implementation of the regulation to be submitted to the European Parliament and the Council 5 years after the date of entry into force. This report will include a summary of the impact of the measures and an assessment of progress towards achieving its objectives, including whether and how the Regulation could further contribute towards achieving the connectivity targets set out in the Digital Decade Policy Programme 2030. To this end, the Commission may request information from Member States based on relevant indicators and a periodic data collection mechanism, which will be drawn up by the Communications Committee as established by Directive (EU) 2018/1972.

• Detailed explanation of the specific provisions of the proposal

Article 1 – Subject matter and scope

Article 1 updates the scope of the 2014 Directive on the deployment of electronic communications networks, i.e. from high-speed to VHCN to match the new ambitions of the Code and Digital Decade connectivity objectives.

Article 2 – Definitions

This Article contains definitions in addition to those specified in the Code, including VHCN. It extends the concept of ‘physical infrastructure’ to include public non-network assets and introduces a new definition of ‘in-building fibre wiring’ along with a change from ‘high-speed-ready’ to ‘fibre-ready’ in-building physical infrastructure. In addition, taking into account the fast development of providers of wireless physical infrastructure such as ‘tower companies’, and their increasingly significant role as providers of access to physical infrastructure suitable to install elements of wireless electronic communications networks, such as 5G, the definition of ‘network operator’ is extended beyond undertakings providing or authorised to provide electronic communications networks and operators of other types of networks, such as transport, gas or electricity, to include undertakings providing associated facilities, which thus become subject to all the obligations and benefits set out in the Regulation, except the provisions regarding in-building physical infrastructure and access. It also amends the definition of ‘permit’ to reflect the multiple decision-layers that sometimes exist for granting permits and clarifies that civil works refer to ‘deployment of elements of VHCN’ for easier reference throughout the text.

Article 3 – Access to existing physical infrastructure

Article 3 extends the access obligation to physical infrastructure that is not part of a network but is owned or controlled by public sector bodies. It also provides for exceptions for certain categories of buildings (e.g. for reasons of public security, safety and health) and introduces the possibility for Members States to set up a body to coordinate access relating to public assets.

It clarifies the reasons for refusing access and avoids duplication of access obligations when these are already imposed under the Code/State aid rules on the same assets.

It provides for the possibility for the Commission to issue guidance on the application of access provisions.

This Article also builds on the precedent set out in Article 57 of the Code for the installation of small wireless access points.

Article 4 – Transparency on physical infrastructure

Article 4 mandates the provision of minimum information on existing physical infrastructure by network operators and public sector bodies owning or controlling physical infrastructure, including georeferenced information, via SIPs in electronic format.

Access to this minimum information could be restricted, for example, for security reasons or certain categories of buildings. Similarly, the obligation to provide minimum information would not apply when the obligation would be disproportionate based on a cost-benefit analysis.

Article 5 – Coordination of civil works

Article 5 clarifies that the obligation to coordinate civil works relates to civil works that are ‘fully/partially financed by public means’.

It sets out that requests for coordination of civil works should be filed at least 2 months before the submission of the final project and specifies when a request to coordinate civil works can be considered unreasonable.

It provides for the possibility for the Commission to issue guidance on the application of civil works coordination provisions.

Article 6 – Transparency on planned civil works

Article 6 provides for the right of access to minimum information for all (public and private) planned civil works carried out by network operators via SIPs in electronic format, including georeferenced information.

Such access could be limited, for example, for network security, national security or business secrets. The transparency obligation would not apply in certain circumstances, e.g. in an emergency or for national security reasons.

It provides for the earlier and proactive provision of minimum information on planned public civil works by all network operators via SIPs to facilitate the potential coordination of civil works.

Article 7 – Procedures for granting permits, including rights of way

Article 7 introduces a new principle of nationally consistent rules governing the conditions and procedures applicable for granting permits, including rights of way. It makes the submission of applications in electronic format via SIPs mandatory.

It mandates the Commission to specify the categories of deployments that will be exempted from permits by way of an implementing act.

It strengthens transparency by not considering permit applications for civil works admissible if the minimum information provided for in Article 6 has not been made available via a SIP.

It introduces several measures aiming to ensure permits, including rights of way, applications are dealt with within the legal deadlines, e.g. a shorter period to consider the application complete, tacit approval or compensation for damages caused by non-compliance with the deadlines.

Finally, it lays down that fees and charges for permits, including rights of way, cannot go beyond the administrative charges.

Article 8 – In-building physical infrastructure and fibre wiring

Article 8 mandates in-building physical infrastructure, access points and in-building fibre wiring for new and majorly renovated buildings. This includes buildings at the end-user’s location when they are renovated to improve energy efficiency. Exemptions are expanded to address the possible lack of proportionality for specific locations based on a cost-benefit analysis.

It introduces the obligation for Member States to adopt relevant national standards/technical specifications and certification mechanisms. With these certification mechanisms, companies can demonstrate compliance with those standards/technical specifications and qualify for the now mandatory ‘fibre-ready label’, which is conditional on the issuance of the building permit.

Article 9 – Access to in-building physical infrastructure

Article 9 lays down the right for public electronic communications network providers to terminate their networks up to the access point and access existing in-building physical infrastructure. It also provides for refusal of access to in-building physical infrastructure where access to in-building fibre wiring is provided pursuant to obligations imposed under the Code or made available under fair, reasonable and non-discriminatory terms and conditions, including price.

It provides for the possibility for the Commission to issue guidance on the application of provisions for access to in-building infrastructure.

6.

Article 10 Digitalisation


Article 10 provides for a single national digital entry point and access to digital tools, especially when there is more than one SIP or when information is located elsewhere, allowing the exercise of rights and compliance with obligations set out in this Regulation.

Article 11 – Dispute settlement

This provision ensures that any party is entitled to refer a dispute to a competent national dispute settlement body, which must resolve the dispute within shortened time frames (compared with current provisions of the BCRD) and issue a binding decision.

Article 12 – Competent bodies

Article 12 introduces additional requirements inspired by the Code’s institutional provisions. These include: (i) the impartiality and independence of public sector bodies that own/control physical infrastructure; (ii) the structural separation of dispute settlement bodies and SIPs; (iii) the exercise of powers and resources of the competent authorities; and (iv) making the tasks of competent bodies more transparent.

It also provides for more detailed requirements on the right to appeal, building on similar provisions in the Code.

Article 13 – Committee procedure

Article 13 sets the Committee procedure with the Communications Committee established by Article 118(1) of Directive (EU) 2018/1972.

Articles 14-18 – Final provisions

Articles 14 and 15 contain final provisions, including on penalties, monitoring and reporting obligations. The relevant indicators and a data gathering mechanism will be drawn up by the Communications Committee.

Article 16 includes transitional measures where necessary (continuation of the application of some current provisions of the BCRD) in view of the enlargement of the scope to VHCN and the delayed application of some provisions of this Regulation. Articles 17 and 18 include provisions for repeal of the Directive 2014/61/EU and the regulation’s entry into force and application.