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The Department of the Environment, Climate and Communications, on 22 December 2021, published draft legislation intended to give effect to the European Electronic Communications Code (EECC). It is now over a year since the EU deadline for giving effect to the EECC expired and the European Commission has since opened infringement proceedings against Ireland for its failure to do so. Publication of the draft legislation is welcome and provides an interesting insight into the more assertive regulatory enforcement environment we might expect in future.

The EECC updates and consolidates the EU electronic communications regulatory framework. It aims to ensure a clear regulatory regime across the EU. In addition, it includes provisions which aim to foster competition for investments in very high-capacity networks, such as 5G networks, leading to higher connection speeds and better coverage and overall higher quality of service. The EECC also includes enhanced consumer protection measures and brings purely internet-based services, such as private messaging services, within scope for the first time. However, the latter are subject to far fewer obligations than “traditional” services.

The majority of the EECC will be given effect in Ireland by way of secondary legislation, namely the European Union (Electronic Communications Code) Regulations, 2022 (Regulations), a draft of which was published for comment on 22 December 2021. However, the summary of the proposed Communications Regulation (Enforcement) Bill, 2022 (Bill), published alongside the draft Regulations, will also be of interest to stakeholders. For example, the summary indicates that the Bill will, amongst other things:

Significantly Strengthen the Regulator's Enforcement Powers

  • The Bill brings ComReg’s enforcement powers in line with other sectoral regulators.
  • It gives ComReg the power to impose administrative financial sanctions and to require the payment of compensation to end users, in both cases up to a maximum of €5 million or 10% of annual national turnover (whichever greater).
  • Whilst such decisions will be subject to High Court confirmation, they are to be confirmed unless they are shown to be irrational or erroneous in their reasoning or contain a clear error of law.
  • In terms of criminal enforcement, the Bill will significantly increase the maximum potential fine.
  • The Bill also broadens ComReg’s information gathering powers.

Provide for New Consumer Protection Measures

This includes, amongst other things, an enhanced alternative dispute resolution process, a new power for ComReg to set enforceable minimum quality of service standards, a new compensation scheme for specific customer service failings, and a new “Customer Charter” which will act as a “one-stop-shop” for customers to see the standard of service they can expect.

Give Effect to Security Provisions

  • The Bill will give effect to the network and service security provisions contained in Articles 40 and 41 of the EECC.
  • It will also provide a mechanism for the Minister to specify security measures and make guidelines relating to network security.
  • However, it is relevant to note that, in order to streamline the legal obligations imposed on service providers, the review of the NIS Directive proposes to repeal Articles 40 and 41 of the EECC.

Next Steps

Whilst publication of the draft Regulations is to be welcomed and the Bill has been approved by Government for priority drafting, it is unclear when we can expect the full Bill to be published. Given it is intended to enact the Regulations at the same time as the Bill, it remains to be seen whether passage of the Bill will significantly delay enactment of the Regulations.

In the meantime, the Department has given service providers until 11 February to submit comments on the draft Regulations. We recommend that service providers review the draft Regulations and take advantage of this limited but welcome period for input.

For more information, contact a member of our Media & Telecoms team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.

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