In search of a definition for private electronic communications networks (ECN) and non-publicly available electronic communications services (ECS)

Magda Cocco

Vieira de Almeida, Lisbon; Newsletter Officer, Communications Law Committee

mpc@vda.pt

Rui Gordete Almeida

Vieira de Almeida, Lisbon

ral@vda.pt

Introduction

The rapid advancement of technology has revolutionised the way people communicate, shifting towards electronic means as the primary mode of interaction. This shift has been facilitated by the rise of 5G networks, Internet of Things (IoT) devices, and the increasing convergence between traditional telecommunications and digital services. This is demonstrated by the galloping technological evolution witnessed in multiple areas of the economy supported by these technologies, from healthcare (achieving innovative solutions for remote patient monitoring and telemedicine, among many others) to smart cities (traffic, energy and waste management), and from industry (manufacturing automation or supply chain management) to agriculture (eg, precision farming or crop monitoring).

This evolution has increased the demand for private electronic communications networks (ECN) and non-publicly available electronic communications services (ECS), which play a crucial role in supporting innovative technological solutions enabling individuals, businesses, public institutions, and even things, to exchange information seamlessly across multiple locations and network termination points, with increased security, privacy, performance and customisation.

Directive (EU) 2018/1972 of the European Parliament and of the Council, of 11 December 2018, established the European Electronic Communications Code (EECC), which serves as the core regulatory framework for the electronic communications sector, setting forth the main regulatory principles and rules applicable to providers of ECN and ECS, irrespective of their public and/or private nature.

Despite being a crucial pillar in promoting a competitive, investment nurturing and innovative environment in the sector, the EECC fails in one crucial aspect: on the one hand, defining the boundaries between publicly and non-publicly available ECS and, on the other hand, between public and private ECN.

Throughout this article, we will attempt to demonstrate the interpretative difficulties arising from this lack of definition of the above-mentioned concepts. It is essential to precisely establish the boundaries of these concepts, to give operators a clearer picture of the rights and obligations associated with their electronic communications activity. Furthermore, ensuring the harmonisation of definitions at the level of European Union law would promote legal and regulatory certainty in this regard by providing cross-border consistency and predictability, which could in turn incentivise operators to expand their operations to other Member States.

Achieving a legal definition of private ECN and non-publicly available ECS under the EECC

The EECC undoubtedly establishes differentiated regimes for publicly available and non-publicly available ECS. First and most importantly, this is demonstrated by the fact that several provisions apply only to providers of publicly available ECS and public ECN.

This is the case, for instance, of Article 17 on accounting separation and financial reports applicable to undertakings providing public ECN or publicly available ECS, which have special or exclusive rights for the provision of services in other sectors in the same or another Member State, and Article 40 on obligations relating to security of networks and services, applicable only to providers of such ECN and ECS.

In addition, other provisions seem to apply indiscriminately to any providers of ECS and ECN, regardless of their accessibility to the public. For instance, Article 42 on fees for rights of use for radio spectrum and rights to install facilities, and Article 48 on the main principles associated with the granting of individual rights of use for radio spectrum, both of which apply to any ECS and ECN operators.

Lastly, it should be noted that, at times, the EECC expressly, albeit lightly, acknowledges the existence of non-publicly available electronic communications services. For example, Article 43(1) s2 sets forth the principles that the competent authorities should follow if they consider granting rights to install facilities on, over or under public property to an undertaking authorised to provide electronic communications networks other than to the public.

However, the EECC does not provide an explicit definition of private ECN nor of non-publicly available ECS. Thus, to understand these concepts, it is necessary to gather interpretative clues through a thorough and careful analysis of the EECC.

Resorting to the opposite definitions (ie, of public ECN and publicly available ECS) may be helpful in this regard. Indeed, Article 2(8) of the EECC defines public ECN as ‘an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services which support the transfer of information between network termination points’. Thus, on the contrary, a private ECN could be defined as an ECN that is not used wholly or mainly for the provision of publicly available ECS.

Although the above-mentioned definition of public ECN and the proposed definition of private ECN are supported by the concept of ‘publicly available ECS’, unfortunately, the EECC does not define this latter term. Nonetheless, publicly available ECS are commonly understood to refer to services commercially offered to the general public or a substantial portion thereof.[1]

Assuming this understanding is legally covered by the EECC, one could argue that non-publicly available ECS can be defined as those ECS that are not offered or available to the public at large but are rather self-provided or provided to closed user groups and tailored to meet their communication needs.

The potential contribution of Member States’ national laws: in specific, the Portuguese Electronic Communications Law

Although, in our view, the definitions of private ECN and publicly available ECS proposed above fit the EECC’s wording and are aligned with their traditional understanding, the truth is that the EECC does not establish a clear boundary between them and their respective ‘public counterparts’ (thus, unfortunately, perpetuating the lack of clarity arising from the so-called 2002 directive package, which was replaced by the EECC). This does not fit with the EECC’s general goal of creating a harmonised regulatory framework across EU Member States (Article 1(1) of the EECC).

Considering that the EECC is a directive (which, by definition, need to be transposed into national law in order to be applicable in the Member States) and that it provides for minimum harmonisation only (meaning, in simple terms, that the Member States are allowed a certain degree of flexibility in its implementation into national law, provided that the minimum requirements set out in the EECC are met), the fact that the EECC lacks clear definitions in this regard means that, in practice, it is up to the Member State’s legislator to choose whether (and how) to define private ECN and non-publicly available ECS.

Since, as mentioned, the EECC allows Member States to establish their definitions of private ECN and non-publicly available ECS, a benchmark study could shed light on how the Member States construe these definitions.

Portugal transposed the EECC into national law, on16 August 2022, through Law No 16/2022 (‘Electronic Communications Law’ or ECL). However, similarly to the EECC and the previous national framework (Law No 5/2004, of 10 February), the ECL does not set forth a clear definition for either private ECN or non-publicly available ECS. Furthermore, ANACOM, the Portuguese regulatory authority for the electronic communications sector, has not provided any guidance on how it understands these concepts.

Therefore, a proper regulatory qualification under the ECL of ECN and ECS as, respectively, public or private, or publicly or non-publicly available, must carefully consider any ancillary interpretative elements, either provided by a deeper reading of the ECL itself or by a thorough comprehension of the evolution of the regulatory framework up until the entry into force of the ECL. We will delve into these potential interpretative elements in the following paragraphs.

The Portuguese Electronic Communications Law’s approach to non-publicly available ECS

As stated above, the ECL does not establish a clear definition of non-publicly available ECS. However, taking a step forward in relation to the EECC, Article 16(4) of the ECL does expressly refer to such concept, by categorising self-provisioned ECS as non-publicly available ECS and exempting them from the general authorisation regime. Although not a proper definition, this Article sheds light on the Portuguese legislator’s understanding.

Indeed, this Article seems to qualify any self-provisioned ECS as non-publicly available ECS. However, the question remains as to whether the legislator sought to reserve the concept of non-publicly available ECS for self-provisioned services only, or whether other non-self-provisioned ECS (for instance, ECS provided to closed user groups and tailored to meet their communication needs, in line with the traditional understanding of non-publicly available ECS) could also be deemed as non-publicly available ECS under Portuguese law.

The Portuguese Electronic Communications Law’s approach to private ECN

In our view, achieving a comprehension of the concept of non-publicly available ECS is critical to reaching an understanding on the definition of private ECN. Indeed, given that Article 3(1)(oo) of the ECL (clearly in line with Article 2(8) of the EECC) defines public ECN as those networks ‘used wholly or mainly for the provision of publicly available ECS which support the transfer of information between network termination points’, it could be argued, a contrario sensu, that any networks used wholly or mainly to provide non-publicly available ECS shall be considered as private ECN.

Conclusion

Considering the lack of clarity and harmonisation in the concepts of publicly available and non-publicly available ECS, as well as public and private ECN, it is essential to establish precisely and harmoniously, at the level of EU law, the boundaries of these concepts.

Indeed, technological advancements, particularly in the field of IoT and machine-to-machine (M2M) services, call for dedicated connectivity solutions that require a clear tailored investment and innovation regulatory framework adapted to their technical specificities and which effectively promotes investment and innovation.

In fact, the EECC (and, by extension, national legislations within the EU) establishes, albeit implicitly and indirectly, a differentiated regime for non-publicly available ECS and private ECN, exempting them from certain obligations. This is evidenced by the simple fact that the publicly available ECS and public ECN concepts do indeed exist and are referenced many times in the EECC. For example, in Portugal, providers of non-publicly available electronic communications services and private networks are not subject to security and integrity obligations related to networks and services, which is in line with Article 40 of the EECC.

However, the most crucial step is still missing – namely, establishing clear-cut and predictable criteria to determine which providers and services should effectively fall under this differentiated regime.