The Closing of the Net  "original and valuable"  Times Higher Education

 Report from European Council Meeting (Telecommunications Council) 27 November 2008

Political agreement in the Council on Telecoms Package. Key  compromises on functional separation, pan-European regulator and regulatory remedies. UK, Sweden and Netherlands abstain from agreement. Amendment 138 rejected. No explanation available.


 The European Council has confirmed that it wants to drop the controversial amendment 138 from theTelecoms Package. In doing so, it sets itself clearly in the opposite corner to both the Commission and the Parliament and it puts a stumbling block in the way of the negotiations which will now take place between the three institutions. It also positions the Council as unfriendly to citizens rights, in spite of its somewhat hypocritical attempts to rename the Universal Services Directive as 'the citizen's rights directive'. 

 Amendment 138 states that no restrictions may be put on users rights to access content on the Internet without a court order. In one sense, it re-affirms the existing legal situation. In another sense, it puts a barrier in the way of the French government and its plans for graduated response / 3-strikes (the Creation and Internet law).  

The French Industry Minister, Luc Chatel, was unable to

give an explanation for why Amendment 138 was dropped, even though he was asked three times in the press conference that followed the Council meeting - by La Tribune, Europolitique and Publico (Spain). At the third request, he said (transcription by me of the simultaneous translation to English) 'a majority of the member states were wishing us to concentrate on the containers and not on the content'.  He gave no indication as to what pressure was put on Denmark and Austria to drop their objections. 

M. Chatel was  asked  about Amendment 166 to the Universal Services directive (Article 32a). The questioner linked it to filtering and M.Chatel replied (transcription by me of simultaneous translation) 'filtering. There is nothing on filtering'.  As I have argued in my paper 'Packaging up copyright enforcement' , the regulations on filtering are addressed by  language  in the Telecoms Package  text on traffic shaping or traffic management - M.Chatel should really check carefully!

 M. Chatel was also unable to explain when asked, what the other points in the political agreement were. It was  not clear either  from the video of the 'public debate'.  However, based on the main points which were raised in the debate by the Ministers from the member states, I would suggest that the agreement covers the following areas: 

1. Functional separation, which relates to a restructuring of the old, incumbent telecomms operators, so that they separate the part of the business which deals with customers from the part which deals with other operators.  This is about improving access measures for telcos and ISPs. 

2. Infrastructure investment. Similar to the first point, this is about who will make the investment necessary for the next generation of networks, and how it should be regulated.

3.  A pan-European regulatory body. In the Council's compromise proposals, this is called the GERT. The Commission wants it to be set up with a clear legal remit to intervene where necessary. The Council wants national regulators to have the greatest power, and weakens the Commission's proposal. 

4. Legal remedies  - this is about powers for regulators in cases where they need to intervene, to deal with competition issues. Again, the division of opinion is between the Commission - which wants more powers - and the Council, which wants to limit the Commission's powers. 

The abstentions by the UK and Sweden were almost certainly to do with the functional separation and infrastructure investment issues, where they are at odds with the Germans and the Spanish.  

The content and copyright enforcement issues which occupied so much of the Parliament's efforts were not discussed, except for the references I've reported in my previous article.  This was pretty much to be expected from discussions I've had with lobbyists. However, what concerns me is that by deliberately NOT  dealing with it, the Council may have left a quietly ticking time-bomb. Article 33(2a) of the Universal Services directive - the anchor amendment for Olivennes proposals - is still in there, albeit weakened from its original form. Traffic management policies can be interpreted as filtering. We need to understand what is and isn't possible. Food for thought...

 I have asked the Council   for a statement. I've been told it  is being prepared for release this evening.

  For the full story of the Telecoms Package, see my book The Copyright Enforcement Enigma: Internet politics and the Telecoms Package

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The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

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