Our bags are packed; we're ready to go…

We reported over a week ago on the possibility of regulatory holidays sneaking into the Telecoms Package (We’re all going on a [regulatory] holiday…).   Last week (6 May 2009), the European Parliament did its best to get the last word on the Telecoms Package – see the outcome of the second reading. This has given us the first look at the Common Position adopted by the Council.

Don’t try doing a word/phrase search for “regulatory holiday”; nothing as blatant as that has been inserted into the Common Position.  However, have a look at the draft of the amended Article 8(5)(d) of the Framework Directive 2002/21/EC that is proposed:

5.  The national regulatory authorities shall …. apply objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia:

d) promoting efficient investment and innovation in new and enhanced infrastructures, including by ensuring that any access obligation takes appropriate account of the risk incurred by the investing undertakings and by permitting various cooperative arrangements between investors and parties seeking access to diversify the risk of investment, whilst ensuring that competition in the market and the principle of non-discrimination are preserved;

[bold italic text inserted by the Council.]

Anyone care to explain?  Is this the back door to regulatory holidays? It’s a typical example of European late night compromise drafting, so that the article appears to mean whatever you want it to mean (i.e. incumbents will argue that a degree of regulatory holiday is necessary to “diversify the risk of investment” whilst new market entrants will say that access to new non-replicable infrastructure is essential for “ensuring that competition in the market” are preserved).

The Telecoms Package has not been vetoed by the European Parliament, as reported by some commentators.  The Common Position, as amended by the European Parliament, now goes back to the Commission and the Council.  If subsequent trilogues do not lead to an agreed text, the amended Common Position will go to the Conciliation Committee.

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