European Parliament and Council: pistols at dawn?

The Bois de la Cambre outside of Brussels was once a regular venue for “pistols at dawn”, and 30 December may yet again be a fateful date.

According to a Press Release from the European Parliament, the Parliament and Council begin conciliation proceedings on the telecoms package on 4 November, which must agree a joint text by 30 December.  If they do not agree a text, or if the text is not passed without amendment by both the Parliament (on simple majority of votes cast) and the Council (by qualified majority), then the telecoms package falls and the whole process must be started with a new proposal from the Commission.

There is one open issue: the question of internet access.  This involves amendments to Article 8 of the Framework Directive 2002/21/EC (as set out in the Parliament’s second reading position paper – see relevant documents here).  In particular, the Council does not accept the Parliament amendments:

in paragraph 4 [of Article 8], points (g) and (h) shall be added:

[4.  The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia:]

(g)  promoting the ability of end-users to access and distribute information or run applications and services of their choice;

(h)  applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public scrutiny is threatened in which case the ruling may be subsequent.

The Council have yet, as far as we are aware, to make known to the Parliament their objections to this amendment.  It is suspected that the “prior ruling by the judicial authorities” phrase is the stumbling block, but as this has now been introduced (albeit with some controversy over the method) in France’s HADOPI II, the only member state so far with a “three strikes” law, it is a surprise that it continues to hold up the whole telecoms package.

Lights out for a bit of electrical history

Incandenscent Light Bulb

Incandescent Light Bulb

1 September 2009 marked the beginning of the end for the incandescent light bulb in Europe, curtesy of the Ecodesign for Non-Directional Household Lamps Regulation, after 130 years.

The Regulation is not for the faint-hearted, being a heavily technical document.  So much so that a handy “translation” has been prepared for MPs by a House of Commons Library Note.

From 1 September 2009, it should not be possible to obtain an 80W or higher wattage incandescent light bulb in the UK.

What makes this Regulation slightly more interesting from a legal point of view is that it was made by the Commission under an enabling power included in Directive 2005/32/EC.  Under the Directive the European Parliament and Council have handed over power to the Commission to set ecodesign requirements for a wide range of energy-using products by way of a Commission regulation.  A Commission regulation has direct effect on member states, ie no national legislation is required for the regulation to be effective and enforceable.

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.