EU policymakers clinch toward agreement on broadband law

Ahead of the third political session of inter-institutional negotiations on the EU regulation to speed up 5G and fibre rollout, co-legislators are dedicated to finding compromises on the most political topics: the tacit approval principle and intra-EU communication fees.

The Gigabit Infrastructure Act is a legislative proposal to facilitate the deployment of high-capacity networks, currently at the last stage of the legislative process, with the EU Commission, Council and Parliament meeting in so-called trilogue formats.

“The first and most important element [of the Gigabit Infrastructure Act] is to cut red tape,” told European Parliament’s rapporteur Alin Mituța at the European 5G conference on Tuesday (30 January).

Although co-legislators agree on the objective enshrined in the EU’s Digital Decade targets, they disagree on how to achieve them. Still, they are expected to bridge their differences at the next and possibly last trilogue on Monday (5 February).

Tacit approval

One of the main points of contention regards the ‘tacit approval’ principle that the European Commission introduced in the original proposal to significantly speed up telecom infrastructure deployments.

Tacit approval means that if an administrative authority does not respond to a request for permit granting in due time, it is treated as an implicit authorisation. However, several EU countries have opposed the provision as it would be problematic for their administrations.

By contrast, MEPs push to keep the principle to ensure fast network rollouts. The current stage of negotiations leans towards the Council’s position, suggesting referring to the tacit approval principle, with the carve-outs that EU countries can derogate from this principle.

The idea is that member states could impose on administrative authorities failing to deliver a response in due time to compensate the applicant or give it the right to file a complaint to the courts.

In both cases, EU countries should allow applicants to trigger a conciliation hearing. This is a significant concession for EU countries, considering that the fear of punishment will incentivise administrative authorities to comply with the law.

However, parliamentarians consider this approach would consolidate legislative telecom fragmentation and contradict the very aim of the regulation. Yet MEPs might accept it in exchange for abolishing intra-EU communications fees.

Intra-EU communication prices

Intra-EU communications ‘surcharges’ are charges EU citizens incur when calling or texting someone inside the EU but outside of their home country. While roaming charges have been abolished, allowing EU citizens travelling abroad to use their mobile phones within the EU as if at home, charges are still incurred for communications transiting to another EU country.

Prices are capped, yet these caps expire in May. Members of the European Parliament used this opportunity to suggest caps abolition. The Council criticised this decision, claiming it lacked the evidence, as an impact assessment did not support it.

Yet, at the European 5G conference, Mituța quoted an opinion conducted by the Body of European Regulators for Electronic Communications (BEREC), which he intends to use as legal grounds.

Euractiv understands that negotiators will use this opinion to support their respective arguments.

The bottom line is that there are still grey areas around some confidential data, like transit costs of intra-EU communications. Additionally, the revenue loss -some €2 billion/year- of the measure will also be a point of discussion in a context where the European Commission repeats that there is a €174 billion investment gap to reach the Digital Decade targets.

Still, the final text should include provisions on intra-EU communications, including a review clause and a limit in time and conditions to prevent abuses. A glide path should also be incorporated.

Entry into force

While EU countries would like the regulation to kick in in 24 months, MEPs believe it should be six months.

The Council is ready to agree on differentiated entry into forces for multiple articles. Yet, the Parliament is weary that should some articles enter into force by mid-2026, the regulation would miss its 2030 targets.

Land aggregators

As well as intra-EU communications, MEPs added another ex-ante provision. The alleged aim is to address speculative behaviours from land aggregators.

These intermediary companies combine scattered pieces of land by buying or renting it from landowners to rent it back to telecom infrastructure companies while providing additional services.

The Parliament wants this measure to protect farmers and tower companies in rural areas against land aggregators accused of speculative behaviours.

The Council has treated this provision sceptically, considering that the European Commission still needs to provide an impact assessment for this measure and that less than half of the member states reported having land aggregators operating within their national markets.

This provision could be used as a bargaining chip to reach a better compromise on tacit approval or intra-EU communications. Input from the European Commission will be pivotal in this matter.

This provision may be postponed for a later decision based on a thorough analysis of the situation by competent authorities.

[Edited by Luca Bertuzzi]

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