More than two years after the expiry of the deadline for the transposition of Directive (EU) 2018/1972 establishing the European Electronic Communications Code ("Electronic Communications Code"), Romania has adopted for this purpose the Law no. 198/2022 amending certain regulatory acts in the electronic communications sector and for the establishment of measures meant to facilitate the development of electronic communications networks ("Transposition Law").
However, the legislative process of the Transposition Law has proven to be quite tumultuous in practice. After the fulfilment of the proceedings before the Constitutional Court of Romania, the re-examination by the Romanian Parliament further to certain provisions being declared unconstitutional and in the context of the European Commission’s notification of the Court of Justice of the European Union regarding Romania's failure to meet its obligation to transpose the Electronic Communications Code’s provisions, the Transposition Law was finally published in the Official Gazette on 7 July 2022.
1. Harmonization of the regulation in terms of concepts and terminology
In light of the reform of the European framework achieved through the Electronic Communications Code, the Transposition Law represents a far-reaching amendment and supplementation of the legislation in the electronic communications sector, the most numerous and important amendments being brought to Government Emergency Ordinance no. 111/2011 on electronic communications (“GEO 111/2011”). The main new issues introduced under the Transposition Law include
provisions regarding the installation and use of high-capacity networks, sustainable competition, and the provision of extensive protection for end-users. It is now expressly stated that the regulation will be without prejudice to the actions intended to ensure public order, national security and defense, audiovisual rules or regulations concerning the availability of radio equipment on the market.
2. Obligations imposed on providers of electronic hosting services with IP resources
Without having a correspondent in the provisions of the Electronic Communications Code, the most controversial provisions of the Transposition Law, which were also the subject of the unconstitutionality notifications, were represented by the obligations imposed on a new category of entities, namely the providers of electronic hosting services with IP resources.
The Transposition Law defines these entities as persons who provide in Romania services for the storage, distribution of content and access to such content on owned or rented servers, by managing a set of IP addresses on the Internet. Such providers must support law enforcement bodies and bodies with responsibilities in the national security, within the limits of their competences, to implement technical supervision methods or authorization acts ordered according to the provisions of the Criminal Procedure Code and of Law no. 51/1991 on national security, by:
(i) allowing the legal interception of communications and bearing the related costs during the validity of and under the conditions set forth in authorizations;
(ii) offering, at the request of the authorized bodies, access to the decrypted content of communications transited in their own networks, which are subject to the authorizations in question;
(iii) allowing access to their own computer systems, in order to copy or extract solely the data that is the subject of authorizations.
Furthermore, the obligations described in poinits (i) and (ii) above is to also be applied accordigly to all providers of electronic communications networks or services.
In addition, the providers of electronic hosting services with IP resources must, within 60 days after starting the provision of services, send information in this respect to the National Authority for Administration and Regulation in Communications ("ANCOM") containing at least: (i) the provider’s identification data, (ii) the provider’s contact details and (iii) the type of electronic hosting service provided.
Although this definition in itself does not provide sufficient information as regards the range of entities that fall into this category of providers, ANCOM shall, according to the Transposition Law, publish on its own website the types of electronic hosting services for which the providers of electronic hosting services with IP resources have the obligations detailed above.
3. Broadening the scope of electronic communications services
First of all, the Transposition Law significantly changes the notion of electronic communications services. Thus, with the entry into force of the Transposition Law, three types of sub-services will be introduced in the area of electronic communications services, namely (i) internet access services, (ii) interpersonal communications services and (iii) services consisting wholly or mainly of the transmission of signals over electronic communications networks.
It is thus possible to note the broad concept covering electronic communications services, and among the three sub-categories, interpersonal communications services stand out, such being defined with a newness character under the Transposition Law, as those services provided as a rule against remuneration, which (i) enable direct interpersonal and interactive exchange of information via electronic communications networks (ii) between a finite number of persons, (iii) whereby the persons initiating or participating in the communication determine its recipient(s), and (iv) do not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service.
Interpersonal communications services are further sub-classified, depending on whether public numbering resources are used, into (i) number-based services and (ii) number-independent services. While number-independent services will thus also fall under the notion of interpersonal communications services once the Transposition Law enters into force, with numerous consequences in practice, they will be subject to a more permissive regulatory regime, benefiting from certain exemptions from the regulatory regime imposed by GEO 111/2011, as amended under the Transposition Law, while at the same time being subject to other regulatory acts, such as the Government Emergency Ordinance No 141/2021 on certain aspects regarding contracts for the provision of digital content and digital services.
4. Amendments to the general authorization regime
The general authorization regime is defined in GEO 111/2011 as the legal framework that establishes specific rights and obligations in the electronic communications sector regarding the provision of electronic communications networks or services, applicable to all or certain categories of entities that intend to provide electronic communications networks or services in Romania. The Transposition Law, in line with the Electronic Communications Code, introduces certain amendments to this legal framework which must be observed by all providers of electronic communications networks or services.
Thus, the Transposition Law maintains the procedural requirements for the general authorization of electronic communications networks and services, procedure that limits itself to a notification to this effect sent to ANCOM, and which are not subject to an explicit decision or another type of administrative act. The submission of this notification, whose content is established by decision of ANCOM, to the extent that sufficient information is communicated for the identification of the entity that had prepared it, shall enable the latter to provide the types of public electronic communications networks and publicly available electronic communications services indicated in the notification, with the corresponding rights and obligations laid down in the general authorization. Thus, the acquisition of these rights is no longer conditional on the submission of a complete notification, which does not, however, exonerate providers from the obligation to supply the information requested in the notification in a complete and accurate manner.
As the number-independent interpersonal communications services do not benefit from the use of public numbering resources, the Transposition Law excludes the persons intending to provide these types of services from the obligation to notify ANCOM.
In addition, the Transposition Law introduces the conditions to be attached to general authorizations, i.e., general conditions, specific conditions for the provision of electronic communications networks and specific conditions for the provision of electronic communications services with the exception of number-independent interpersonal communications services.
5. New regulations applicable to scarce resources
The Transposition Law asserts the principle according to which the administration and management of scarce resources shall be based on the principles of objectivity, transparency, non-discrimination and proportionality, thus aiming to encourage competition.
In line with these principles, the Transposition Law seeks to facilitate the use of the scarce radio spectrum resources by means of a special general authorization regime for the use of certain radio frequency bands, with a number of criteria being established based on which ANCOM may decide on the most appropriate regime for this purpose, including the specific characteristics of the band, the need to ensure protection against harmful interference, general interest objectives, etc.
In addition, the Transposition Law introduces the possibility of radio spectrum sharing, which is allowed under certain conditions and only when it facilitates an efficient spectrum use, competition and innovation.
With regard to numbering resources, the Transposition Law introduces the possibility of extraterritorial use of certain numbering resources from the National Numbering Plan made available by ANCOM for the provision of electronic communications services, other than interpersonal communications services, throughout the territory of the European Union. In connection with such uses of numbering resources in other Member States, the Transposition Law lays down the obligation to comply with the National Numbering Plan and the conditions for the use of those numbering resources applicable in Romania, while ANCOM shall establish, by decision, the specific conditions attached to the right of use of such numbering resources with extraterritorial use, in order to ensure consumer protection and the compliant use of numbering resources in the Member States where they are used.
GEO 111/2011 has also been supplemented in order to introduce the possibility of using, in Romania, non-geographic numbering resources for the provision of electronic communications services, other than interpersonal communications services, for which the right of use is granted by other authorities in the Member States of the European Union. In this case too, holders of rights of extraterritorial use of non-geographic numbering resources will be obliged to comply with the national legal rules regarding the conditions for the use of numbering resources and consumer protection.
Another addition to the legal framework for the management of numbering resources allows ANCOM to establish certain such resources for which the right of use is granted to persons that do not provide public electronic communications networks or publicly available electronic communications services.
6. Ensuring portability and switching between providers of electronic communications services
The Transposition Law also brings some changes to the portability service offered to end-users by extending their rights. For example, under certain conditions, the law allows end-users to keep their telephone number assigned under a contract that was terminated and prohibits the charging of fees for number portability. The Transposition Law also regulates the procedure to be followed in the event of a failed porting, in which case the provider whose services are terminated will be obliged to reactivate the end-user's number and provide the related services under the same conditions as before the porting, until the new provider activates the services.
The portability service has also been regulated so as to allow for the switching to another internet access provider. A general obligation for ensuring such a switching is that the provider whose Internet access service is requested shall ensure that the service is activated in the shortest time possible, within the timeframe agreed with the end-user, and the provider whose Internet access service is terminated shall also have to continue providing the service, under the same conditions, until the new provider activates the service.
7. Security of electronic communications networks and services
The Transposition Law maintains the obligation of providers of public electronic communications networks or publicly available electronic communications services to take all necessary technical and organizational measures to adequately manage the risks posed to the security of electronic communications networks and electronic communications services, i.e., to notify ANCOM in the shortest time possible of any security incident that has a significant impact on networks and services.
Unlike the previous regulation, parameters have been introduced that must be used to determine the significance of the impact of such a security incident. These include aspects such as the number of users affected, the duration of the security incident or the geographical extent of the area affected by the incident.
The Transposition Law also expressly introduces an obligation for providers of public electronic communications networks or publicly available electronic communications services to inform, free of charge, potential users affected by a specific and significant security threat, about any safeguards or corrective measures that can be taken by users to protect the security of their communications (e.g., the use of certain types of software or encryption technologies).
Also for ensuring the security of electronic communications, in the event that a security incident occurs or even if a specific and significant security threat or vulnerability is identified, the Transposition Law introduces in GEO 111/2011 ANCOM’s possibility to establish, in the form of mandatory instructions, the responsibility of providers of public electronic communications networks or publicly available electronic communications services to take the necessary measures to remedy the security incident or prevent its occurrence.
8. End-users’ rights
Regarding the range of providers to whom end-users’ protection obligations apply, the Transposition Law expressly provides that transmission services used for the provision of services between devices are exempted from certain such obligations. Also, apart from the non-discrimination obligation, the Transposition Law excludes micro-enterprises providing number-independent interpersonal communications services from the application of the provisions protecting end-users, unless they also provide other publicly available communications services.
The range of end-users covers, according to the Transposition Law, consumers, but also micro-enterprises, small enterprises and non-profit organizations, which, with certain exceptions, shall benefit from the same rights insofar as they have not explicitly agreed to waive all or part of their application.
In line with the Electronic Communications Code, the Transposition Law also introduces certain amendments to GEO 111/2011 insofar as end-users' rights are concerned. These include, for example, clarifying that providers of public electronic communications networks or publicly available electronic communications services may not apply different restrictions or conditions to end-users with regard to access or use on grounds of nationality, state of residence or place of establishment.
An important emphasis is also placed on ensuring transparency and information to end-users on certain important details of the services offered, presented in the Transposition Law (i.e., contact details of the provider, description of services offered, with specific details according to each type of service offered, dispute settlement mechanisms, etc.). A significant novelty in this area is the providers’ obligation to deliver to consumers a contract summary summarizing the main pre-contractual information, while making the enactment of contracts conditional upon users' receipt of this contract summary and on their consent to its content.
Moreover, the rights traditionally offered to consumers concerning, inter alia, pre-contractual and contractual information or the maximum term of contracts, are expressly regulated in the Transposition Law for the benefit of micro and small enterprises, and non-profit organizations, given their weaker negotiation position in relation to providers.
Along the same line, in order to offer end-users the opportunity to assess and compare the various internet access services and publicly available number-based or number-independent interpersonal communications services, where appropriate, ANCOM will provide them with at least one independent comparison tool with regard to (i) the periodic and consumption-based unit tariffs of the services provided and (ii) the service’s quality performance. The Transposition Law expressly requires that such comparison tools should meet certain conditions that will also be certified by ANCOM on the basis of audits performed by independent bodies.
The Transposition Law also gives ANCOM numerous prerogatives in connection with market transparency, such as the possibility to specify and supplement the categories of information to be made available to the public or to impose on providers of internet access services and publicly available interpersonal communications services the obligation to publish easily accessible information on the quality of services offered, as well as the measures taken to ensure access under equivalent conditions for disabled end-users, to the extent that such providers exercise control over at least certain elements of the network or have an agreement regarding the services quality.
9. New aspects related to the universal service
According to the Transposition Law, universal service is a minimum set of functional broadband internet access and voice communications services, which must be provided to all end-users at an affordable price, at a specified level of quality, throughout the national territory, including to the related fixed-line connection. Thus, subscriber information services and subscriber directories and access to public pay telephones have been excluded from the scope of the universal service.
As a novelty to the former legislative framework, ANCOM's prerogative to monitor the evolution and level of retail tariffs for services falling within the scope of the universal service by reference to national prices and consumer revenues has been clarified.
In particular, if it is established that these tariffs are not affordable for low-income consumers or consumers with special needs, ANCOM will be able to oblige Internet access and voice communication services providers to offer different tariff options from those charged under normal commercial conditions. In those situations where imposing such obligations on all providers of Internet access and voice communication services were to represent an excessive administrative or financial burden on the State or on such providers, ANCOM will have the possibility to designate one or certain providers to act as such universal service providers, so as to ensure nonetheless the affordability of these services.
Furthermore, if ANCOM establishes that the fixed location availability of services that are part of the universal service cannot be ensured under normal commercial circumstances or by means of other public policy instruments, ANCOM will have the possibility under the Transposition Law to impose appropriate universal service obligations so as to ensure that all end-users have access to these services in each relevant Romanian territory.
Last but not least, regarding the mechanisms for financing universal service obligations, the Transposition Law, while preserving the existing modalities for determining the net cost of universal service, provides for the possible setting of a mechanism to compensate this net cost, should ANCOM consider that bearing such cost constitutes an unfair burden on universal service providers. This compensation mechanism will be established by Government Decision and the amounts necessary for this purpose will be covered from ANCOM's existing universal service fund and/or European funds, if such a financing source is available and feasible. If the compensation needs exceed these financing sources, additional financing arrangements have been provided, such as net cost sharing between providers or from the state budget through the budget of the Ministry of Culture.
10. Promotion of competition in the markets for products and services in the electronic communications sector, inter alia, through further measures to ensure access and interconnection.
In relation to access and interconnection related aspects, the Transposition Law maintains the concept according to which the necessary framework should be provided in order to encourage and, where appropriate, ensure adequate access and interconnection and interoperability of services, with ANCOM exercising its powers in a way that promotes economic efficiency, sustainable competition, efficient investment and innovation and ensures that the benefits to end-users are maximized. However, an additional obligation has been added, i.e., ANCOM’s obligation to publish on its website the applicable procedures for access and interconnection, so as to ensure that SMEs and operators providing electronic communications services or networks in a restricted geographical area also benefit from these.
Among the measures that may be adopted by ANCOM to ensure the necessary framework set out above is the authority’s possibility, in justified situations and under certain conditions, to impose obligations on providers of number-independent interpersonal communications services whose services are provided over a wide geographical area and are used by a significant number of end-users to ensure interoperability of services.
The Transposition Law also gives ANCOM the possibility to impose various obligations to ensure network access and interoperability, such as (i) the obligation to grant access, at the reasonable request of a provider of public electronic communications networks and under certain conditions, to wiring, cables and associated facilities inside buildings or up to the first concentration or distribution point, where this point is located outside the building, or (ii) under certain specific conditions, the obligation of providers of electronic communications networks to share passive or even active network elements or the obligation to conclude localized roaming access agreements.
In particular, the Transposition Law expressly provides that such obligations and conditions imposed for the provision of access and interconnection must be objective, transparent, proportionate and non-discriminatory and imposed only after specific procedures have been followed (public consultation, notification of the European Commission, etc.).
11. Disputes Resolution
Although the Transposition Law, in line with the Electronic Communications Code, does not bring significant amendments to the current regulatory framework for dispute resolution, there are certain amendments worth mentioning, namely:
- The cases that may be referred to ANCOM for resolution have been extended, thus the instance where a dispute arises between providers of electronic communications networks or electronic communications services has been supplemented with those situations where disputes arise between such providers and providers requesting or benefiting from access or interconnection or providers of associated facilities in relation to the obligations set out in GEO 111/2011;
- In the case of disputes between providers, a novelty is the situation where ANCOM is to be notified for the settlement of a dispute in connection with the obligation to share the passive infrastructure used for the provision of wireless electronic communications services or the obligation to conclude localized roaming access agreements. In such cases, ANCOM may order the beneficiary of such obligations to share the radio spectrum with the provider who has such obligations;
- At procedural level, the Transposition Law also deals with the situation where a claim with the same subject matter, the same case of action and between the same parties is brought before both ANCOM and a court, in which case ANCOM may either (i) dismiss the notification, if the claim was brought before the court prior to or at the same time as the notification to ANCOM, or (ii) to suspend the dispute resolution procedure, if the claim was brought before the court after the notification of ANCOM.
- Given the repeal of the existing provisions under GEO 111/2011 regarding end-users’ possibility to approach ANCOM for the settlement of disputes arising from the application of this emergency ordinance, such disputes are to be settled according to the requirements of the European Communications Code by an alternative dispute resolution body. Thus, the provisions of Government Ordinance No. 38/2015 on alternative resolution of disputes between consumers and traders become applicable, and the alternative dispute resolution body within the National Authority for Consumer Protection becomes the competent authority.
12. Provision of information
Regarding the obligation to provide various information to ANCOM at its request, the Transposition Law also brings two major amendments, namely (i) it broadens the scope of subjects who must provide information - in which case, in addition to providers of electronic communications networks and electronic communications services, associated facilities or associated services, also included are the providers of information society services, owners' associations and central and local public authorities and institutions, and (ii) it broadens the scope of information categories that may be requested by ANCOM.
13. Emergency communications
The transposition of the Communications Code provisions in the field of emergency communications also entailed amendments brought to Government Emergency Ordinance no. 34/2008 on the organization and functioning of the Single National Emergency Call System.
The amendments mainly cover the following aspects: (i) the introduction into legislation of new notions used in the Electronic Communications Code, such as "emergency communication", "abusive communication", "unintentional communication" or "associated information", (ii) the introduction of the total conversation service into the scope of electronic communications services allowing access to the 112 emergency service to be used by people with disabilities/hearing and/or speech impairments, (iii) reassertion of the fact that calls and other emergency communications made by end-users are free of charge and the introduction of the 112 emergency callback service for these users.
In particular, we should mention the updating, in line with the Electronic Communications Code, of the notions of "network-based location information" and "terminal-based location information", by detailing the steps to be covered to obtain these two types of location information.
Some of the emergency communications obligations falling on providers of publicly available number-based communications services have also been adjusted. Thus, the following obligations have been introduced (i) to ensure the reception and routing of emergency calls to the most appropriate PSAP, including where end-users are roaming on Romanian territory, (ii) to ensure the transmission to the SNUAU’s administrator of a unique identifier for each call and/or emergency communication under the conditions established by ANCOM decision, so that during the processing of emergency communications the unique identification and the unique association with the location information is also achieved, and (iii) to modify the obligation to transmit the database to SNUAU’s administrator and to update it.
14. Supervision, control and sanctions
The Transposition Law also brings some relevant amendments to the sanctioning of operators for non-fulfilment of their obligations.
Thus, by way of exception, it will be ANPC’s responsibility and not ANCOM’s duty to assess compliance with certain provisions of GEO 111/2011, as amended under the Transposition Law, relating to the fulfilment of obligations arising from the supply to end-users of equipment enabling the reception of digital television and from ensuring the characteristics that must be met by digital TV sets with a diagonal greater than 30 cm and car radio equipment integrated into new cars, respectively.
In view of the situations encountered by ANCOM in practice, the Transposition Law specifically regulates the prerogatives of ANCOM's inspection staff to carry out inspections without disclosing their position as inspectors as soon as the inspection activities begin. Thus, the following specific situations have been regulated in which ANCOM's inspection staff may carry out inspections without disclosing their position as inspectors, namely the assessment of compliance, among others, with pre-contractual information obligations imposed on providers of publicly-available electronic communications services when entering into contracts (regardless of how the contract is concluded), as well as with certain obligations relating to transparency, the provision of documents and assurance of the portability of telephone numbers and of transfer from one Internet access service provider to another. In all these cases, however, ANCOM's inspection staff must declare their position at the latest upon the drawing up of the inspection documents, so that the identification data of the agents can be found in these documents, thus ensuring their validity.
In addition to the above, in line with some of the new obligations introduced under the Transposition Law, new misdemeanors for non-compliance have also been set forth.
15. Other amendments
In addition to the amendments brought to GEO 111/2011, the Transposition Law also made changes to the content of other regulatory acts, including Law no. 159/2016 on the regime of electronic communications networks physical infrastructure, Emergency Ordinance no. 34/2014 on consumer rights under contracts concluded with professionals and Law no. 506/2004 on the processing of personal data and the protection of privacy in the electronic communications sector.
By Monica Iancu, Partner, Andra Gheorghe, Managing Associate, and Madalina Arcana, Associate, Bondoc si Asociatii