Since the announcement on 6 June that the Council and European Parliament had reached agreement on the draft Directive establishing the Electronic Communications Code (the “Code”), the communications and competition communities have been on tenterhooks to see what the final version of the text contains.

The draft Code has been in the pipeline for almost two years and is part of the Commission’s Digital Single Market Policy. It is designed to set EU-wide common rules and objectives on how the telecoms industry should be regulated.  The Commission’s aim has been to update the rules, taking account of technological developments, and to create the regulatory framework to enable the roll-out of 5G and new generation technologies in the context of the EU’s ambitious 2025 connectivity targets.

The audience from around the globe at the IBA’s 29th Annual Communications and Competition Conference in Milan this week was – while waiting with baited breath for the final text – cautiously optimistic.

In addition to provisions on the availability and predictability of access to the spectrum licences required for the deployment of 5G networks, the Code also focuses on creating a predictable investment environment, including through the provision of “regulatory holidays” where certain conditions are met.

Discussion at the conference focused on investment incentives, co-investment models and access to passive infrastructure. There was a consensus from regulators and industry alike that the Code is a welcome codification and revision – creating a European environment in which tech can flourish.

A Commission Official also discussed the regulatory challenges posed by emerging tech markets. In particular – how can and should regulation apply to companies which do not (yet) have significant market power (“SMP”) in the context of the recently updated SMP Guidelines and the related difficult task of assessing and finding joint dominance (at all and especially in dynamic markets).

However, the atmosphere of optimism extended to the ability of the existing competition rules to deal with new tech and the digital economy. First – there are lessons to be drawn from experience in other industries where innovation is also important (for example pharma and agri-chemicals markets).  Second – there was a clear message that “what’s illegal offline is likely to be illegal online”.  This applies in particular to collusion through algorithms and competition issues which blockchain may give rise to.

So – while there will undoubtedly be difficult legal and regulatory questions ahead for this sector, there is also lots to look forward to.

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