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Parliamentary questions
9 March 2010
Answer given by Ms Kroes on behalf of the Commission

The Honourable Member poses two questions relating to the blocking of some Internet services such as voice-over-IP (VoIP) by mobile operators as well as video services which are only accessible in their country of origin and not throughout the European Union.

The Commission would first wish to clarify that, under the newly-amended telecoms directives(1), traffic management by ISPs, which is objectively motivated by technical or public policy justifications, such as the need to avoid filling or overfilling a network link (depending on the different types of services offered by operators), is not prohibited. However, users must, under Articles 20 and 21 of the Universal Service Directive(2), be fully informed of the ISP's policies in this regard; national regulatory authorities must also be empowered under Article 22(3) of the Universal Service Directive to set minimum quality of service requirements on undertakings in order to prevent degradation of service and the hindering or slowing down of traffic over networks. There is, furthermore, under Article 8(4)(g) of the framework Directive 2002/21/EC an obligation on national regulatory authorities to promote the ability of end-users to access and distribute information or run applications and services of their choice.

The Commission has stated in its declaration(3) on net neutrality that it attaches high importance to preserving the open and neutral character of the Internet, taking account of the will of the co-legislators to enshrine net neutrality as a policy objective and regulatory principle to be promoted by national regulatory authorities. The Commission has also expressed its concern with regard to the possibility of discrimination against VoIP services by mobile operators in Member States. The Commission believes that VoIP is a technological innovation with the potential to change radically the existing structure of telecoms markets, as well as to enhance competition and to make telephony services more cost-efficient, more flexible and more consumer-friendly. The Commission notes in particular in this context that the second EU Roaming Regulation(4) stresses that there should be no obstacles to the emergence of applications or technologies which can be a substitute for, or alternative to, roaming services, such as Wi-Fi, VoIP and Instant Messaging services.

The Commission recalls that in addition to the tools available to national telecoms regulators, Articles 101 and 102 TFEU set out the European Union’s competition rules on the basis of which the Commission and national competition authorities may address and sanction anti-competitive behaviour.

The Commission will continue to monitor the developments and will report on the situation to the European Parliament and Council by the end of 2010.

With regard to the second question, the Commission is aware of the fact that many television channels are accessible only in their country of origin, although technical conditions would allow such distribution in other Member States.

This is not satisfactory as it contradicts a major objective of the European Union's audiovisual media policy, which is to make creative content available across borders. The Commission’s policy objective — as emphasised in the ‘Digital Agenda for Europe’(5) — is to foster the competitiveness of the European audiovisual and online information services industry and to realise the digital internal market. This means that digital offerings must become much more available across borders. However, there may be various underlying reasons for restricting access to these services to residents of a Member State. For instance, territorial restrictions on the distribution of television channels are often the result of the negotiations between rights holders and service providers and consequently their free commercial decisions. Service providers often only acquire the broadcasting rights for specific territories, which restricts the distribution of services. The European Union has no instrument to force operators to distribute their services Europe-wide or in a given area. That said, under European competition rules, certain autonomous decisions by dominant companies could be addressed under Article 102 TFEU which prohibits, as incompatible with the common market, any abuse of a dominant position by one or more undertakings, insofar as it may affect trade between Member States.

The second report on the implementation of Directive 98/84/EC on the legal protection of conditional access services adopted on 30 September 2008(6) identified the lack of cross-border access to some audiovisual services as an issue to be investigated by the Commission. Notably, as regards pay-TV services, numerous EU citizens feel forced to circumvent territorial restrictions by taking subscriptions through letter-box addresses in order to be able to access the service while living in another Member State.

The Commission strongly promotes and supports the development of business models for the cross-border distribution of creative content. This is a major goal of the Creative Content initiative, which is one of the cornerstones of the Commission's Digital Agenda, and a major topic of the reflection document ‘Creative Content in a European Digital Single Market’ that was published on 22 October 2009 by the Directorates-General Information Society and Media and Internal Market(7). Another example that shows the Commission generally favours solutions which allow consumers to buy creative content across borders, irrespective of their place of residence is the recent Online Commerce Roundtable(8).

Moreover, since 2007 the European Union has also funded video-on-demand-projects with innovative solutions for cross-border licensing in the framework of the MEDIA programme.

Beyond that, the Commission has mandated a study on the cross-border licensing of audiovisual works which will analyse the potential of relevant business models and develop appropriate proposals(9).

(1)Directive 2009/140/EC of the Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services, OJ L 337, 18.12.2009, and Directive 2009/136/EC of the Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws, OJ L 337, 18.12.2009.
(2)Directive 2002/22/EC of the Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), OJ L 108, 24.4.2002.
(3)OJ L 337, 18.12.2009.
(4)Regulation (EC) No 544/2009 of the Parliament and of the Council of 18 June 2009 amending Regulation (EC) No 717/2007 on roaming on public mobile telephone networks within the Community and Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services, OJ L 167, 29.6.2009.
(6)COM(2008)593 final.

Laatst bijgewerkt op: 18 maart 2010Juridische mededeling