Cross-border portability of online content services in the internal market: Initial Appraisal of a European Commission Impact Assessment

17-03-2016

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment accompanying the above proposal, adopted on 9 December 2015. This proposal is one of the first legislative initiatives proposed under the umbrella of the Digital Single Market (DSM) Strategy. The DSM Strategy is in itself one of the ten political priorities of the Juncker Commission. The portability proposal aims to contribute to the key objectives of the DSM allowing for better online access to digital goods and services across the EU Member States when travelling. Further legislative proposals in the field of copyright are expected in 2016. Overall, the impression is that this IA has made a reasonable attempt to analyse the current situation, substantiating the need for EU action to solve the issue. The IA draws upon a wide range of research from different sources and disciplines, both external and internal, and the stakeholder consultation appears to be broad. However, the objective of the present initiative (to ensure cross-border portability) is formulated in such a way that it can in fact only conceivably be achieved by a legislative solution that prescribes portability on a mandatory basis (meaning Option 3, which is the Commission's preferred option). This could cast some doubt as to whether the alternatives presented were really considered as viable options. Also, some of the assumptions upon which the IA is based might merit some further examination. For example, this might be the case concerning the current and potential future consumer demand for portability based on Eurobarometer data. Finally, the IA could perhaps have been clearer from the start that the real issue at hand concerns almost exclusively limited portability of online content services in the AV sector and sport premium content services, but that for reasons of legal certainty, all sectors are technically covered by the initiative (IA, p. 21).

This note seeks to provide an initial analysis of the strengths and weaknesses of the European Commission's Impact Assessment accompanying the above proposal, adopted on 9 December 2015. This proposal is one of the first legislative initiatives proposed under the umbrella of the Digital Single Market (DSM) Strategy. The DSM Strategy is in itself one of the ten political priorities of the Juncker Commission. The portability proposal aims to contribute to the key objectives of the DSM allowing for better online access to digital goods and services across the EU Member States when travelling. Further legislative proposals in the field of copyright are expected in 2016. Overall, the impression is that this IA has made a reasonable attempt to analyse the current situation, substantiating the need for EU action to solve the issue. The IA draws upon a wide range of research from different sources and disciplines, both external and internal, and the stakeholder consultation appears to be broad. However, the objective of the present initiative (to ensure cross-border portability) is formulated in such a way that it can in fact only conceivably be achieved by a legislative solution that prescribes portability on a mandatory basis (meaning Option 3, which is the Commission's preferred option). This could cast some doubt as to whether the alternatives presented were really considered as viable options. Also, some of the assumptions upon which the IA is based might merit some further examination. For example, this might be the case concerning the current and potential future consumer demand for portability based on Eurobarometer data. Finally, the IA could perhaps have been clearer from the start that the real issue at hand concerns almost exclusively limited portability of online content services in the AV sector and sport premium content services, but that for reasons of legal certainty, all sectors are technically covered by the initiative (IA, p. 21).