Chillin'Competition

Publicly exposed as I have been, I have no choice but to be back in my capacity as interim blogger (which I confess is something I pretty much enjoy). It is not even a bad time for Alfonso to be extremely busy. Some readers will remember a post I uploaded a few months ago on a ‘not-so-mainstream’ pending case, which addressed some questions that I follow closely. Right on time, Advocate General Cruz Villalon delivered his opinion on 30 April, which is for the time being only available in French.

The fundamental question raised was that of whether a multichannel bundle offered by a cable operator is an ‘electronic communications service’ within the meaning of the Regulatory Framework for electronic communications. The material scope of the Framework was defined in an awkward way, as ‘services providing, or exercising editorial control over, content transmitted using electronic communications networks and services’ were not covered by it. This would mean that audiovisual media services (TV channels, on demand services and others) are subject to a different set of rules (typically media laws, which follow a different logic).

A careful reading of the Regulatory Framework suggests that multichannel services provided by cable operators do not qualify as ‘electronic communications services’ . In that sense, the question raised by the Dutch Court looked like a non-issue. This seems to stem clearly from Recital 45 of the Universal Service Directive, pursuant to which ‘[s]ervices providing content such as the offer for sale of a package of sound or television broadcasting content are not covered by the common regulatory framework for electronic communications networks and services’. It is also something that derives from Article 31 of the same Directive, which is carefully worded so as to make it clear that ‘must-carry’ obligations do not apply to the said packages but only to the exploitation of the infrastructure. What is more, the Commission and the National Regulatory Authorities seemed to assume that the said services are not caught by the Framework.

In his analysis of the question, Advocate General Cruz Villalon does not refer to the Universal Service Directive. This is surprising, if only because it seems to provide the most straightforward and directly relevant answer to the question. The Opinion does not go beyond the generalities and the definitions found in the Framework Directive. As a result (and this time unsurprisingly), the answer suggested by the Advocate General fails to bring a satisfactory solution to the real problem created by the truncated scope of the Regulatory Framework. He takes the view that multichannel bundles qualify as ‘electronic communications services’ insofar as (my free translation of ‘des lors que’) they comprise the transmission of electronic communications signals. But then does this mean that only the transmission element of the activity is caught by the Framework? Or does it mean that the bundles as a whole are caught by it? I hope the ECJ will be more explicit in this regard.

A la prochaine!

Pablo