The Commission's proposal, which is presented to us in the form of a draft EU regulation, was circulated by the Commission by covered letter dated 26 March. At this time we remain within the standstill period required by the treaty to allow national parliaments to consider the issue of the subsidiarity before the paper is placed on the agenda for consideration in detail within Council and with the Commission. The following comments on the draft text are therefore restricted to a departmental interpretation of the current proposal without the benefit of having consulted with other member states or the Commission in particular detail. The proposal is consistent with current Government policy, as set out in the national broadband plan, Delivering a Connected Society, which was published by the Minister in August 2012.
I propose to speak briefly on the Commission proposal under a number of headings, including a brief background to the introduction of the current Commission proposal in the context of its contribution or its ability to assist us in delivering the Government's national broadband plan, a summary of the obligations arising from the Commission proposal, the qualified nature of the access rights proposed by the Commission, some more detail but nevertheless brief comments on the structure of the proposal and the rights and obligations arising and concluding with the Department's initial views on the Commission's proposal.
The narrow objective of the proposed regulation is to reduce the costs and enhance the efficiency of deploying new high speed electronic communications infrastructure by scaling up existing best practices across the EU with a view assisting in the delivery of EU targets to make ubiquitous access to fast or super fast broadband available at fixed locations across the EU by 2020. The Commission estimates that this initiative will require a significant capital investment across the EU which it estimates will be up €63 billion. It is widely agreed that civil engineering works - that is taking the cable into the ground or overhead, civil works as we call them in the trade - constitute the dominant part in overall next generation broadband network deployment costs, irrespective of the technology. Even if one was using wireless technology or digging a trench for the cable, the figure would be in the same ballpark. The total estimated cost is €63 billion across the EU. The EU Commission estimates that if these proposals are adopted, costs could be reduced by between 20% to 30%.
Following research and consultations by the Commission, the proposal identifies and addresses four main problem areas in delivering next generation broadband access. The areas identified by the Commission are issues, inefficiencies or bottlenecks concerning the use of existing physical infrastructure such as, for example, ducts, conduits, cabinets and other infrastructure used in the provision of other utility services such as electricity, gas, transport and water. Bottlenecks relate to co-deployment, inefficiencies regarding administrative permit granting and bottlenecks concerning deployment within buildings. The buildings would be multi-occupancy units rather than residential single dwellings.
In summary, the regulation, if adopted, would require member states to withdraw any legal text which prohibits other utility infrastructure providers in the electricity, gas, transport and water markets from concluding agreements with next generation network investors to access their networks. It would require the alternative infrastructure providers to make information under existing and planned infrastructure available if requested. Such network providers would be required to meet all reasonable requests for access to the networks unless there is good reason not to permit that access. It would require greater harmonisation in the granting of statutory authorisations to permit construction. Co-ordination in Ireland would be across local authorities whereas in federal states it would be across the different regions or cantons. It would also require that new build multi-occupancy development units or any major refurbishment of existing multi-occupancy units, which require planning permission, would make provision for ducting to allow subsequent broadband connections possible. In other words, the ducts would be installed at the time of construction rather retrofitted and it would require member states to establish administrative dispute resolution processes to provide fast and inexpensive dispute solutions.
These are the main effects of the Commission's proposal. The access rights to networks of other utilities it is proposed to establish - which are possibly the most controversial - are not absolute rights, rather they are conditional and qualified. The obligation to allow high-speed broadband providers to access other networks is subject to a number of exemptions, for example, in the case where an alternative network operator already offers a telecommunications product to the market, the competing telecommunications service provider must purchase that product rather than demand a right to lay its own cable, if an alternative operator can demonstrate, on reasonable grounds, the physical infrastructure to which access has been requested is not suitable, if there is a lack of space to host the proposed facilities, if there is a risk to the integrity or security of the network already deployed or if there is a risk of serious interference from the planned electronic infrastructure with the provision of other services.
That might arise with the gas market, for example.
There are a number of exceptions which seem reasonable on the face of it. The text of the proposal is relatively short. I will summarise its content as follows on an article-by-article basis if that is of assistance.
Articles 1 and 2 are procedural in nature, setting out the scope and definitions. Article 3 establishes the general right of network operators in the electricity, gas, transport and water markets to offer access to their physical infrastructure and imposes an obligation on network operators to meet reasonable requests for access under fair terms and conditions, but subject to the permitted exemptions I have mentioned. This article also provides for a dispute settlement body to review any refusal to permit access or any unresolved dispute regarding terms and conditions of access. As is the case throughout the Commission proposal, the role of the dispute resolution body is to provide a fast and inexpensive process which is explicitly without prejudice to the rights of the parties to make applications to the courts.
Article 4 generates a right of third parties to access a prescribed minimum set of information concerning existing physical infrastructure as well as planned civil works. It also obligates those network operators to meet reasonable requests for in-site surveys of specific elements of networks to see whether they can assist the telecommunications sector, again, subject to the exemptions to which I referred.
Article 5 contains an obligation and right to negotiate co-ordination of planned civil works - future planned works - on transparent and non-discriminatory terms. Article 6 establishes a right of access using electronic means to information regarding statutory obligations which vary across the EU 27. In administrative terms we are talking about road opening access rights and way leaves. Provision must be made to allow application for the permission to be made to one contact point within each member state.
Article 7 establishes an obligation to equip new or renovated multi-occupancy buildings with in-building physical infrastructure or ducts to permit the completion of connections to individual units via a hub located outside the building. Article 8 allows electronic communications network providers to terminate their network outside the building at the hub to facilitate connections to individual units. Articles 9 to 11 concern additional procedural provisions regarding the designation of competent bodies and other procedural matters on which I will not dwell.
We are currently in the stand-still period on this proposal and have not therefore engaged in any detail within Council or with the Commission. Subject to that proviso, the Department’s initial response is to welcome the Commission’s proposal. The requirement to allow other network providers to negotiate with telecommunications networks investors is consistent with Government policy set out in the national broadband plan, in so far as it encourages all commercial and non-commercial State bodies to enter into such agreements where that can be done on a commercial basis beneficial to a landowner or infrastructure. The exemptions permitted in the Commission’s proposal seem proportionate and should enable us to resolve any conflicts that might arise on a case-by-case basis. It is also the case that the right of access is limited to access to existing or planned infrastructure. Our concern in that regard is that a telecommunications service provider could arrive and say it needs another provider to invest additional funds to allow it to lay its cables. There is no obligation. The proposal concerns existing infrastructure only.
The proposals to harmonise permit granting procedures is also broadly consistent with the national broadband plan which recognises that the more efficient and cost effective the various approval systems are for the roll-out of the required next generation broadband infrastructure.
The proposed dispute resolution body, which aims to provide timely and inexpensive decisions, should be beneficial to all parties if they come to it in good faith. In the case of disagreement by any party with a proposed solution, the Commission proposal is explicit in recognising that the dispute can then be referred to the courts. We are, therefore, of the opinion, at this very preliminary stage of debate at Council, that the Commission proposals are consistent with established national policies on access to alternative infrastructure and on that basis our opening position is that the proposal is a welcome development but subject to detailed debate in due course.