DLA Piper Intelligence

Telecommunications
Laws of the World

Overview of legal landscape

France
France

Subject to a handful of discrete exemptions (notably concerning the use of spectrum or numbering resources), electronic communications operators have general authorisation to operate in France and do not require a licence, permit, consent, etc. This concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States.

Nevertheless, unlike some other Member States, France requires electronic communications operators to file a prior declaration with the telecoms regulator - the Autorité de Régulation des Communications Electroniques et des Postes or Authority of Electronic communications and Posts (ARCEP).

The roles and responsibilities of ARCEP are codified in the Code on Posts and Electronic Communications (CPEC). ARCEP regulates all electronic communications services including fixed line telecoms, mobiles, plus the airwaves over which wireless devices operate, and postal services.

Last modified 5 Oct 2016
Overview
France

Subject to a handful of discrete exemptions (notably concerning the use of spectrum or numbering resources), electronic communications operators have general authorisation to operate in France and do not require a licence, permit, consent, etc. This concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States.

Nevertheless, unlike some other Member States, France requires electronic communications operators to file a prior declaration with the telecoms regulator - the Autorité de Régulation des Communications Electroniques et des Postes or Authority of Electronic communications and Posts (ARCEP).

The roles and responsibilities of ARCEP are codified in the Code on Posts and Electronic Communications (CPEC). ARCEP regulates all electronic communications services including fixed line telecoms, mobiles, plus the airwaves over which wireless devices operate, and postal services.

Last modified 5 Oct 2016
Laws and regulations

The main primary legislation governing telecommunications in France is Law No. 2004-669 of July 9, 2004 on electronic communications and audio-visual communication services, as further amended and supplemented by:

  • Order No. 2011-1012 of August 24, 2011, on electronic communications
  • Decree No. 2012-436 of March 30, 2012
  • Decree No. 2012-488 of April 13, 2012

These laws and regulations implement the following European Directives:

  • Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services as amended in 2009
  • Directive 2002/20/EC on the authorisation of electronic communications networks and services as amended in 2009
  • Directive 2002/ 19/EC on access to and interconnection of electronic networks and associated facilities as amended in 2009
  • Directive 2002/22/EC on universal service and user rights as amended in 2009

All primary legislation governing the telecommunications sector in France is codified into the CPEC. The ARCEP also regularly enacts decisions or recommendations on more specific regulatory matters, such as frequency planning, value added services regulations, tariffs regulation, etc.

In addition, the following legislation (as well as the subordinate legislation and regulations sitting underneath) may also impact the provision of electronic communications services and the operation of electronic communications networks:

  • Law No. 2008-776 of August 4, 2008, on the modernisation of the economy
  • Law No. 2008-3 of January 3, 2008, on the development of competition in favour of consumers
  • Law No. 2004-575 of June 21, 2004, on the confidence in digital economy
  • Law No. 78-17 of January 6, 1978, on data processing, data files and individual liberties

The key targets and features of the primary legislation applicable to telecommunications, as codified in the CPEC, are the following:

  • Measures aimed at ensuring fair competition between operators and an efficient regulation of the electronic communications sector, notably via the specific missions and rights granted to ARCEP and warranties to ensure its independence
  • Regulating the management and allocation of radio frequencies and telephone numbers (including premium rate telephone services) to operators
  • Protecting consumers and personal data, including for example, requirements to provide specific information to consumers, to provide notice in case of security breach, and to protect the content of their communications from unauthorised disclosure
  • Empowering ARCEP to hear disputes between electronic communications operators (although referral to ARCEP does not preclude the bringing of court proceedings)
Last modified 5 Oct 2016
Regulatory bodies

Autorité de Régulation des Communications Electroniques et des Postes - ARCEP

Address: 7, Square Max Hymans, 75 730 Paris Cedex 15
www.arcep.fr

ARCEP is an independent authority that has jurisdiction over all electronic communications services and all electronic communications operators as defined under the CPEC.

Last modified 5 Oct 2016
Regulated activities

There are two types of electronic communications operators for the purposes of the CPEC: operators of electronic communications networks (ECN) and operators of electronic communication services (ECS).

An 'electronic communication network' is defined under the CPEC as a system based on transmission installation for the conveyance, by the use of electrical, magnetic or electro-magnetic energy, of signals of any description.

An 'electronic communications service' means a service entirely consisting in, or having as its principal feature, the conveyance (including the sending, transmission or receipt) by means of an electronic communications network of signals (except in so far as it is a content service). The above illustrates the breadth of regulated activities. Even if a service is provided over the use of another network (or through an agreement with another electronic communications operator), the entity providing that service is subject to the same regulations and so is considered an operator of an ECS.

ECN and ECS operators are both regulated under the CPEC, and are subject to ARCEP's regulation and control. Before 2004, ECNs and ECS operators were subject to two different legal regimes under the CPEC. However, since 2004, both types of operators are submitted to the same legal regime.

ARCEP also regulates the allocation of radio frequency blocks and telephone numbers in France.

Last modified 5 Oct 2016
Registration / licensing

Electronic communications operators have general authorisation to operate in France and do not require a licence, permit, consent, etc. This concept of general authorisation is derived from the European Authorisation Directive which has been implemented in EU Member States.

Nevertheless, unlike some other Member States, France does require electronic communications operators to file a prior declaration with the telecoms regulator, ARCEP. Electronic communications operators must file a preliminary declaration with ARCEP before the effective launch of their activities in France.

The information to be provided in the declaration notably includes the following:

  • Nature of the activity

  • Category of targeted clients

  • Geographical coverage

  • Type of electronic communications services provided

  • Network infrastructures

The information provided in the declaration must be kept up-to-date by the operator through the sending of an amended declaration, if necessary.

Non-compliance with this obligation is punishable by criminal sanctions.

In addition, any operator wishing to operate a mobile communications network and/or to provide mobile communications services using scarce resources (ie radio frequencies or numbering) shall be granted with an authorisation from the ARCEP.

Last modified 5 Oct 2016
Establishment

From a telecoms regulatory perspective, there are no requirements for an electronic communications operator to be domiciled in France. Advice should however be sought from a tax perspective.

Last modified 5 Oct 2016
Interconnection/roaming

A specific agreement providing for the technical and financial conditions applicable to the interconnection or the national roaming services, must be entered into between the two operators at issue and disclosed to ARCEP upon request.

In certain circumstances, and notably to foster competition between operators, ARCEP may impose technical and/or financial conditions for the interconnection or roaming, in an objective, transparent and non-discriminatory way.

With regards to interconnection:

  • The CPEC requires all public electronic communications network operators (irrespective of ownership of the network) to provide interconnection services to other public electronic communication network operators (including operators established in another EU Member State). A request for interconnection cannot be rejected if it is justified considering the needs of the requesting operator and the capacities of the hosting operators to satisfy such needs.

  • Where ARCEP has found that one operator has a 'significant influence' on a relevant market, such operator will be bound by additional obligations with respect to interconnection, including notably the obligation to publish an interconnection offer, in compliance with ARCEP's specific regulations and guidance.

  • Interconnection agreements must include several mandatory provisions and notably details on the measures taken by both operators to ensure the security and integrity of the networks, services interoperability and data protection.

  • ARCEP regulates the wholesale rates for termination of phone calls from other networks. All operators are currently required to provide call termination on fair and reasonable terms, conditions and charges.

ARCEP also has jurisdiction over any disputes between operators in relation to interconnection or roaming.

Last modified 5 Oct 2016
Consumer protection

The CPEC contains a number of consumer specific provisions. A 'consumer' is defined as someone who uses or requests a service for non-business use.

Specific obligations relating to consumers include:

  • The requirement to include certain mandatory terms in consumer contracts
  • Conditions relating to term and termination
  • The requirement to make certain information available to the customer, including a description of the services offered and the standard tariffs
  • Availability of number portability
  • Restrictions on sales and marketing activities

In addition to specific telecoms regulations and codes, provisions of general consumer law also apply such as rules concerning unfair consumer terms.

Last modified 5 Oct 2016
Taxes and fees

The following basic taxes and fees are payable by electronic communications operators:

Tax on services

Electronic communications operators must pay to the tax authorities an annual tax of 1.3% of all turnover earned from their electronic communications activities in France which is over EUR 5 million (taxes, interconnection and access fees excluded).

Tax for the funding of the universal service

Electronic communications operators must pay an annual tax for the funding of the universal service, which will be calculated pro-rata to their annual turnover (taxes, interconnection and access fees, and radio/TV broadcasting services fees excluded, and roaming-out fees included).

In case the annual turnover of the operator is under EUR 5 million for a given year, an exemption may apply. In other cases, the amount of the tax due is decided by ARCEP on a case-by-case basis.

Tax on the use of scarce resources

Any operator which has been granted with scarce resources, whether spectrum or numbering, shall pay a specific annual fee.

Last modified 5 Oct 2016
Enforcement

Among its legal obligations, ARCEP is notably in charge of ensuring that electronic communications operators fully comply with their respective obligations pursuant to the CPEC and other applicable regulations.

Where ARCEP identifies a breach, it may, upon its discretion or following a claim, send a prior notice to any non-compliant operators and require them to take the necessary steps to rectify the breach. If the operator does not remedy the breach within the specified time, ARCEP may:

  • Suspend the rights of the operator in relation to its activities (for a maximum duration of three years), or

  • Levy a fine which will be proportionate to the seriousness of the breach and to the benefits drawn from such breach by the operator (within the limits of 3% of its net annual revenue, or EUR 150,000 in the event its previous annual revenue cannot be assessed)

ARCEP may also require entities to provide certain information relating to ARCEP's regulations or to their networks and/or services.

Last modified 5 Oct 2016
Contacts
Florence Guthfreund-Roland
Florence Guthfreund-Roland
Avocat à la Cour and Partner
T +33 1 40 15 25 08
Mathilde Hallé
Mathilde Hallé
Associate
T +33 (0)1 40 15 24 41
Last modified 5 Oct 2016