Dutch at odds with EU telecoms law

Criticism of Dutch telecoms plans is justified.

In early October, Neelie Kroes, the European commissioner for the digital agenda, decried the Dutch parliament’s decision to include net-neutrality provisions in law – a topic on which you have run a critical opinion piece (“Net neutrality is not about human rights,” 14-19 July). 

This legislation is, rightly, controversial. However, debate about it has overshadowed other questionable amendments to telecoms and media legislation passed by the Dutch parliament’s lower chamber.

Two amendments to the Telecommunications Act and the Media Act could force content distributors, such as cable operators, to make their programming available for re-sale – at little more than cost – to competitors. They would also require network operators to provide access to their infrastructure at cost. The amendments are now under review by the Senate.

In our view, they are incompatible with the common regulatory framework (CRF) for the telecoms market that the EU has painstakingly developed since 2002.

The EU’s CRF gives lawmakers the right to impose regulation only “where there is no effective and sustainable competition”. They therefore cannot force network operators to grant access to their networks.

That is a task given to regulators – and they can demand changes to access only on the basis of careful economic analysis of the market.

Shortly before the lower house adopted the amendments, OPTA, the Dutch telecoms regulator, ruled that the Dutch broadcasting market is competitive.

Both these amendments are, therefore, in direct conflict with the CRF – and, in our view, with the fundamental freedom to provide services and the freedom of establishment set out in the EU treaty.

Proponents of the amendments argue that they only relate to the provision of content and, hence, fall outside the CRF’s scope. But this argument is both spurious and unconvincing: access to programming content is meaningless unless it is accompanied by access to distribution networks.

The changes are legally unenforceable. If they enter into law, the Dutch government could be exposed to an infringement action by the European Commission and/or applications for judicial review or injunction by aggrieved parties in national courts.

Leigh Hancher
Pierre Larouche

Tilburg University

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