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Information requirements to change under European communications contracts

18 October 2018. Published by Marlon Cohen, Senior Associate

The rules around what needs to be provided to consumers under communications contracts are going to be changing under the new European Electronic Communications Code. This will have implications for consumer contracts provided by communication providers in Europe, including broadband, voice and "over the top" providers.

The new European Electronic Communications Code (the Code) is moving closer to implementation and recently received approval from the European Council's Committee of permanent representatives. As part of the EU's Digital Single Market initiative, the Code repeals and replaces the current electronic communications regulatory framework in Europe. The current regulatory framework was transposed into UK law primarily through the Communications Act 2003 and the General Conditions under that Act.

The Code provides for a number of new requirements that will need to be dealt with in contracts that communications providers enter into with consumers (including information requirements, comparisons of offers, bundled offers, contract duration and termination of contracts). The type of contract information that will need to be provided to a consumer will depend on the type of "electronic communication service" being provided. The Code applies not only to mobile and fixed line broadband and voice providers, but will also apply to a range of "over the top" service providers (ranging from Netflix to Snapchat) as well as machine to machine service providers.

Contract summaries to be provided

As part of the changes, the Code includes a new requirement for communication providers to provide a contract summary together with the contract to be entered into with the consumer. BEREC, the European communications regulation body (of which Ofcom is a member), issued a consultation on 10 October discussing what types of information should be included in the contract summary that consumers receive. The report highlights that different regulators in Europe require varying levels of information to be provided to consumers of communications services. For example, some European countries have preformatted templates that have to be provided to consumers, whereas other countries insist that contract information has to be upfront and not relegated to the last page of the contract. BEREC is consulting on the information that needs to be provided, and the outcome will feed into the Code requirements.

 What does this mean for communication providers in the UK?

It isn't clear at this stage whether a withdrawal agreement will be entered into between the UK and the EU before Brexit takes place on 29 March 2019. The current Communications Act is modelled on the existing electronic communications regulatory framework in Europe, and Ofcom is a leading member of BEREC. The Code is also likely to come into force before 29 March 2019 – even though the obligations under the Code are phased in after that date.

If the UK decides to diverge from the rest of Europe in terms of communications regulation after 29 March 2019, the information requirements set out in the Code will apply nonetheless in other European countries. This could mean that a communications provider has different information requirements that apply to contracts in the UK as opposed to the rest of Europe. A more likely scenario is the UK following what the rest of Europe does in terms of best practice and these information requirements, unless there are material reasons not to do so.

What happens now?

BEREC is inviting interested stakeholders to provide feedback on their proposals. The BEREC proposals are set out here. The consultation ends on 7 November 2018.