Legislating by ordinance to transpose the Telecoms Reform Package in time

The Law “transposing a number of harmonising provisions from EU legislation on matters of health, employment and electronic communications” was published on 23 March 2011. www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000023751262&dateTexte=&categorieLien=id

The aim of the Law is to transpose the relevant European legislation as quickly as possible, to prevent the European Commission from imposing additional sanctions on France if it misses the deadline for implementation. The European Commission has made it publicly clear that it intends to use its power to impose sanctions for any delay in implementing Directives, with the procedure for imposing penalties beginning automatically immediately after the relevant deadline has passed. France need not be reminded that it was ordered in 2008 to pay a €10 million fine for its delay in implementing Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms: the penalty was ordered even though the legislation had been implemented by the time the ruling was made.

The Law includes two chapters which contain the relevant legislation transposing a certain number of EC Directives relating to health and certain regulated professions or activities.

The third chapter relates to the European regulatory framework governing electronic communications, adopted on 25 November 2009, also known as the “Telecoms Reform Package”. The Law does not contain the relevant legislation itself but rather gives power to the government to legislate by ordinance within eight months of the law being enacted. It has however to be borne in mind that the European deadline for the legislation to be transposed into French law is 25 May 2011. Once enacted, the Ordinance must be presented to Parliament for ratification by the end of the third month following publication of the ordinance.
The ordinance will contain:

1. the necessary legislative provisions to implement Directive 2009/140/EC “Better Regulation” amending the following Directives:

• 2002/21/EC “Regulatory Framework Directive”

• 2002/19/EC “Access Directive”; and

• 2002/20/EC “Authorisation Directive”;

2. the necessary legislative provisions to implement Directive 2009/136/EC dated 25 November 2009 on “Citizens’ Rights”, amending the following:

• Directive 2002/22/EC “Universal Service Directive”;

• Directive 2002/58/EC “e-Privacy Directive”; and

• Regulation (EC) No 2006/2004 “Regulation on Consumer Protection Cooperation”;

3. legislative provisions aiming to improve efficiency in the management of radio frequencies, (in particular by encouraging the development of a secondary market for frequencies and by strengthening control systems for preventing interference);

4. all the legislative provisions necessary to:

• safeguard privacy and confidential Internet correspondence;

• to prevent and remedy infringements and serious threats to the security of communication systems; and

5. Any other provisions required to amend errors and clarify certain provisions in the French electronic communications code.