25 July 2003

Hubert Mortemard de Boisse

The French Parliament has not yet adopted laws to transpose the new package into French law, although the French Government has published a draft bill[1]. Assuming adoption by the Conseil des Ministres by July 31, 2003, the French Parliament will then have to review the draft, a parliamentary debate which may last several months, leading to likely transposition between the end of this year and mid-2004.

In the absence of express implementation, reliance will be placed on the EU law principle of ‘direct effect’. French precedents on this principle and its application to the electronic communications package are being relied on by the Ministry in charge of telecommunications and the French National Regulatory Authority (the ART) to produce a set of Guidelines covering this transitional period.

According to several French precedents on the principle of direct effect of EU Law, the direct applicability of the new package will depend on whether it involves relationships between two natural or legal persons, or relationships between a party and a public authority.

  • Between natural or legal persons (i.e. horizontal effect), the current French Telecommunication Act of 1996 remains fully applicable until transposition of the new rules is effected, but will be interpreted in the light of the new EU framework when this is possible.
  • In relationships between a party (e.g. a licensed operator) and a Public Authority (i.e. vertical effect), common Guidelines adopted on 17th July 2003, concerning the transitional regime[2] will be adhered to by the Ministry and the ART.

By means of endorsement by these Guidelines, large sections of the new rules will be deemed to be in force from 25 July. This covers:

  • Authorisations: Declarations of intention will replace the submission of an application for a licence
  • Licence fees: there will no longer be an application fee for seeking a licence, but fees for exploitation of the General Authorisation, numbering or frequencies will still be payable
  • Litigation and settlement of disputes: according to the French precedents on direct effect, the situation is different according to whether it concerns the right to proceed before the ART (vertical effect), or the obligations assigned to an operator, at the request of another licensed operator. For the former, the ART will consider disputes according to the letter and spirit of the new rules. For the latter, an operator cannot be assigned an obligation that does not yet have effect in law. Such situations should therefore be submitted to the ART for consideration of the substance.

Other provisions, e.g. those concerning interconnection, access, ex ante obligations on dominant operators or those with Significant Market Power or Universal Service denominations, are immediately applicable to the extent that the Telecommunication Act complies with the new rules.

Where this is not the case, beneficiaries would have no choice but to wait for transposition and, possibly, to make a claim against the French Government for financial compensation for the damage caused to the individual by the Government’s failure to adequately transpose a directive into national law in due time.