Implementation of the 2002 Electronic Communications Package in Germany


The new Telecommunications Act is intended to be an evolution, not a revolution: it will pick up where the 1996 Telecommunications Act will leave off.

Learning from past difficulties, the new Act devises more nimble administrative processes and shorter deadlines for dispute resolution.

Regulation, based on competition rules, replaces detailed sector specific rules wherever possible, but particularly in markets where competition is already effective. However, in contrast to the UK position of keeping the legislation flexible and enabling the regulator to take decisions, the German authorities are hard wiring some provisions into the law in order to limit the scope for interpretation. This applies, for example, to network access regulations.

Under the new law, access to the market for providers of commercial telecommunication services will only be subject to a duty to give written notification to the regulator, the ‘RegTP’. Notifications will be required to describe the service proposition, including changes as and when they happen.

An anticipated major improvement is progress in the way in which market definition and market analysis will be carried out, based on the Commission Guidelines. This will support the disentanglement of ex ante regulation from the application of competition law where this would be more appropriate. The current intention is that the list of markets susceptible to review should be determined every 2 years, and market reviews conducted as needed. Improvements are also being made to the power to impose fines for abuse of a dominant position, based on ‘behavioural misuse’.