25 July 2003

Gerrit Jan Zwenne

In The Netherlands the legislator has chosen to amend the current Telecommunications Act 1998 (“Telecommunicatiewet”) rather than drafting a completely new Act. This is because of the limited timeframe for implementing the Directives combined with the fact that the Dutch government has been outgoing since May last year and a new cabinet was only installed in June this year. Nevertheless there has been a feeling within the market and the NRA (“OPTA”) that, given the implications of the new regulatory framework, a completely new Act is far more preferable.

On 15 April this year the State Secretary of Economic Affairs (“Economische Zaken”) submitted the legislative proposal (Bill 28851) to Parliament. This legislative proposal aims to implement the new regulatory framework in full, except for the new e-communications privacy directive (2002/58/EC). In order to implement this directive the State Secretary submitted another legislative proposal (Bill 28962). Last year market parties and OPTA were given the opportunity to comment on the first drafts of these Bills.

The State Secretary anticipated that the new regulatory framework would not be implemented in time. For this reason the State Secretary included a new provision in a legislative proposal (Bill 28203) that had already been submitted to Parliament. Pursuant to this provision all existing provisions that provide for rights or obligations for telecoms providers, subscribers and end users (and the like) would remain effective after 25 July this year, to the extent that these existing provisions are not in conflict with the new regulatory framework. However, Parliament decided that it would discuss this legislative proposal after the summer recess (i.e. September). Therefore, there seems to be a ‘legislative vacuum’ as of 25 July this year.

With respect to this ‘legislative vacuum’ the State Secretary has expressed in Parliament that none of the provisions of the new regulatory framework can have direct effect. It is not certain whether this will hold up in Court. The argument that the new regulatory framework will have some kind of direct effect has already been used in a number of proceedings between OPTA and KPN Telecom.

As a result of the use of the concept of ‘e-communications’ instead of ‘telecommunications’ the scope of the new amended Telecommunications Act will be extended. The new amended Act will substantially amend Chapter 6 which includes the interconnection regime and the significant market power (“SMP”) regime. Apart from the new regime for the definition of relevant markets and designation of parties with SMP, as set out in the framework and access directives (2002/21/EC and 2002/19/EC), the new amended Act will no longer include rights and obligations to negotiate interconnection, but a right to negotiate measures (incl. interconnection) that ensure interoperability.

Further, the rights of end users and subscribers will be included in Chapter 7 of the new amended Act and not in the Ministerial Decree on Leased Lines and Telephony (“Besluit ONP Huurlijnen Telephony” or “BOHT”) as they were before. Moreover the provisions on traffic and location data, and about unsolicited communications, included in Chapter 11, will be amended as well. Last but not least the scope of Chapter 12 of the Act will be amended substantially, as it will comprise all dispute settlement arrangements, including the settlement of consumers’ complaints by the Dispute Committee (“Geschillencommissie") and the settlement of interconnection and access disputes between telecoms providers.