Connect Europe, the voice of the leading providers of connectivity networks and services, has published a legal opinion on the European Commission proposal to mandate FTTH transition, outlined in Part V, Title I of the Digital Networks Act (DNA) proposal.

The industry body’s members are strong believers in the urgent need to accelerate fibre transition on a commercial and market-driven basis, as they constitute 54 per cent of the total European investment in FTTH.

The legal opinion 

The new legal opinion was provided by Professor and former ECJ judge Roberto Mastroianni. He concludes that key provisions of the European Commission’s proposal may be incompatible with primary European Union law.

The opinion focuses on Part V, Title I of the proposal, which would require the progressive switch-off of copper telecommunications networks, including FTTC infrastructure, and mandatory migration to fibre-optic networks (FTTH) across the EU by 2035.

According to the analysis, the proposal raises “multiple and converging grounds” of potential incompatibility with EU law. The opinion argues that the Commission may have exceeded the competences conferred on the EU Treaties by relying on Article 114 TFEU as the legal basis for measures that, in substance, pursue industrial policy objectives rather than internal market harmonisation.

The opinion further questions whether the proposed mandatory copper switch-off complies with the principles of subsidiarity and proportionality under Article 5 TEU. The analysis also raises concerns regarding compatibility with the Charter of Fundamental Rights of the European Union, in particular the freedom to conduct a business (Article 16) and the right to property (Article 17). The opinion states that the mandatory decommissioning of privately owned copper infrastructure could amount, in substance, to a form of indirect expropriation without compensation.

Additional concerns highlighted in the opinion include possible risks for consumers, such as reduced service continuity and freedom of choice, as well as potential distortions of competition and discriminatory effects between different categories of network operators.

Mastroianni is Professor of European Union Law at the University of Naples Federico II. He previously served as Judge at the General Court of the European Union and is widely recognised for his expertise in EU constitutional and institutional law.

“Europe needs to get to full fibre, and do it faster,” declared Connect Europe. “This can be done by deregulating private investment and ensuring a market-driven transition. New top-down regulation and switch-off mandates will only worsen the overall investment climate for European telecoms”.

Other posts by :

1. Blue Origin launch pad destroyed
2. AST SpaceMobile’s story “more than hype”
3. Musk to merge Tesla with SpaceX?
4. AST SpaceMobile aiming for 15-year satellite life?
5. SpaceX still targets intercontinental travel
6. Space 42: D2D market “massive”
7. Bank previews FCC’s AWS-3 re-auction
8. SES CEO “underpaid”
9. Bank rates Eutelsat ‘Neutral’

Categories: Articles, Broadband, Business, FTTH, Policy, Regulation, Telco

Tags: Connect Europe, European Commission, FTTH