Regulation 8 – Specific exclusions in the field of electronic communications

Commentary

Regulation 8 transposes Article 8 of Directive 2014/24/EU setting certain Specific exclusions in the field of electronic communications, which apply to the exploitation of public communications networks or the provision to the public of one or more electronic communications services by contracting authorities, as defined in Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services.

The Regulation adopts the almost exact wording of Article 8 Directive 2014/24/EU with the only addition that the reference to the definitions included in Directive 2002/21 includes “as amended from time to time“, which creates a dynamic referral to avoid future amendments, should the EU rules change.

Paragraph 2 of the Regulation cross-references “public communications network” and “electronic communications service” to the definitions provided in Directive 2002/22/EC. According to Article 2(c) and (d) of this Directive they mean respectively:

“electronic communications service” means a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society services, as defined in Article 1 of Directive 98/34/EC, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks”

“public communications network” means an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services”

An example would be municipal wifi networks such as the one Barcelona and other Spanish cities provide. Regulation 8 simply copies and pastes Article 8 of Directive 2014/24/EU, but one must wonder what is the logic behind this exclusion as the contracting authority will not be operating under market conditions – which was the reason why communications were dropped from Utilities rules ages ago – but offering a public service that could be analogous to water, electricity or waste disposal. The first two are currently covered by the current Utilities Directive (Directive 2014/25/EU) whereas the third is fully covered by Directive 2014/24/EU. It would seem that if a municipality wants to offer a free wifi service,* the procurement will be completely exempt from the bulk of EU rules as neither Directive is applicable. It simply does not make sense, particularly as creative contracting authorities could use the principal purpose excuse to attach unconnected items or services to that excluded contract.

* Yes, the definition of Directive 2002/22/EC Article 2(c) refers to normally paid services and it can be argued that wifi is normally provided for a fee but i) the definition does not exclude free services; ii) the market has evolved significantly since 2002 and there are quite a few providers that now offer free wifi, for example in cafes and restaurants.

Last modified: July 4, 2016 by Pedro Telles

8.—(1) This Part does not apply to public contracts, or design contests, for the principal purpose of permitting contracting authorities to provide or exploit public communications networks or to provide to the public one or more electronic communications services.

(2) In this regulation, “public communications network” and “electronic communications service” have the same meanings as in Directive 2002/21/EC of the European Parliament and of the Council(1) as amended from time to time.