The Annual Law on Market and Competition for 2021 No. 118/2022 (Law on Competition) entered into force on 27 August 2022, introducing new provisions also pertaining to the electronic communications sector.
The Law on Competition has three objectives:
- promoting the development of competition, with a view to ensuring access to markets for smaller companies;
- removing regulatory and administrative obstacles to the opening of the markets; and
- guaranteeing consumer protection.
The Law on Competition introduces a set of provisions (also concerning the concession regimes, local public services and transports, energy and environmental sustainability, health protection, removal of burdens on companies, new powers for the antitrust enforcement), including rules pertaining to the electronic communications sector, namely concerning access to high-speed network infrastructures and user and consumer protection.
The legislative amendments introduced by the Law on Competition follow the more extensive and systematic changes implemented in December 2021 with the entry into force of the Legislative Decree no. 207/2021. That decree transposed Directive (EU) no. 2018/1972 establishing the European Electronic Communications Code through the amendment of Legislative Decree no. 259/2003, laying the Electronic Communications Code (our publication "New Italian Electronic Communications Code enters into force" is of interest on this matter).
Access to network infrastructure
The first change concerns the provisions regarding access to infrastructure and the deployment of optic fibre networks set forth by Legislative Decree no. 33/2016. This decree, by implementing Directive no. 2014/61/EU, establishes measures to reduce the cost of deploying high-speed electronic communications networks.
Article 22 of the Law on Competition amends Article 3 of the Legislative Decree no. 33/2016, which regulates the cases in which operators managing infrastructure and the network operators may refuse access to physical infrastructure. This is an exception to the general obligation to guarantee access to the infrastructure upon request by other operators with a view to deploying elements of high-speed electronic communications networks.
The Law on Competition introduces specific obligations for network operators and the operators managing the infrastructure. They now have to justify a refusal for access to the physical infrastructure and attach specific documents if the refusal is based on (i) the objective unsuitability of the physical infrastructure or (ii) the unavailability of space to host the elements of high-speed electronic communication networks. In particular, the Law on Competition provides that the network operators and the operators managing the infrastructure must list the "specific reasons" for the unsuitability or the unavailability of space, also providing "planimetries and technical documentation" proving the objective unsuitability or unavailability of space.
The objective is to enhance competition by reducing the risk of pretextual and not objective refusals for access.
The documentation that the operator is required to provide in case of refusal does not include "documentation that could constitute an exchange of sensitive information for the purposes of competition or that could jeopardize the security of the physical infrastructure".
Article 23 of the Law on Competition also replaces the first paragraph of Article 5 of Legislative Decree no. 33/2016 with provisions aimed at fostering coordination between operators managing infrastructure and network operators who intend to (directly or indirectly) deploy infrastructure. In particular, according to the new provision, operators managing infrastructure and network operators have to adopt "any useful initiative for the purposes of coordination with other network operators in relation to the process for requesting the permissions and for the purposes not to inefficiently duplicate the civil engineering infrastructures and for the sharing of deployment costs".
The Italian Communications Authority (AGCom) is entrusted with the task of adopting specific guidelines to ensure that, when infrastructure works are being carried out, the installation of additional physical infrastructure is encouraged if necessary to meet access requests by other network operators.
Article 24 of the Law on Competition replaces paragraph 3-quarter of Article 1 of Law Decree no. 7/2007 now expressly providing for the clear prohibition for "telephone and electronic communications operators" to "activate, without the prior express and documented consent of the consumer or user, subscribed services" provided by the operators or by third parties. The previous wording of the provision established the prohibition (for telephone and electronic communications operators) to "provide for the possibility for the consumer or the user to receive" subscribed services without the related prior express and documented consent.
The prohibition to activate services without the prior express consent of the consumer or user, which must be documented by the operator, applies to:
- electronic communication services provided by the operators, and
- "premium" subscribed services, provided by the operators or by third parties through the access operator. These are services provided upon payment, charged to the user's credit or telephone account, which usually include entertainment or informative content, such as games, video, photo and audio content, meteorological information, news and horoscopes. These services are often referred to as value added services (VAS).
With the changes introduced by the Law on Competition, the prohibition to activate now expressly includes "those services that involve the provision of digital contents either by SMS, MMS or by data connection, as well as instant messaging services, with charge on the telephone credit or billing document, offered either by third parties or directly by access operators".
The amendments introduced by the Law on Competition aim to clarify the prohibition for electronic communications operators to activate services provided upon payment without the prior express consent of the consumer or user, which must be documented, both when such services are provided by the operator and when the services are provided by third parties.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.