What is the EECC?

The EECC is an EU directive that came into force in December  2018, which   updates and consolidates existing European rules on electronic communications networks and services, as well as aligning them with recent technological developments in the markets, consumer trends and technology. The EECC broadens the scope of regulation to include all interpersonal communication services, in addition to those conveying signals. Specifically, the EECC:

  • enhances the deployment of 5G networks by ensuring availability and competition for investments
  • benefits and protects end-users by ensuring access to the network, guaranteeing better cybersecurity, increasing the level of protection of citizens in emergency situations, and increasing the transparency of service providers, as well as benefiting end-users in other ways
  • adds additional types of services to be regulated (see “Services subject to Electronic communications law” below)

The EECC was meant to be transposed into national legislations by 21 December 2020. However, the majority of EU member states, including Latvia, Estonia and Lithuania, failed to transpose the directive in time.

Law implementing the EECC in Latvia

On 27 July 2022, the new Electronic Communication Law (ECL) which transposes EECC finally entered into force in Latvia. Even though the main legislative piece has been adopted, the new ECL delegates powers to the Cabinet of Ministers and Public Utilities Commission of Latvia (PUC) to issue secondary legislation that would supplement the rules of the ECL. For example, the Cabinet of Ministers has to determine the procedures for managing numbering, establishing and maintaining the numbering database; and, for example, the PUC must issue rules on informing end-users on increased tariff calls and rules on information to be included in the electronic communication service contract summary.

In the meantime, the secondary legislation that was issued on the basis of the previous Electronic Communications Law will be in force until the new secondary legislation is adopted, but no later than 30 September 2022.

Services subject to the ECL

According to the ECL, an electronic communication service is a service that is usually ensured for remuneration, which consists of the transmission of signals using electronic communications networks and which covers one of the following services: an internet access service, interpersonal communications service or another service which wholly or mainly consists of the transmission of signals. As required by the EECC, the ECL implements new concepts in electronic communication services like interpersonal communication services, and number-independent and number-dependent interpersonal communication services. As a result, the electronic communication services subject to the ECL are defined more broadly compared to the previous regulation.

Thus, number-independent service providers, for example, WhatsApp, are also considered electronic service providers. These providers do not connect with a public switched telephone network like number-based providers do but work with an internet connection. By taking into account the development of number-independent actors, the EECC also places certain obligations on them; however, the scope of obligations is not as wide as it is for number-based providers. Specifically, obligations apply to number-independent service providers in cases where public interests require the application of obligations to all types of services. In particular, these are requirements regarding security provisions, cooperation with the regulator, transparency towards customers and data protection requirements. Therefore, ECL places certain obligations not only on number-based service providers but also on number-independent service providers.

Challenges regarding data retention requirements applicable to electronic communications service providers

The new ECL was accepted in Latvia in its final reading on 2 June 2022. However, the law did not enter into force  until 27 July as it had failed the final phase: presidential proclamation. The president sent the law back to the Saeima (Parliament of Latvia) emphasising that the initial version, and specifically, Sections 99, 100 and 101 of the ECL regarding the retaining of service users’ data and data transfer to supervisory authorities, imposed risks on persons’ rights to privacy and was incompatible with the EU laws and established EU case law. i.e., these provisions invoke an obligation on network operators, when providing number-dependent services and internet access services, to retain certain personal data for a period of 18 months and to provide this data to supervisory authorities upon their request.

At the moment, the wording of Sections 99, 100 and 101 in ECL remains the same as in the original version. However, according to the Transitional Provisions of the ECL, the Cabinet of Ministers must submit another draft law to ensure the compliance of these articles with EU law and established EU case law. The deadline for submitting the draft law is set as 31 December 2022. Until then, data can be transferred to supervisory authorities only according to the general procedural laws which provide for a more complicated procedure for requesting such data than was provided by the ECL.

Thus, while the ECL as the main regulation implementing the EECC is in force in Latvia, there are still several issues to be resolved by new laws and secondary legislation.

Implementation of the EECC in Lithuania and Estonia

The EECC was transposed in Estonia on 1 February 2022 with amendments to the Electronic Communications Act (ECA). As is envisioned with the EECC, the requirements of the ECA now also apply to many number-independent  over-the-top service providers such as WhatsApp and Messenger. In addition to transposing the directive, the amended ECA includes specific requirements for the use of hardware and software in communications networks to ensure national security. In essence, these requirements bar certain manufacturers’ components and software from being used in 5G non-standalone and next-generation networks, based on their country of origin.

In Lithuania, the EECC was transposed on 1 December 2021, when the new edition of the Law on Electronic Communications entered into force. Certain implementing regulations are still to be adopted or revised by the Communications Regulatory Authority to make them compatible with the implementation of the EECC.

Next steps

Entities providing electronic communication services to users in Latvia, or in Estonia or Lithuania, should consider whether their services subject them to the regulatory requirements provided for in the relevant electronic communications laws.

For more information, do not hesitate to contact our senior associate Linda Reneslāce.