EU countries to remove ‘tacit approval’ for admin procedures in broadband law

The controversial ‘tacit approval principle’ meant to speed up the roll-out of new broadband networks has been deleted from a new compromise text on a telecoms law, circulated by the Spanish presidency of the EU Council on Wednesday (8 November) and seen by Euractiv.

The Gigabit Infrastructure Act (GIA) is a legislative proposal to harmonise the administrative procedures and accelerate the deployment of mobile and fixed very-high-capacity networks like 5G and fibre cables.

Inside the Council, the negotiations reached a stalemate concerning the principle of ‘tacit approval’, a process whereby, after a set period, the lack of response by a competent authority is considered a formal approval.

“The notion of tacit approval is no longer part of the regulation,” states the Spanish presidency’s text.

This deletion does not come as a shock since many EU countries saw the measure as problematic due to the specificity of their public administration. Since July, the group passed from being a blocking minority to close to a majority.

Besides the problem of public administrations keeping up with strict deadlines, several EU countries considered this principle an intrusion on the rights of third parties and private property.

The reasoning is that if a competent authority fails to issue an answer within a set period, which transforms into a formal approval, third parties and private owners’ rights would be disrespected if they were opposed to granting the said permit.

Negotiating strategy

The Commission introduced the tacit approval principle in the original proposal. The European Parliament position introduced an exemption for EU countries “where the principle of administrative tacit approval does not exist in the national legal system.”

The definition of non-existence in the “national legal system” means that only member states where the principle of tacit approval does not exist in their entire legal framework, including industries non-telecom related, are exempted. Therefore, the provision might still meet significant resistance inside the Council.

Euractiv understands that deleting the “tacit approval” from the current version gives leverage to the Council in the upcoming inter-institutional negotiations, known as trilogues, with the Commission and the Parliament.

Minimum harmonisation

The new telecom law is meant to revise the 2014 Broadband Cost Reduction Directive. This legislation was also initially proposed as a regulation, but EU countries turned it into a directive to have more flexibility in adapting it to the national context.

The Spanish presidency managed to keep the Gigabit Infrastructure Act a regulation while watering down some measures based on the principle of ‘minimum harmonisation’.

This new text further guarantees EU governments’ room of manoeuvre in applying the law in their national jurisdictions.

Indeed, some sentences pinpointing EU countries’ rights to enforce stricter requirements on telecom infrastructures were deleted, considering that this was hinted at in the legislative intent of the text.

“The changes clarify that the flexibility granted to member states allows them to set out both stricter and more detailed rules than those set in the Regulation,” reads the text.

New wording also addresses the EU countries’ concerns over administrative burdens, notably by giving more flexibility to national authorities on the process they need to follow when answering requests sent by network operators and public sector bodies.

Secondly, Spain re-introduced a previous provision extending compliance deadlines by an extra 12 months for municipalities under 3,500 inhabitants.

The fourth circulated document further states that member states are not compelled to justify “specific and detailed reasons” for a refusal to access physical infrastructure in case it is of critical national importance.

Several modifications on coordination and transparency of civil works were included, aligning obligations set to private network operators with those of public sector bodies.

Next steps

The new text will be discussed at the technical level on 14 November. The Council’s position is expected to be endorsed at the political level by competent ministers during the Transport, Telecommunications and Energy Council on 5 December.

[Edited by Luca Bertuzzi/Alice Taylor]

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