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John Timmer - Apr 22, 2009 12:11 am UTC

According to press reports, the EU's attempt to overhaul the Internet market within its member states has now set the EU's Parliament and said states on a "collision course." We've been reporting on the proposed telecom reforms package for several years now (most recently here), in part because its a massive overhaul and modernization of network policy, and in part because the unwieldy structure of the European political system has frequently allowed various interest groups and member states to insert their own take on issues into the package. The latest hold up arose over the handling of copyright infringers, but it has given various advocates of other issues the opportunity to mobilize against other features of the reform package.

If it's hard to follow what's going on, that's hardly surprising. The reforms package has been making its way through the European Parliament, a legislative body, under the direction of members of the European Commission, which is the executive branch. Commissioner Viviane Reding of Luxembourg, the Telecoms Commissioner, has had primary responsibility for the text. But, to actually be implemented, the reforms also need to be approved by the European Council, which is comprised of the individual union members' heads of state. Getting everyone on board for a single document has proven challenging.

Those challenges have been made greater by the fact that the proposed legislation takes different approaches to handling differences in the laws of member states, depending on the subject. So, for example, it demands interoperability among the networks of different EU countries, regardless of local laws. In contrast, when it comes to issues of network management and net neutrality, member states are permitted to set their own standards; nevertheless, the legislation states that companies throughout the EU are required to disclose any limits they place on traffic to their customers.

The two big sticking points so far seem to have been the place of net neutrality and the ability of ISPs to cut off repeat copyright offenders, through actions like the three strikes proposal that was recently defeated in France. According to Reuters, this latter issue seems to be the source of the latest spat among the principals. Both the EU states and Parliament have agreed on language that indicates a subscriber's service could be cut only after the case was reviewed by "a competent legal authority."

The EU member states, however, would like that policy to reside outside the body of the legislation in what's called a "recital." The Parliamentarians, however, feel that a stronger statement about copyright infringement would be made if it were part of the law proper. Reuters spoke with EU legal experts, who said that the European Court of Justice had ruled that the recitals carry the same legal weight as law, which gives an indication of how pointless this dispute is.

Nevertheless, a number of EU advocacy groups are ready to take advantage of any delays that result. Their complaints, however, focus on the net neutrality issue. The reforms package handles this issue by requiring open access to the network infrastructure for service providers and assuming competition among service providers will take it from there. The package itself, as noted, does demand that any company that provides fixed or mobile service disclose "information on any other conditions limiting access to and/or use of services and applications, where such conditions are allowed under national law in accordance with Community law."

So, for example, the group Blackout Europe is organizing an e-mail campaign to urge EU Parliament members to reject the package, saying, "under the proposed new rules, broadband providers will be legally able to limit the number of websites you can look at, and to tell you whether or not you are allowed to use particular services." It suggests that one possible result is Internet service that resembles cable TV in terms of providing different packages of sites and services. The group European Digital Rights has expressed similar concerns, as has the UK's Open Rights Group.

In the end, should the EU legislation permit these sorts of selective access policies, it will still be up to the individual member states to determine if and how to legislate them. And, as the failure to pass a three strikes law in France demonstrated, national legislatures can sometimes be as difficult to navigate as the European Community's system.

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