ava i lab le at www.sc ienced i rec t . com

www.compseconl i ne .com/ publ i ca t ions /prodc law.h tm

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 2 1 – 2 7

EU update

Baker & McKenzie’s annual review of developments inEU law relating to IP, IT & telecommunications

David Halliday, Deena Hazini, Michael Dizon

Baker & McKenzie LLP, London, UK

a b s t r a c t

This is a summary of the Baker & McKenzie columns on developments in EU law relating to

IP, IT and telecommunications. This summarises the principal developments in the past

year that are considered important for practitioners, students and academics in a wide

range of information technology, e-commerce, telecommunications and intellectual prop-

erty areas and which were reported on in this column in 2007. It seeks also to update any

further development which may have taken place in relation to the specific topics since

originally reported. It cannot be exhaustive but intends to address the important points.

This is a hard copy reference guide, but links to outside web sites are included where pos-

sible. No responsibility is assumed for the accuracy of information contained in these links.

ª 2007 Baker & McKenzie LLP. Published by Elsevier Ltd. All rights reserved.

1. Copyright and trade marks

1.1. European Parliament resolution on collective cross-border management of copyright and related rights foronline music services

On 17 January 2007, the European Commission invited Mem-

ber States and collective rights managers to report on the

measures they had taken in relation to the Commission’s Rec-

ommendation of 18 October 2005 (2005/737/EC) on collective

cross-border management of copyright and related rights for

legitimate online music services. The purpose of the Recom-

mendation is to facilitate the growth of legitimate online ser-

vices in the European Community, by promoting a regulatory

environment which is best suited to the management of copy-

right and related rights for such services. Currently artists are

represented by their national CRMs which represent them in

their Member State and in other European Union countries

through reciprocal bilateral agreements. The Recommenda-

tion proposes to open up the copyright market to competition

by creating multi-territorial and pan-European licenses, and

0267-3649/$ – see front matter ª 2007 Baker & McKenzie LLP. Publisdoi:10.1016/j.clsr.2007.11.011

to let artists choose which Collective Rights Management

Societies (CRMs) should represent them. With respect to the li-

censing of online rights, the Recommendation proposes that

managers should be governed by these minimum rules:

� Right-holders should be able to determine the online rights

to be entrusted for collective management.

� Right-holders should be able to determine the territorial

scope of the mandate of collective rights managers.

� Right-holders have a right to withdraw any of their online

rights and transfer the multi-territorial management of

those rights to another collective rights manager.

� In case of transfer of the management of an online right to

another collective rights manager, all collective rights man-

agers concerned should ensure that those online rights are

withdrawn from any existing reciprocal representation

agreement concluded amongst them.

The Commission identified several policy areas where

comments and opinions by the market players were essential.

These were with regard to

hed by Elsevier Ltd. All rights reserved.

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 2 1 – 2 722

(1) the nature of the Recommendation – whether legally bind-

ing rules in regards to licensing, transparency and gover-

nance, assignment, withdrawal and online rights were

preferable;

(2) the concept of EU-wide licensing of copyright for online

music services;

(3) the scope of the Recommendation with regard to the rights

of various right-holders;

(4) whether governance and transparency issues were ade-

quately addressed.

All stakeholders were invited to comment until 1 July 2007

and a report on the comments is yet to be released.

On 13 March 2007, the European Parliament adopted a res-

olution in response to the Recommendation. Parliament

criticised the Commission’s failure to undertake a thorough

consultation process with interested parties and with Parlia-

ment before adopting the Recommendation. Parliament also

criticised the Commission’s decision to put forward a non-

binding recommendation and called for a Framework

Directive to be proposed under the Co-Decision procedure.

Parliament believes that this should aim at regulating the

collective management of copyright and related rights regard-

ing cross-border online music services, whilst also safeguard-

ing European cultural diversity, small stakeholders and local

repertoires.

The Parliament calls for measures to avoid strengthening

the position of profitable artists to the detriment of lower-

earning ones, and to assure that all right-holders receive

a fair share of royalties through the exclusion of mandates be-

tween major right-holders and CRMs for the collection of roy-

alties. Parliament also asks the Commission to conduct an

impact assessment of such global licenses on the economic

and social situation of authors. Parliament’s suggestions are

currently being considered by the Commission.

Call for comments: http://ec.europa.eu/internal_market/

copyright/docs/management/monitoring_en.pdf.

Commission Recommendation: http://eur-lex.europa.eu/

LexUriServ/site/en/oj/2005/l_276/l_27620051021en00540057.

pdf.

News: http://www.europarl.europa.eu/news/expert/infopress_

page/052-4043-071-03-11-909-20070309IPR04001-12-03-2007-2007-

false/default_en.htm.

2. Intellectual property

No developments.

3. Patents and designs

3.1. European Union joins international design treaty

On 18 December 2006, the European Council adopted a Deci-

sion and Council Regulation (EC) No. 1891/2006 to give effect

to the accession of the European Community to the Geneva

Act of the Hague Agreement relating to the international reg-

istration of industrial designs. The accession of the European

Community to the Geneva Act establishes a link between the

Geneva Act, which is administered by WIPO, and the Commu-

nity Design System, which is administered by the Office for

Harmonisation in the Internal Market (OHIM), to which all

applications for Community Designs are submitted. This will

allow EU companies to obtain protection of a design not only

throughout the EU with the Community Design, but also in

countries which are parties to the Geneva Act. So far there

are 23 countries who have become party to the Geneva Act,

including Singapore, Turkey and Switzerland.

On 24 July 2007, the European Commission adopted two

Regulations to implement this accession. The first text of the

Regulation amends Regulation No. 2245/2002 implementing

Council Regulation 6/2002 on Community Designs. The modi-

fications relate to the examination for registration and for re-

newals, and to publicity relating to international registrations.

The second text amends Regulation 2246/2002 concerning the

fees payable to OHIM. The modifications relate to the admin-

istration of individual fees for international registration.

Following the adoption of these enabling regulations, on 24

September 2007 the European Commission submitted its in-

strument of accession to the Geneva Act. From 1 January

2008, applicants will be able to obtain Community registered

designs by means of an international application (which could

also cover other non-EU countries which are signatories to the

Geneva Act).

Press release: http://europa.eu/rapid/pressReleasesAction.

do?reference¼IP/07/1160&format¼HTML&aged¼0&language¼EN&guiLanguage¼en.

European Commission Press Release: http://www.europa.

eu/rapid/pressReleasesAction.do?reference¼IP/07/1388&format¼HTML&aged¼0&language¼EN&guiLanguage¼en.

Council Regulation: http://eur-lex.europa.eu/LexUriServ/

LexUriServ.do?uri¼OJ:L:2006:386:0014:01:EN:HTML.

4. Data protection/privacy

4.1. European Commission recommends use of BindingCorporate Rules for transfer of personal data

On 10 January 2007 the Article 29 Data Protection Working

Party adopted a Recommendation on the standard application

for approval of Binding Corporate Rules (BCRs) for the transfer

of personal data. The Data Protection Directive 95/46/EC al-

lows personal data to be transferred outside the European

Economic Area only when the receiving country provides an

‘‘adequate level of protection’’ for the data or when the con-

troller ensures adequate safeguards are implemented with re-

spect to the protection of privacy. BCRs are one of the ways in

which ‘‘adequate safeguards for the protection of privacy’’

may be demonstrated by a group of companies in respect of

intra-group transfers of personal data to outside the EEA.

The Recommendation provides a standard application form

used by companies seeking approval of BCRs to secure the ap-

proval of the relevant EEA data protection authority in the

country the data are being transferred from. The form re-

quires input on applicant information including:

(i) structure and contact details of the applicant and of the

group of companies;

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 2 1 – 2 7 23

(ii) a description of the scope and nature of the data flows

from the EEA;

(iii) a determination of the lead data protection authority in

charge of coordinating the approval.

The applicant is also required to provide information on:

(i) the legally binding effect of the BCRs both internally

(between Group entities, and on employees and subcon-

tractors) and externally (for the benefits of individuals

whose personal data are processed by the Group) in

accordance with relevant national legislation;

(ii) the effectiveness of the BCRs, demonstrated by showing

that adequate safeguards are in place (often through an

audit programme);

(iii) cooperation with data protection authorities;

(iv) a description of processing and data flows within the

group;

(v) mechanisms for reporting and recording changes;

(vi) details of how their BCRs address the standard of data

protection safeguards necessary to protect the data being

transferred;

(vii) a copy of their BCRs.

On 7 March 2007 the Commission issued a Communication

to the European Parliament and the Council on the follow-up

of the Work Programme for better implementation of the Data

Protection Directive. The Work Programme was conducted by

the Working Party on the Protection of Individuals with regard

to the processing of personal data setup by Article 29 of the Di-

rective. In relation to BCRs, the Commission stated that

a greater degree of convergence of national data protection

legislations with the Directive was desirable to promote posi-

tive initiatives like simplification, self-regulation or the use of

BCRs.

Recommendation: http://www.bfdi.bund.de/cln_030/nn_

671600/SharedDocs/Publikationen/Art29Gruppe/WP133__en,

templateId¼raw,property¼publicationFile.pdf/WP133_en.pdf.

Communication: http://ec.europa.eu/justice_home/fsj/

privacy/docs/lawreport/com_2007_87_f_en.pdf.

4.2. Comments on Working Document on the processingof electronic health records

On 15 February 2007 the Article 29 Data Protection Working

Party adopted a Working Document on the processing of per-

sonal data relating to health in electronic health records (EHR).

The Working Document is intended to provide guidance on

the interpretation of the relevant data protection legal frame-

work for EHR systems, and analyses some of the general prin-

ciples. It also outlines the data protection requirements for

setting up EHR systems, and explores applicable safeguards.

The Working Document concentrates on the Data Protection

Directive (Directive) 95/46/EC, focusing on the general prohibi-

tion on the processing of personal health data contained in Ar-

ticle 8(1) of the Directive, then discusses the derogations from

the general prohibition, which should be interpreted in a nar-

row fashion.

The primary reason for the Working Party’s concern is that

EHR systems, by their very nature, make a patient’s medical

data more readily available and to a much wider group of po-

tential recipients. The Report states that all data contained in

medical documentation, in EHR and in EHR systems should

be considered as ‘‘sensitive personal data’’ whether or not

the data relate to health. This means the records are subject

to the additional data protection rules on the processing of

personal data contained in Article 8 of the Data Protection

Directive 95/46/EC. Article 8(1) of the Directive prohibits the

processing of personal data concerning health in general.

However, Article 8 also contains limited exemptions, al-

though the Document makes clear that the derogations are

‘‘limited, exhaustive and have to be construed in a narrow

fashion’’.

One of the key exemptions for these purposes, under Arti-

cle 8(2) (a), is explicit consent, although in order to be valid,

consent must be a ‘‘freely given, specific and informed indica-

tion of the data subject’s wishes’’ (Article 2(h) of the Directive).

The Working Document makes it clear that in order to satisfy

this exemption, consent must be given freely and voluntarily

‘‘by an individual in possession of all his faculties’’, in the ab-

sence of any coercion. If consent is given merely because the

patient fears he will not be treated unless he gives it, or that

he will be subjected to a lower quality treatment if he with-

holds it, that consent will not be considered as free. The Work-

ing Document makes clear that reliance on consent should

only apply to instances where the individual has a ‘‘genuine

free choice’’, and he should be able to withdraw his consent

at a later date without suffering any disadvantage.

The Article 29 Working Party provides recommendations

on 11 topics where special safeguards within the EHR systems

seem necessary to guarantee data protection rights of patients

and individuals. These include:

� Respecting self determination.

� Identification and authentication of patients and health care

professionals.

� Authorisation for accessing EHR in order to read and write

EHR.

� Use of EHR for other purposes.

� Organisational structure of an EHR system.

� Categories of data stored in EHR and their modes of

presentation.

� International transfer of medical records.

� Data security.

� Transparency.

� Liability issues.

� Control mechanisms for processing data in the EHR.

The Article 29 Working Party sought comments on the

Working Document from health care professionals, persons

and institutions involved in providing medical services and

the general public. The public consultation, which closed on

13 June 2007, elicited contributions from various national gov-

ernments and authorities and also comments from private

individuals and institutions.

Working Document: http://ec.europa.eu/justice_home/fsj/

privacy/docs/wpdocs/2007/wp131_en.pdf.

Contributions: http://ec.europa.eu/justice_home/fsj/priva

cy/workinggroup/consultations/health_records_en.htm#mem

ber_states.

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 2 1 – 2 724

5. Telecoms

5.1. ERG study released on EU Roaming Regulationimplementation

On 30 June 2007 the EU Roaming Regulation (the Regulation)

on international mobile roaming charges came into force.

The Regulation applies to all phone calls made from or re-

ceived by a mobile phone whilst outside the home country

and within the EU. The Regulation is applicable for three years

and seeks to reduce the charges paid by consumers for inter-

national roaming by 60%, benefiting consumers who make

calls in the visited country, to their home country or to an-

other EU Member State. Consumers will also make consider-

able savings when receiving calls. As of 30 September 2007,

prices paid for international roaming when travelling within

the EU are capped by a Euro tariff unless the customer opts

for a special package offered by an operator. The main aspects

of the Regulation are:

� The Euro tariff will not exceed Euro 0.49 for making calls and

Euro 0.24 for receiving calls for the next year (excluding

VAT).

� Prices that mobile network operators charge each other for

roaming calls terminating on their network (wholesale

charges) will also be capped over the next three years, en-

suring that all operators will be in a position to offer lower

retail tariffs.

� Customers will receive an SMS when they are roaming

informing them of the price they are expected to pay for

making and receiving calls, thereby enhancing the transpar-

ency of roaming charges.

� Customers can opt out of Euro tariff.

� National regulators must monitor and supervise compliance

with the Regulation.

On 4 October 2007 the European Regulators Group (ERG) re-

leased a study on the initial implementation of the Regulation.

The study was carried out by 27 national telecom regulators,

united in the ERG, in collaboration with the European Com-

mission. It was found that mobile network operators have

generally complied with the requirements in relation to the

‘‘Euro tariff’’ and, by 30 August, around 200 million EU cus-

tomers had switched to the Euro tariff. A number of operators

throughout Europe have even been offering Euro tariffs below

the maximum allowed levels. According to the study, all mo-

bile network operators confirmed that consumers had been

contacted by the required 30 July deadline regarding the avail-

ability of the Euro tariff. However, there have been some com-

plaints about a lack of transparency of some of the offers made.

A first full European Regulators Group report to the Com-

mission is expected to be released in December 2007. The Eu-

ropean Commission is preparing a report due at the end of

2008 to the European Parliament on the implementation of

the Regulation.

Regulation: http://www.legislation.gov.uk/si/si2007/200719

33.htm.

ERG Study: http://ec.europa.eu/information_society/news

room/cf/itemlongdetail.cfm?item_id¼3670.

5.2. Commission proposal to remove restrictions onradio spectrum for innovative wireless services

On 2 July 2007, the European Commission issued a Communica-

tion setting out the European Union’s objectives on sharing the

radio spectrum that Member States should discuss at the World

Radiocommunication Conference that is scheduled to take place

at the end of the year. One of the main objectives to be discussed

is accommodating the spectrum demands of mobile networks.

On 25 July 2007, the Commission published a Proposal for

a European Parliament and a Council Directive repealing

Council Directive 87/372/EEC (the ‘‘GSM Directive’’) on the fre-

quency bands to be reserved for public pan-European cellular

digital land-based mobile communications in the Commu-

nity. The Proposal aims to increase the choice of services

and technologies available to EU citizens by making it easier

and more lucrative for mobile network operators in Europe

to offer and develop innovative wireless technologies.

Under the current GSM Directive, Members States are able

to reserve the whole 890–915 MHz and 935–960 MHz spectrum

for GSM, preventing the bands from being used by pan-Euro-

pean systems other than GSM. However, in light of new tech-

nologies which enable mobile data and multimedia services,

such as 3G services, the Commission believes that the GSM Di-

rective is now out of date. Once repealed, a new Commission

Decision should be taken, based on Decision 676/2002/EC of

the European Parliament and Council of 7 March 2002 on a reg-

ulatory framework for radio spectrum policy in the European

Community, to allow the co-existence of new technologies

within these frequencies. Opening up the spectrums is envis-

aged to lead to better quality of services and lower costs for the

consumer. Freedom of choice of services to consumers and

spectrum users in the choice of technologies will increase

with the introduction of more pan-European services.

The Commission believes that the Decision will open new

revenue streams to operators, and increase the demand for

equipment such as network infrastructure and new genera-

tions of terminals. It is intended that the measures proposed

would be in place by the end of 2007.

On 12 October 2007, the European Commission published

a speech by the Commissioner for Information Society and

Media, on the Commission’s proposals for improving regula-

tion in the telecoms sector in order to achieve a single market.

In the Commissioner’s speech, mention was made of the need

for reform of the radio spectrum management as an instru-

ment for increasing competition for enhanced innovation,

new services and tangible consumer benefits. The Commis-

sion announced its proposed reforms to the telecoms regula-

tory framework on 13 November 2007.

Communication: http://ec.europa.eu/information_society/

policy/radio_spectrum/docs/ref_docs/com/com_2007_371_en.

pdf.

Proposal: http://ec.europa.eu/information_society/policy/

radio_spectrum/docs/ref_docs/com/com2007_367_en.pdf.

6. Internet

No developments.

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 2 1 – 2 7 25

7. Media

7.1. European Council adopts Common Position onAudiovisual Media Services Directive

On 9 March 2007, following the Parliament’s first reading on 13

December 2006 of the Commission proposal (COM(2005)646),

the Commission adopted a revised Proposal for a modernised

draft Audiovisual Media Services Directive to modernise the

rules governing the audiovisual services industry (AVMS

Directive). The new Directive aims to offer a comprehensive

legal framework that covers all audiovisual media services,

less detailed and more flexible regulation and modernised

rules on TV advertising regarding audiovisual content. The

Directive will amend some of the provisions regulating televi-

sion broadcasting activities in the Television Without Fron-

tiers Directive (89/552/EEC) (TVWF Directive). Audiovisual

media services cover audiovisual media services, whether

scheduled or on-demand, which is intended for reception by,

and which could have a clear impact on, a significant proportion

of the general public. The definition of services covers any

form of economic activity, including that of public service en-

terprises, but does not cover activities which are primarily

non-economic and which are not in competition with televi-

sion broadcasting, such as private websites and services con-

sisting of the provision or distribution of audiovisual content

generated by private users for the purposes of sharing and ex-

change within communities of interest. The Directive will im-

pact on media service providers with editorial responsibility

for the choice of the audiovisual content of the audiovisual

media service and the manner in which it is organised.

Following the Commission’s proposal, on 24 May 2007, an

agreement was reached between the European Parliament

and Council on the new AVMS Directive. Both the European

Parliament and the Council agreed with the aims of the Com-

mission’s revised proposal to modernise the rules governing

the audiovisual services industry.

On 15 October 2007, the European Council adopted a Com-

mon Position on a draft Directive. The Common Position con-

tains some significant changes, relating to structure and

substance, but the basic approach proposed by the Commis-

sion has been retained. The Common Position:

� introduced structural changes to improve the readability and

clarity of the text, to ensure that obligations applicable to all

service providers are grouped separately from those applica-

ble only to on-demand services which are again grouped sep-

arately from those applicable to television broadcasting;

� clarifies the extension to the scope of the Directive proposed

by the Commission;

� supports the basic approach of the Commission’s proposal

that jurisdiction should continue to be determined on the ba-

sis of the establishment of the service provider but that there

should be a mechanism for dealing with cases where a televi-

sion broadcast is directed wholly or mostly towards a Member

State other than where the broadcaster is established;

� establishes that product placement be prohibited for all pro-

grammes produced after the transposition deadline for the

Directive, subject to certain exemptions;

� proposes additional protection for children in regards to ad-

vertising aimed at children whereby Member States and the

Commission are required to encourage codes of conduct re-

garding advertising of ‘junk food’ aimed at children and

stricter rules on interruption of children’s programmes;

� proposed a provision to enable broadcasters’ access to

events of high interest to the public for the purpose of short

news reports;

� created an obligation on Member States to encourage ser-

vice providers to ensure that their services are made acces-

sible to people with a visual or hearing disability.

On 18 October 2007, the Commission issued a Communica-

tion on the Council Common Position stating that the Com-

mon Position meets the aims of the Commission’s initial

and modified proposals.

There will now be a second reading in the European Parlia-

ment, which is likely to take place before the end of 2007 and it

is expected that the Parliament will adopt the text of the

Council Common Position. The AVMS Directive will have to

be implemented by Member States two years after its adop-

tion by the Parliament.

Commission Revised Proposal: http://ec.europa.eu/

avpolicy/docs/reg/modernisation/proposal_2005/avmsd_cons_

amend_0307_en.pdf.

Agreement between the Parliament and Council: http://

www.europa.eu/rapid/pressReleasesAction.do?reference¼IP/

07/706&format¼HTML&aged¼0&language¼EN&guiLanguage

¼en.

Council Common Position: http://www.consilium.europa.

eu/ueDocs/cms_Data/docs/pressData/en/misc/96510.pdf.

8. E-Commerce

8.1. Regulation on the law applicable to non-contractualobligations (Rome II)

On 16 February 2006, the European Commission adopted

a modified proposal for a Regulation on the law applicable to

non-contractual obligations, known as Rome II (COM(2006)

83 final). Rome II primarily seeks to standardise the rules by

which the applicable law in relation to non-contractual obliga-

tions is determined. The practical effect that Rome II is envis-

aged to achieve is that courts within the European Union will

apply the same law to the same international dispute and so

as a consequence reduce the risk of forum shopping. The Eu-

ropean Parliament and the Council of the European Union

reached agreement on the proposed Regulation at a formal

conciliation meeting on 15 May 2007. On 11 July 2007, the

European Parliament published the final Regulation.

Previously, Member States applied the principle that the ap-

plicable law to non-contractual disputes was that of the place

where the harmful act was committed. However, in practice,

the component factors of the case were often spread over sev-

eral countries, and this led to legal uncertainty. Where there is

no agreement between the parties as to the law of their choice,

Rome II prescribes a general rule that the applicable law is that

of the country in which the damage occurs. This general rule is

subject to numerous exclusions and exceptions, these include:

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 2 1 – 2 726

� where the person alleged to be liable and the person sustain-

ing damage are both habitually resident in the same country

at the time the damage occurs, the law of that country shall

apply;

� where it is clear from all the circumstances of the case that

the tort is manifestly more closely connected with a country

other than that indicated by either of the above rules, the

law of that other country shall apply.

The Regulation contains special rules on product liability,

unfair competition, environmental damage, infringements

of intellectual property and industrial action. The Regulation

does not apply to taxation, customs and administrative mat-

ters or to the liability of the State for acts and omissions in

the exercise of State authority. Other types of non-contractual

liability are also excluded, including: (i) trusts; (ii) family law;

(iii) violations of privacy and rights relating to personality;

and (iv) liability arising out of nuclear damage.

The main provisions of the Regulation will apply from 11

January 2009. The Regulation will apply only to events giving

rise to damage which occurs after its entry into force.

Modified Commission proposal: http://ec.europa.eu/

justice_home/doc_centre/civil/doc/com_2006_83_en.pdf.

Communication: http://eur-lex.europa.eu/LexUriServ/site/

en/com/2006/com2006_0566en01.pdf.

Regulation: http://eur-lex.europa.eu/LexUriServ/site/en/oj/

2007/l_199/l_19920070731en00400049.pdf.

9. Results of public consultation on EuropeanCommission review of Restriction on HazardousSubstances Directive

On 26 March 2007 the European Commission launched a public

consultation relating to the review of Directive 2002/95/EC on

the restriction of the use of certain hazardous substances in

electrical and electronic equipment (‘‘RoHS’’). RoHS came

into force on 1 July 2006 and places bans in the EU market

on new electrical and electronic equipment containing exces-

sive levels of lead, cadmium, mercury, hexavalent chromium,

polybrominated biphenyl and polybrominated diphenyl ether

flame retardants. RoHS’s aims are to minimise environmental

waste and contribute to the protection of human health by

harmonising the laws of the Member States with regards to

hazardous substances in electrical and electronic equipment.

The consultation is part of an ongoing review of RoHS by the

Commission. The Commission wants to increase the environ-

mental benefit, remove the implementation and enforcement

problems encountered to date and make RoHS cost effective.

The Commission invited contributors to address topics

which should be considered for review. The Commission

identified certain topics for review, including: the possible in-

clusion of two additional categories of equipment – category 8

(medical devices) and category 9 (monitoring and control

equipment) of the Waste Electrical and Electronic Equipment

Directive 2002/96/EC are currently excluded from the scope

of the RoHS Directive. It is the intention of the Commission

to bring these within the scope of the Directive if scientific

evidence can be produced of their hazardous nature.

The Commission has already launched a study into the

topic, the results of which will form part of a reformed pro-

posal and has requested that further studies be conducted

such that the review may lead to the revision of the list of re-

stricted substances. Article 6 of the RoHS places an obligation

on the Commission to regularly study the need to adapt the

list of banned substances on the basis of scientific facts. There

are no specific substances under review but topics to be

addressed in the review include:

� the produce groups to be included;

� the substances to be included;

� technical changes to be made to the scope of the RoHS

Directive;

� a review of definitions;

� how to facilitate the implementation.

The consultation was open for written submissions until

22 May 2007. Contributions from 49 different sources were re-

ceived. Based on the comments received, the inclusion of

medical devices and monitoring and control instruments in

the scope of the Directive was broadly supported. On the mat-

ter of restricted substances, industry stakeholders did not see

any need to extend the ban to other substances whereas NGOs

highlighted the potential negative effects of hazardous sub-

stances currently not being regulated by the Directive. The is-

sue of enforcement received the most number of comments.

Integration of a conformity assessment procedure, reinforce-

ment of market surveillance and administrative cooperation

and affixing a dedicated, voluntary ‘‘RoHS marking’’ were

some recommendations to improve the system. With regard

to exemptions, most stakeholders felt that the procedure is

lengthy and resource demanding. In February 2008, prelimi-

nary results of the review are expected and any legislative pro-

posal for the revision of RoHS, if considered necessary, is not

expected until 2008.

RoHS Directive: http://www.rohs.gov.uk/Docs/Links/RoHS%20

directive.pdf.

Consultation: http://ec.europa.eu/environment/waste/weee/

pdf/review_2002_95_ec_directive.pdf.

Consultation response: http://ec.europa.eu/environment/

waste/weee/pdf/consultation_comments.pdf.

10. European Regulators Group Opinion onregulatory principles of next generationnetworks

On 4 May 2007 the European Regulators Group (ERG) launched

a public consultation on access to next generation networks

(NGNs) in order to produce an ‘‘ERG Common Position’’ in con-

nection with proposals on the Review of the Electronic

Communication Network and Services (ECNS) Regulatory

Framework. The consultation explicitly focused on wireless

Next Generation Access (NGA) implementation issues and re-

lated regulatory implications, as current upgrades of copper

and fibre access networks which are being carried out in

a number of Member States have recently become a key chal-

lenge for regulatory authorities. The consultation specifically

c o m p u t e r l a w & s e c u r i t y r e p o r t 2 4 ( 2 0 0 8 ) 2 1 – 2 7 27

focused on the definitions of Market 11 (wholesale unbundled

access to metallic loops and sub-loops) and Market 12 (broad-

band access services) as defined in the European Commis-

sion’s Framework Directive 2002/21/EC.

On 3 October 2007 the ERG released an Opinion on the Reg-

ulatory Principles of Next Generation Access (the Opinion).

The Opinion is based on the NGA consultation document

that was opened for public consultation from 4 May to 11

June 2007 and the comments received during that period.

The ERG also released a Supplementary Document to the

Opinion that includes the consultation report, country case

studies, summaries of business case studies and results of

the fact finding exercise. Overall, the ERG concludes that the

regulatory approach based on the existing ECNS Regulatory

Framework is fundamentally sound and, subject to adjust-

ments, the principles remain suitable and allow national reg-

ulatory authorities to deal with the regulatory challenges

posed by the roll-out of NGA. With respect to the economics

of NGA, the Opinion states that NGA networks are more

likely to reinforce rather than fundamentally change the

economics of local access networks and provide the same com-

petition challenges to regulators as current generation wireless

access networks. It is likely that the most effective strategy

forNGAdeploymentwillutiliseamixtureoftechnologies to de-

liver these services depending on specific local characteris-

tics such as: copper local loop and sub-loop lengths;

customer density and dispersion; presence of multi-dwelling

units; and quality and topology of existing network

infrastructure.

The ERG noted that the economics of NGA networks may

vary across different technologies and different geographies.

Thus, the one-size-fits-all approach may not reflect the spe-

cific regulatory needs of a country or even regions within

that country.

Opinion: http://erg.eu.int/doc/publications/erg07_16rev2_

opinion_on_nga.pdf.

Supplementary Document: http://erg.eu.int/doc/

publications/erg_07_16rev2b_nga_opinion_suppl_doc.pdf.

For further information on any of the above, please contact Harry

Small (harry.small@bakernet.com) of the IT/C Group of the London

office of Baker & McKenzie (Tel.: þ44 20 7919 1000). Mr Small

was assisted in the preparation of this article by Deena Hazini,

Michael Dizon and David Halliday.