Moves to reform EU telecoms market

The summer months can be a quiet period for the European institutions, but the summer lull has not stopped some interesting developments from emerging.

Commissioner Neelie Kroes is continuing to reform the single telecommunications market. In a speech on July 9th she committed to turning the current "fragmented reality into a true competitive single market" and promised a new package of proposals in September which it is hoped will make switching between operators easier, bring international roaming charges to an end and guarantee internet neutrality in the EU.

A recent report has identified a 774 per cent differential in domestic mobile call costs between Lithuania, the cheapest country, and Netherlands, the most expensive. In the commission’s view, these price differences cannot be explained by differences in quality, the cost of providing the service, or by consumer purchasing power.

Also in July, the EU Commission approved an amendment to the Bank of Ireland restructuring plan on the basis that changes in the market rendered the proposed amendments compatible with EU State aid rules.

Package travel
The key amendment is that the bank will no longer be required to divest the New Ireland Assurance Company as, in the commission's view, such a divestment would negatively affect the bank's capital and capacity to return to profitability.

In addition, the commission considered that the recent sale of Irish Life had negatively affected the number of potential buyers for New Ireland, thus increasing the risk of the bank being forced to sell at a loss.

Bank of Ireland has agreed to a number of alternative measures which the commission considers will adequately limit potential distortions of competition in the UK and Ireland, including undertaking to exit from certain corporate banking businesses, exit from the intermediary mortgage market in Ireland and refrain from the distribution of dividends until certain conditions are discharged.

The commission marked the holiday season with reform proposals for the directive on package travel which has provided protection to consumers purchasing package holidays since 1990. The current directive provides protection for customers booking pre-arranged package holidays – ie, holidays involving a combination of flights, hotels or car rentals. The reform seeks to address consumers’ increased use of internet bookings and self-arranged holidays and to expand the situations covered by the protections in the directive.

The proposals are partially in response to a survey which has revealed that 67 per cent of EU citizens mistakenly believed their purchases were protected by the directive. They would introduce greater protection for purchasers of traditional package holidays as well as new protections for buyers of other customised travel arrangements including internet purchases combining flights and car hire.

Finally, the return of the Court of Justice from vacation in September saw two interesting advocate general opinions in respect of surrogacy. Z v A Government Department and the Board of Management of a Community School is a case referred to the Court of Justice by the Irish Equality Tribunal in which the court has been requested to provide guidance as to whether a refusal to provide paid leave of absence to a woman whose genetic child has been born through surrogacy amounts to a breach of EU law. In his opinion advocate general Nils Wahl considered that such a refusal did not amount to discrimination on grounds of either gender or disability under EU law.

By contrast in CD v ST, a case in which a UK citizen challenged her employer's refusal to grant her maternity leave following the birth of a child through surrogacy on the basis of the EU's 1992 directive on pregnant workers rather than on the basis of anti-discrimination legislation, advocate general Juliane Kokott concluded that both the mother and her female partner were entitled to maternity leave to be divided between them. Both cases will now pass for final consideration by the court .

Donogh Hardiman is chairman and Joanne Finn is treasurer of the Irish Society for European Law