Mr. Eamonn Confrey:

I thank the Chair for inviting my colleagues and I to assist the committee in the pre-legislative scrutiny of the forthcoming communications regulation (enforcement) Bill. I am principal officer of the telecommunications policy and regulation division in the Department of the Environment, Climate and Communications. I am joined by my colleagues, Ms Megan Skelly and Mr. Mervyn Hickey, along with Mr. Joseph Stephens, head of engagement at the NCSC.

In my role as principal officer, I lead for the division with respect to the communications regulation (enforcement) Bill and the transposition of the European electronic communications code. My colleagues, Ms Megan Skelly and Mr. Mervyn Hickey, have led on the policy and development of the Bill since its inception in spring 2021 and on the transposition of the code more broadly. Mr. Joseph Stephens leads on the policy and development of the provisions of the Bill which concern network security, aligning with his broader role as part of the NCSC.

The communications regulation (enforcement) Bill, the general scheme of which was approved by the Government on 14 December 2021, aims to achieve five objectives. The first and primary aim of the Bill is to transpose the enforcement provisions of the European electronic communications code, hereafter referred to as “the code”. The code is a recast directive that will consolidate the framework directive, the authorisation directive, the access directive and the universal services directive, transposed into Irish legislation via the European Communities Act 1972. The code provides for a European framework for the regulation of the electronic communications sector. Key to its success will be its effective enforcement. Enforcement of the previous directives was provided for in secondary legislation. It had been the intention of the Department to replicate this approach to transposition for the code. However, in spring 2021, advice was received by the Department from the Office of the Attorney General that this was not permissible and that primary legislation would be required to transpose the enforcement provisions of the code and to designate ComReg as the body responsible for the code’s enforcement. This Bill will address the issues raised in the Attorney General’s advice.

The second aim to be achieved by the Bill is the updating and enhancement of ComReg’s enforcement powers. Providing ComReg with updated enforcement powers is a stated policy ambition of the Government and was included as a commitment in the 2020 programme for Government. The Bill will propose a new civil sanctioning regime for ComReg that will include the ability to find non-compliance and impose a range of penalties, including administrative financial sanctions up to a maximum of €5 million or 10% of annual turnover, compensation, refunds and the suspension and withdrawal of authorisations or rights of use, subject to court confirmation, as appropriate.

ComReg will also be permitted to enter into settlements and accept legally binding commitments from operators in lieu of progressing to adjudication.Providing ComReg with enhanced enforcement powers, particularly the power to find non-compliance and impose administrative financial sanctions, would bring the regulator further in line with many of its colleague regulators in the State. The Central Bank, the Data Protection Commissioner and the Commission for the Regulation of Utilities are among the sectoral regulators that have administrative financial sanctioning powers. The Online Safety and Media Regulation Bill and the Competition (Amendment) Bill, both currently progressing through the Oireachtas, will give similar powers to the new media commission and the Competition and Consumer Protection Commission, respectively. In 2018, the Law Reform Commission published its report on regulatory powers and corporate offences, in which it recommended that a suite of core powers be assigned to economic regulators such as ComReg, including the power to impose administrative financial sanctions. ComReg has also publicly advocated for its powers to be enhanced in this manner. At a European level, in the European Commission’s annual Digital Economy and Society Index reports of 2018, 2019 and 2020, reference was made to ComReg’s enforcement powers, most notably in the 2018 report, which stated:

ComReg is not vested with powers to impose fines, which is the courts’ prerogative, and ComReg is thus out of step with other NRAs with regard to timely and effective intervention.

The third aim of the Bill is the transposition of security provisions of the code and the provision of a legislative basis for the electronic communications security measures, ECSMs. These articles place general obligations on providers of electronic communications networks and services to take appropriate and proportionate security measures to manage the risks posed to their networks and services. Articles 40 and 41 also place obligations on providers to report significant security incidents to ComReg. The Bill proposes to allow the Minister to make regulations specifying the types of security measures that providers shall take, thus providing a statutory basis for ECSMs, which are a detailed set of technical security measures produced by the NCSC in consultation with ComReg and industry to secure the State’s electronic communications infrastructure. Finally, the security provisions provide additional supervisory and enforcement powers to ComReg to ensure compliance with the security provisions.

The fourth aim of the Bill is to provide for a limited number of new consumer protection provisions for the sector. The proposed alternative dispute resolution procedure, the publication of quality-of-service information and compensation for delays or abuses in the porting and switching process and missed installation appointments are all mandatory obligations in the code and must be implemented. Only two obligations are not required by the code and these are the ability to set minimum quality-of-service standards that operators must meet and the establishment of a customer charter to set out the standards a customer can expect from the service provider and other specified information. These provisions were developed in close co-operation with ComReg and seek to address identified customer service issues that routinely result in low customer satisfaction in the sector.

The fifth and final aim of the Bill is the updating of the Communications Regulation Act 2002, to align that Act with the code and make necessary amendments to ComReg’s current functions and powers, improving its functionality and complementing the new proposed enforcement regime. These will include,inter alia, a broadened information-gathering power, ability to reuse already gathered information, ability to better assist the Minister with policymaking and improvements to the notification, privilege and overcharging provisions.

By way of further background context to this Bill, two issues need to be mentioned: the infringement proceedings to which Ireland is currently subject for failure to transpose the code within the specified time; and the ongoing engagement with the Office of the Attorney General. In respect of the infringement proceedings, the code was required to be transposed by 21 December 2020. This was a complex project given the scale of the directive and Ireland, along with 24 other member states, failed to meet the deadline. Infringement proceedings commenced against Ireland with the issuing of a letter of formal notice on 2 February 2021. This was responded to on 7 April. A reasoned opinion was issued on 23 September and a response to this was issued yesterday. The reasoned opinion is the final pre-litigation stage in an infringement process, after which the Commission may seek to commence the litigation phase of the process, which can see member states subject to considerable fines and lump-sum penalties. Mitigating against further delay to the transposition is vital if substantial fines are to be avoided.

In respect of the ongoing engagement with the Office of the Attorney General, work is under way to progress the drafting of the Bill in a timely manner. We have been advised that certain legal constraints exist when developing an enforcement regime, given Ireland’s constitutional jurisprudence and, in particular, the recent Supreme Court judgment in the case of Zalewski v. Adjudication Officer & Ors. This results in limited scope for policy discretion in how enforcement regimes are developed. We have been advised that this will result in the Bill as published being further aligned with the forthcoming Competition (Amendment) Bill than is provided for in the general scheme approved by the Government. The extent of the divergence between the published Bill and the general scheme provided is still the subject of discussions between the Department and the Attorney General’s office. I thank the committee for its invitation to attend this afternoon and look forward to assisting in its pre-legislative scrutiny of this Bill.