A Q&A guide to communications regulation and outsourcing law in France.
The Q&A gives a high level overview of communications law, including authorisation and licensing, universal service obligations, spectrum use, access and interconnection, data protection and security, price regulation, subscriber management, and outsourcing and telecommunications.
This Q&A discusses the situation in this jurisdiction as at the law stated date. It has not been updated to discuss the most recent developments, including the requirement of EU member states to implement the European Electronic Communications Code (EU) 2018/1972 by 21 December 2020.
The telecommunications market
1. Give a brief overview of the structure of the telecommunications market in your jurisdiction. Briefly set out any major recent developments, such as mergers and acquisitions, restructurings and insolvencies.
Formerly structured around the incumbent operator France Telecom, now called Orange, the telecommunication market revolves around five major operators:
The market is divided into several categories:
Four licensed mobile operators (Orange, SFR, Bouygues Telecom and Free).
Over 30 Mobile Virtual Network Operators (MVNO).
The rest of the telecommunication operators, including land based operators (over 1700 operators).
In 2010, Free became the fourth operator to obtain a licence for mobile services. It launched its first low cost offer in 2012, which boosted the competition between mobile operators and radically changed the face of the retail mobile telecommunication market.
In November 2014, French operator Numericable's mother company, Altice, acquired SFR, one of the oldest French telecommunication operators and beneficiary of a mobile operator licence. Altice also purchased MVNO Virgin Mobile France in December 2014.
Bouygues Telecom rejected both Iliad's (Free's mother company) informal purchase offer for EUR4 billion or EUR5 billion in 2014, and Altice's purchase offer of EUR10 billion in June 2015. In 2016, Orange tried to purchase Bouygues Telecom. After advanced negotiations, the deal was cancelled in April 2016.
Restrictions on foreign ownership
2. Are there any restrictions on foreign companies entering the telecommunications market in your jurisdiction?
Foreign companies can become operators of telecommunications since the performance of this activity is only subject to registration with the regulatory authority (Autorité de Régulation des Communications Électroniques et des Postes) (ARCEP) and the law does not include any restriction related to foreign ownership.
However, the acquisition or control by a company whose headquarters are not located in the EU (or in a country of the EEA that has concluded with France an international convention on assistance regarding the fight against fraud and tax evasion) of a company with its registered office in France and whose activity consists of providing equipment, products or services for ensuring the integrity, security and continuity of the operation of networks or electronic communications services, requires the authorisation of the Economy Minister.
Legislation and regulatory authorities
3. Give a brief overview of the regulatory framework for telecommunications in your jurisdiction. Which authorities regulate telecommunications services in your jurisdiction? Is there a separate regulator for competition law issues in this sector?
The telecommunication regulatory framework includes various laws and decrees that have been codified in the French Postal Services and Electronic Communications Code (FPSECC). In addition, the Regulation (EU) 2015/2120 laying down measures concerning open internet access (Open Internet Access Regulation) sets out specific rules regarding the open internet.
Specific regulations can also be found in other codes, such as the French Consumer Code and the French Homeland Security Code.
The main authority in the French telecommunication sector is the Autorité de Régulation des Communications Électroniques et des Postes (ARCEP). ARCEP is the administrative authority in charge of regulating electronic communications.
In addition to ARCEP, the Minister in charge of Electronic Communications is granted special powers regarding the regulation of telecommunication in conjunction with ARCEP.
The Conseil Supérieur de l'Audiovisuel (CSA) is the administrative authority in charge of audio-visual communications, which encompass radio and television. Therefore, the CSA has exclusive competence for frequencies used for audio-visual communications.
The Agence Nationale des Fréquences (ANFR) is the administrative body that represents France in international reunions relating to the global allocation of frequencies. ANFR also updates the national table of allocation of frequencies and any other documents on the use of frequencies.
There is no specific competition law regulator for the telecommunication sector. All competition issues are handled by the Competition Authority (l'Autorité de la concurrence).
Authorisation and licences
4. What notification, authorisation and licences are required to provide telecommunications services? What is the licence application procedure and fee?
Telecommunication operators are defined as persons that wish to install and operate electronic communication networks open to the public or offer electronic communications services to the public (telecommunication operator activities). For activities that are not subject to a licence, telecommunication operators only have to be registered with Autorité de Régulation des Communications Électroniques et des Postes (ARCEP), by notifying ARCEP before starting such activities. Once notified, ARCEP delivers a receipt to the operator within three weeks.
Included in the definition of electronic communication networks are any installation or group of installations for the transfer or broadcast of electronic communication, as well as any other mean of electronic communication transmission. This definition is broad enough to encompass satellite networks, terrestrial networks and systems using the electric network (in so far as they transmit electronic communications).
The following activities fall outside the scope of telecommunication operator activities and, therefore, do not require registration as telecommunication operators:
The operation or installation of independent networks. Independent networks are defined as networks reserved to the use of a person or group of persons for communications within that group.
The operation or installation of internal networks that are open to the public. Internal networks open to the public are defined as networks established on the same property, without using the public domain or another property (that is, hotels and malls).
Internet service providers, providing notably hosting services or website creation services.
Providers installing networks but not operating them.
Providers of inactive infrastructure (dark fibre).
Market participants with a purely commercial role (that is distribution networks).
In a law dated 6 August 2015, ARCEP has been granted the power to register on its own initiative an entity whose activity falls within the scope of telecommunication operator activities but that did not notify ARCEP.
The use of frequencies
Frequencies subject to authorisation. The use of frequencies can fall in the scope of telecommunication operator activities. However, the use of frequencies is not subject to a notification, but instead to ARCEP's authorisation. In fact, frequencies are considered a public resource, owned by the state. Therefore, the private use of frequencies is a private use of public resources and requires the prior authorisation of ARCEP.
These authorisations are granted by ARCEP under the form of an exclusive licence to use a specific range of frequencies, subject to the conditions and restrictions set out in the licence.
Licences must be granted on an objective, transparent and non-discriminatory basis. ARCEP can only reject a licence request for one of the following reasons:
Public order, national security, public security.
Improper use of frequencies.
Technical or financial incapacity to face the obligations resulting from this activity in the long term.
Because the issuer of the request was sanctioned by ARCEP for a breach of its obligation or criminally sentenced under certain of the offences defined in the French Postal Services and Electronic Communications Code (FPSECC) (notably for operating telecommunication operator activities without being registered with ARCEP).
There are two major procedures for the grant of licences:
The first one is used when there is no shortage of the resource and ARCEP can grant licences on a first-come first-served basis. For example, this procedure is applied to licences for microwaves used for links between infrastructures.
The second procedure is used when the resource is scarce and ARCEP grants the licences through a request for proposal or through an auction. Due to the rarity of the frequencies usable for telecommunication purposes, ARCEP mainly uses the request for proposal or auction procedure. For example, all four mobile operators obtained their licence for a third generation network through a request for proposal, and obtained their 4G licence through an auction procedure.
ARCEP can now also issue licences for the use of frequencies for experimental purposes. In addition, for a maximum duration of two years, these licences can benefit from limited obligations under the telecommunication regulatory framework compared to regular licences issued under the two main procedures
Licence fees are either set by decree or by ARCEP.
Frequencies not subject to authorisation. Exceptionally, the use of frequencies that are not specifically allocated is not subject to ARCEP's authorisation. These frequencies, called "free frequencies", are only subject to the registration with ARCEP through the prior notification procedure if the activity falls within the scope of telecommunication operator activities. If free frequencies are used for an activity that does not fall in the scope of telecommunication operator activities, then no registration is required.
Free frequencies are used on short distances, with a wide range of applications (such as wifi, bluetooth, medical implants or intelligent transportation systems).
While the use of free frequencies does not require an authorisation, it still requires compliance with the technical conditions of use defined by ARCEP.
The fixed structured fee for telecommunication operators (EUR20,000 or an amount based on turnover) has been abolished by the French Finance Law of 2016 (No 2015-1785, dated 29 December 2015).
Since then, operators only have to pay fees depending on the resources they effectively use, such as for the:
Use of frequencies.
Attribution of numbers.
Use of public domain.
In addition to these fees, French telecommunication operators must also comply with French taxes. There is a specific tax to the activity of telecommunication operators, set at 1.3% of the amount (excluding VAT) of the subscriptions and other sums above EUR5 million that are obtained from users as remuneration for providing electronic communication services.
5. How long does a telecommunications licence typically last and what are the usual conditions attached to it? Can conditions be varied? Are licences available for public inspection?
Licensed telecommunication operators must comply with a set of general rules, which include obligations to periodically report to ARCEP, universal directory obligations, and obligations relating to number blocking, security, confidentiality and neutrality of communications, legal interception and data retention. Licenced operators do not need to renew their licence, but must comply with periodic requirements, such as paying the necessary fees, taxes and reporting to ARCEP.
In addition, licensed telecommunication operators must also comply with the specific terms of the licence. Licences' conditions and duration are not set in the regulation and Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) discretionarily defines the terms of the licence.
In the licence, ARCEP determines the following conditions:
The nature and technical features of the equipment, networks and technologies.
The duration of the authorisation, which cannot exceed 20 years.
The conditions for renewal and reasons to refuse the renewal.
The fee due by the operator, if such fee was not determined in a decree.
The technical and operational conditions necessary to avoid detrimental interferences and to avoid the public exposure to electromagnetic fields.
The obligations resulting from international agreements.
The criteria for the effective use of the allocated frequencies.
If applicable, the specific obligations relative to experimental use of frequencies.
The commitments made by the operator during the procedure.
ARCEP's decisions granting licences are published on ARCEP's website and in the French Official Journal.
Licences can always be freely revoked by the French administration, or for cause, as a sanction by ARCEP.
Penalties for non-compliance
6. What are the consequences of non-compliance with the telecommunications regulations?
Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) can issue warnings and penalties for non-compliance with the various regulations applicable to telecommunications or with the terms of a licence.
The applicable telecommunication regulations also contain several criminal offences in case of non compliance, especially:
Establishing a network open to the public or offering electronic communication services to the public without having performed the prior notification to ARCEP is subject to a sentence of one year of imprisonment and a EUR75,000 fine, which can be increased up to EUR375,000 for legal entities.
Using frequencies without the required authorisation is subject to a sentence of six months of imprisonment and a EUR30,000 fine, which can be increased up to EUR150,000 for legal entities.
7. Can decisions of the regulators be appealed and on what grounds?
Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) decisions can be challenged before administrative tribunals and courts. Appeals are grounded on the illegality of ARCEP's decision, for example when ARCEP did not have the power or exceeded its powers in issuing the decision.
These appeals before the administrative jurisdiction must be filed within two months of the notification or publication of the disputed decision. The relevant jurisdiction is the French Administrative Supreme Court for collegial decisions, and the local administrative tribunal for decisions issued by ARCEP's president or general director.
As an exception to the administrative jurisdiction's competence, decisions given in the case of dispute between operators can be appealed before the court of appeal of the judicial jurisdiction.
Universal service obligations
8. Is the incumbent provider or other large providers with significant market power subject to specific regulations? Do universal service obligations apply? Are there provisions for the structural separation of a network?
Incumbent provider and providers with significant market power
Any provider with significant market power (PSMP) can be requested to comply with at least one of the following obligations:
To disclose information concerning interconnection and access to the network.
To provide interconnection or access services with non-discriminatory conditions.
To accept reasonable requests of access to parts of the network.
Not to offer excessive pricing conditions, but to offer pricing conditions reflecting the actual costs.
To use a separate accounting for certain activities such as interconnection or access.
Under exceptional circumstances, any measures necessary to attenuate or suppress any obstacle to the development of effective competition. These measures must be validated by the European Commission.
Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) has the following tasks in relation to PSMPs:
Analysing the relevant markets.
Determining the relevant PSMPs.
Setting PSMP obligation(s) to the designated PSMPs.
The incumbent provider, Orange, having notably a monopoly on the local loop, is therefore considered as a PSMP on several markets, and therefore is subject to this specific regulation on the relevant markets.
PSMPs are also required to notify the ARCEP of any project related to the sale of their equipment and installations of local access.
Universal service obligations encompass:
The connection to a fixed network that is open to the public.
The offer of an information service and an electronic or printed telephone directory for mobile and fixed users.
Particular measures for handicapped users to ensure their access to the universal services defined under the first two bullet points above.
A law dated 6 August 2015 supressed the fourth component of the universal service, which related to access to public phone booths or other public access to a telephone service.
Following a request for proposal for each component, one or more operators are chosen by the Minister of Electronic Communications to perform universal service obligations. If no proposal is made, the Minister then proceeds to designate operators.
All telecom operators must financially contribute to the provision of the universal service. This contribution is based on the annual turnover of the operator's electronic communication activity, which must be communicated to ARCEP annually.
Currently, France has not yet implemented a policy of structural separation and Orange is still the owner of the local loop. However, ARCEP now has the power to impose the structural separation of any vertically integrated PSMP, subject to the authorisation of the European Commission.
Nonetheless, as ARCEP and the government's position have been against imposing a structural separation, it seems unlikely that this measure will be implemented in the near future. Indeed, ARCEP's president declared in 2012 that the unbundling of the local loop, as operated in France, was retrospectively the best operating model.
However, ARCEP's president recently declared that ARCEP is concerned about the B2B optical fibre sector, for which ARCEP considers that the competition is unsatisfactory. Even if separation is not contemplated at this stage, ARCEP's president mentioned that in the event where the situation would not evolve, ARCEP would have to contemplate its options, including separation.
9. What general conditions apply to telecommunications services? Which other regulations must be complied with?
Any telecommunication operator must comply with rules relating to (Article 33-1, French Postal Services and Electronic Communications Code):
Conditions of continuity, quality, availability, security and integrity of the network and service.
Conditions of confidentiality and neutrality relating to the message communicated and the information related to the communication.
The standards and specifications of the network and service.
Prescriptions required for health and environment protection, as well as land use.
Prescriptions required by public order, homeland security, and public security.
The free transfer of emergency calls and the transfer of communication from public authorities related to imminent dangers.
Financing the universal service.
The communication of information for the creation of directories.
Interconnection and access.
Conditions to ensure the non discrimination or equality of treatment of foreign operators.
Conditions to ensure interoperability of services.
Obligations enabling ARCEP to control operators.
The information of users (consumers and professionals).
The access for handicapped users to affordable services.
10. Which authorities allocate spectrum use and how is it managed?
The allocation and use of spectrum is divided between several authorities:
The Prime Minister.
Autorité de Régulation des Communications Électroniques et des Postes (ARCEP).
Conseil Supérieur de l'Audiovisuel (CSA).
Agence Nationale des Fréquences (ANFR).
ANFR is the administrative body that represents France in international reunions relating to the global allocation of frequencies, and that updates the national table of allocation of frequencies and any other documents on the use of frequencies.
The Prime Minister determines, after consulting ARCEP and CSA, the frequencies that are allocated to the administration and those that are allocated to ARCEP and CSA.
Besides the various administrative bodies that are allocated with frequencies (such as the Ministry of Defence, the Ministry of Home Affairs and the Civil Aviation), the authorities that can allocate frequencies are ARCEP and CSA. ARCEP can allocate frequencies for electronic communication services, while CSA can allocate frequencies for audio-visual communication services (mainly television and radio services).
11. Can spectrum use be traded or sublicensed?
Operators benefitting from a licence to use frequencies can assign totally or partially the rights granted under the licence to a third party, under certain circumstances:
The range of frequencies that can be assigned is limited and determined by the Minister of Electronic Communications.
All assignments of frequencies must be notified to Autorité de Régulation des Communications Électroniques et des Postes (ARCEP). If the right to use the frequencies was only subject to a prior notification, ARCEP can oppose any assignment but does not need to authorise the assignment. However, if the right over the frequencies assigned was obtained under an ARCEP licence, then the assignment must be notified and approved by ARCEP.
Any telecommunication operator can offer to a third party, through a private contract between the parties, the means, equipment, software or services to enable the third party to provide electronic communication services. There is no required notification of these contracts, but ARCEP can request it.
Therefore, telecommunication operators having obtained a licence for the use of frequencies can sublicense the right to Mobile Virtual Network Operators (MVNOs).
In addition, ARCEP can require that providers with significant market power (PSMPs) have an available public offer for these sublicences and can be required to accept reasonable requests for sublicences.
Infrastructure and network management
12. Do communications providers have any powers to place their equipment on third party sites?
Telecommunication operators benefit from servitudes over private properties enabling them to install or operate network equipment:
On and in parts of a collective building (defined as a property having at least two dwellings) or a housing development.
On the land and underground of undeveloped properties.
On top of private properties, if the provider only uses the equipment of a third party benefitting from a servitude without compromising, if this is the case, the public service mission conferred to this third party.
To use this servitude, telecommunications operators must notify the property owners and obtain the mayor's authorisation. However, operators do not have to pay fees to the owner of the property for the use of the servitude.
Telecommunication operators also have a right of access to public properties, in as much as this occupation of public domain is not incompatible with the domain's destination and capacity. The access to the public domain may be subject to the payment of reasonable fees proportionated to the use of the site and must be granted in a contract under transparent and non-discriminatory conditions.
Access and interconnection
13. Does access to infrastructure and a network have to be given to other providers?
A 29 April 2016 Ordinance, transposing the Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks into French law, created a right of access to infrastructures. Before this ordinance, only providers with significant market power (PSMPs) could be required to offer access to their infrastructure or service by Autorité de Régulation des Communications Électroniques et des Postes (ARCEP).
Under Article L. 34-8-2-1 of the French Postal Services and Electronic Communications Code (FPSECC), public or private entities that make available or operate certain types of infrastructure must accept reasonable requests for access to their infrastructure from the managers of high speed networks open to the public. Infrastructures also include infrastructures enabling the operation of an electronic communication network that is established or used for the provision of electronic communication services to the public.
Access must be granted, even if the requesting entity is established in another member state of the EU, and it must be provided under equitable and reasonable modalities and conditions, including pricing conditions. The manager of the infrastructure must answer the request for access within two months of receiving the request.
Any refusal of access must be motivated by objective, transparent and proportionate criteria. If access is refused or the parties fail to agree on the terms, the matter can be referred to ARCEP.
Under Article L. 34-8-3 of the FPSECC, any operator, that has established in a building or is operating a line of electronic communication by optical cable to service end users, must accept reasonable requests for access from operators for offering electronic communication services to them. Access must be granted under transparent and non-discriminatory conditions, and its refusal must be motivated. For disputes regarding access requests, the parties can refer the issue to ARCEP.
14. Is the interconnection of networks required? Are interconnection prices regulated and how are interconnection disputes resolved?
Entities operating a network open to the public must accept interconnection requests.
An interconnection request can only be rejected by an operator if it is justified by the needs of the operator and the capacity of the requesting entity to satisfy this request. Any refusal must be motivated.
Operators with a monopoly on access to end users can be required to accept interconnection and access requests.
The pricing conditions for interconnection or access must be transparent and objective. Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) can also request the justification of these pricing conditions.
Where an operator rejects a party's request for access to the operator's infrastructure, network or for interconnection, the party can ask ARCEP to arbitrate this dispute. ARCEP can then impose, in an objective, transparent, non-discriminatory and proportionate manner, the access or interconnection.
Data protection and security
15. What data protection or consumer privacy regulations apply to the telecommunications sector, including both generally applicable and sector-specific laws? Are communications providers required to retain communications data? If yes, which data and for how long? What are the penalties for breach of these regulations?
The general French Data Protection Regulation (based on the updated 6 January 1978 law No. 78-17) applies to the telecommunication sector. This framework will be modified by the Regulation (EU) 679/2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). In addition to this framework, the French Postal Services and Electronic Communications Code (FPSECC) contains specific provisions related to data processing by telecommunication operators.
According to the FPSECC, telecommunication operators and persons whose professional activity is the offer of internet access must, subject to exceptions, delete or anonymise any traffic data.
The first exception is the duty to retain data for one year, in case the disclosure of the data is required by a juridical or administrative order, for the needs of investigating crimes or intellectual property infringements. Under this exception, the following data must be retained:
Information allowing the identification of the user.
Data on the communication equipment used.
The technical details, the date, time and duration of each communication.
Data relating to complementary services requested or used.
Data enabling the identification of the recipient(s) of the communication.
Under the second exception, the deletion or anonymisation of certain type of data can be postponed, at the operator's discretion, for purposes of:
Invoicing and payment of services. This is for up to one year. The data concerned is the:
data on the communication equipment used;
technical details, date, time and duration of each communication; and
data relating to complementary services requested or used.
Ensuring network and equipment security. This is for up to three months. The data concerned is the:
data enabling the identification of the origin of the communication;
technical details, date, time and duration of each communication;
data enabling the identification of the recipient(s) of the communication; and
data relating to complementary services requested or used.
Also, localisation data can only be processed during the communication for the sole purpose of its transmission and retained after the end of the communication if the user consented after being duly informed of the:
Type of data.
Duration of the processing.
Potential transfer to third parties.
Generally, all data that can or must be retained must only relate to the identification of the users, the technical details and the localisation of the call. Telecommunication operators cannot in any case retain data on the content of the communication.
Finally, the French Data Protection Regulation also confers a special duty of notification to the French Data Protection Authority (CNIL) by telecommunication operators in the case of a breach of data. Here, CNIL is notified within 24 hours, with a complementary notification within 72 hours of the breach if further investigations were required. If the violation of data is likely to breach personal data security or the privacy of a subscriber or any other individual, the operator must notify the parties affected. This notification to the user is not mandatory, however, if the operator had taken appropriate measures to make this data undecipherable to unauthorised individuals. A similar notification process will be required under the General Data Protection Regulation. The General Data Protection Regulation provides for a similar notification requirement that will however be applicable to any data controller.
There are several criminal offences related to data protection, in particular:
The processing of personal data without having completed the prior formalities.
The processing of personal data without taking appropriate measures to ensure the data's security.
The absence of notification to CNIL by telecommunication operators having incurred a data breach.
The fraudulent collection of personal data.
Most data protection offences are punished by a sentence of five years of imprisonment and a EUR300,000 fine. Since legal entities can be sentenced to fines up to five times the stated amount, the fine amount can be up to EUR1.5 million.
Currently, CNIL can impose fines of up to EUR3 million. However, the General Data Protection Regulation will drastically increase the amount of the fines that can be imposed by CNIL. Depending on the obligation that is breached, the fines could go up to EUR20 million or up to 4 % of the total worldwide annual turnover for the preceding financial year.
16. What are the rules relating to the interception of calls? How and on what grounds can government authorities require disclosure of communications data? What are the penalties for breach of these rules?
Interception of calls
The regulation of French intelligence was substantially modified in 2015, further to the Law No 2015-912 dated 24 July 2015 which dedicated a part of the French Code of Homeland Security to the regulation of intelligence.
Regardless of the measure requested, whether it is an interception of calls, or electronic communication or of communication data, the implementation of such a measure to collect intelligence is subject to the same principles and procedure:
The request must be issued by an authority authorised to do so.
The request must be authorised by the Prime Minister after the National Commission for the Control of Intelligence Techniques (NCCIT) has rendered its non-binding opinion. In specific case of emergency, the Prime Minister may issue the authorisation without obtaining the NCCIT's opinion.
The measure must be justified by a threat, risk or stake relating to a fundamental national interest.
The violation of privacy that is caused by such measures must be proportionate to the justification used for the request of this measure.
The following are considered fundamental national interests:
National independence, territorial integrity and national defence.
Major interests of foreign policies, execution of France's European and international undertakings, the prevention of any form of foreign interference.
France's major economical, industrial and scientific interests.
The prevention of:
any violation of the republican nature of the institutions;
the reconstitution or maintenance of groups dissolved under national security (such as private militia and groups aiming at harming national integrity);
any collective violence that would gravely impact the public peace;
organised crime; and
the proliferation of mass destruction weapons.
No authorisation for interception of calls in relation to the performance of a profession or mandate can be granted against:
Members of Parliament.
Authorisations for interception of calls can only be granted if the intelligence cannot be obtained by other legal measures. Authorisations are granted for a maximum of two months, renewable for the same duration by a similar request.
Disclosure of communication data
Telecommunication operators must delete or anonymise any collected traffic data, except when complying with a court order to disclose data.
As an exception to the above principle, and for the purposes of researching, noticing and pursuing criminal offences, the anonymisation or deletion of the following communication data must be delayed for one year:
Information enabling the identification of users.
Data related to the communication terminal equipment used.
Technical features, date, hour and duration of each communication.
Data related to additional services subscribed or used and their providers.
Data enabling the identification of the recipient(s) of the communication.
There are two main types of communication data that can be obtained by intelligence measures:
The communication of information or documents processed or retained by the subject's network or electronic communication service. For intelligence measures relating to the prevention of terrorism, this type of information can be obtained in real time. The measure can also be extended (through separate requests) to any acquaintance of a person already subject to this measure if this is likely to provide related information.
The interception of private correspondences issued through electronic communication. This measure can be extended (through separate requests) to any acquaintance of a person already subject to this measure if this is likely to provide information related to the initial authorisation.
An authorisation for the implementation of measures concerning communication data is granted for four months, and is renewable by a new request to the Prime Minister.
The French Code of Homeland Security also contains measures for specific issues, such as the prevention of terrorism.
Penalties for breach
Failure to comply with requests from authorised authorities for communication or interception of data is punishable by two years of imprisonment and a EUR150,000 fine (which can be increased up to EUR750,000 for legal entities), as well as the potential additional sentence of temporary or definitive interdiction to operate certain professional activities.
The interception, misappropriation, use or disclosure of correspondences issued, transferred or received through electronic communication is also punished by a sentence of one year of imprisonment and a EUR45,000 fine (which can be increased up to EUR225,000 for legal entities), as well as additional sentences.
17. Are there any network or data security obligations imposed on communications providers?
Telecommunication operators must take any measure necessary to prevent the use of the data, other than as set out above (see Question 16).
Under the recent Directive (EU) 2016/1148 concerning measures for a high common level of security of network and information systems across the Union (Network and Information Security Directive), holders of internet exchange points may have to comply with specific security obligations. This Directive has not yet been transposed into French law.
18. How are prices and charges regulated?
Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) mainly regulates wholesale prices and only exceptionally retail prices. ARCEP can impose obligations on providers with significant market power (PSMPs) to not use excessive pricing conditions as well as to use pricing reflecting the actual costs (see Question 8). In relation to this obligation to reflect actual costs, ARCEP can establish a price control for several years, and, therefore, define the methods of pricings and accounting that must be implemented by PSMPs.
Premium number rates must be set in accordance with the number plan issued by ARCEP. In this number plan, ARCEP determines the maximum premium rates applicable depending on the type of number used.
Currently roaming charges, applicable when the user is travelling within the European Economic Area (EEA), are set according to the maximum charge defined at a European level (Eurotariff) under the regulation of roaming. These maximum rates apply to:
Calls made from the EEA or received from the EEA.
Text messages sent to any EEA country.
Internet mobile connections.
On 27 October 2015, the European Parliament adopted a June 2015 agreement concerning the end of additional roaming charges in the EU.
However, operators could be allowed to require a small fee under certain circumstances, in the context of a "fair use" policy to prevent abuses. Similarly, operators are also entitled under certain circumstances to set a cap on the amount of data that can be used without surcharges when travelling in another EU country,
Telephone number and subscriber management
19. How are telephone numbers allocated and managed in your jurisdiction?
Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) allocates telephone numbers, controls the use of telephone numbers and the definition of numbers qualifying as premium numbers. Only operators registered with ARCEP can request the allocation of numbers, which are granted for a maximum of 20 years, at ARCEP's discretion.
Operators obtaining telephone numbers must pay an annual fee per number, based on a unit called "a" and depending on the number of digits composing the number. The "a" is the fee corresponding to a regular ten digit phone number, and its value is set by the Minister of Electronic Communications but cannot exceed EUR0.023. The fees for telephone numbers range from (0.1 x a) for numbers with 13 or 14 digits, up to (20,000,000 x a) for numbers with one digit.
There are three major categories of telephone numbers:
Interpersonal telephone numbers. Geographical landline numbers (with the two first digits being 01, 02, 03, 04 or 05, each referring to a specific geographical area), mobile numbers (with the two first digits being 06 and 07), and non-geographical landline numbers (with the two first digits being 09).
Value added services numbers. Numbers with the first digits being 08, numbers with 4 digits (3BPQ or 1XYZ) and numbers of information services (118XYZ).
Technical codes used by operators.
ARCEP can also grant numbers and codes for experimentation purposes. For a maximum duration of two years, such numbers could be subject to limited obligations compared to numbers and codes issued under a regular attribution procedure.
20. Does access have to be provided to certain services, such as the emergency services and directory enquiries?
Operators must take the necessary measures to transfer emergency calls for free to the relevant centre. After these calls, the operator must communicate to the emergency services the locality of the caller.
Emergency calls are defined as calls to public services tasked with:
The safeguard of human lives.
The intervention of the police.
Telecommunication operators must dispatch calls free of charge to the following numbers:
21. Are there regulations relating to specific consumer services, such as acquiring and transferring subscribers, number portability, complaint handling, and nuisance and silent calls?
Telecommunication operators must provide their clients, at a reasonable cost, with an offer to preserve their telephone number where clients wish to change operator. Clients can keep their geographical number if they do not change their geographical location and can keep their non-geographical number, fixed or mobile, if they move within mainland France or within overseas territories.
This obligation benefits all operator clients and not just consumers.
Telecommunication operators cannot use premium numbers for the provision of aftersales support services. This also includes numbers used for user complaints.
All telecommunication service providers must also appoint an impartial and competent mediator that consumers can call for any dispute regarding the conditions of the contract or the execution of the contract. The modalities of intervention of this mediator must be easily accessible, quick, transparent for both parties and confidential.
22. Are consumer telecommunications contracts subject to specific regulations?
There is a section in the French Consumer Code dedicated to the regulation of the offer of telecommunication services to consumers and non-professionals. Further to this specific regulation, telecommunication operators must comply with several obligations, and the main ones are discussed below.
Any contract signed with a telecommunication operator must contain specific information. These contracts cannot be concluded for more than 24 months. If the operator offers a term longer than 12 month, it must also:
Offer the same contract for a term not exceeding 12 months and at a non-disqualifying price.
Allow consumers to terminate the contract after 12 months, the consumer only having to pay one quarter of the amounts due until the expiration of the term.
Any modification of the contractual conditions must be notified to the consumer at least one month before their implementation and consumers can terminate the contract without any indemnity for the operator until four months after the implementation of the new conditions (unless these conditions have been expressly accepted).
Consumers cannot have a longer termination period than ten days imposed on them unless the consumer asks that the termination is effective more than ten days after the notification.
Any breach of the obligations set out in this section can give rise to an administrative fee of EUR3,000, which can be increased up to EUR15,000 for legal entities.
23. Are there restrictions on the use of Voice over IP technology in your jurisdiction?
There is no regulation specific to the use of Voice over IP (VoIP) technology.
However, Autorité de Régulation des Communications Électroniques et des Postes (ARCEP) considers that VOIP providers can be within the scope of the French Postal Services and Electronic Communications Code's definition of telecommunication operators. VoIP providers that only enable calls between users of their software do not qualify as telecommunication operators. However, VoIP providers that enable users to make or receive calls between the VoIP software and users of the traditional telephone network qualify as telecommunication operators.
Therefore, this second category of VoIP providers should be registered with ARCEP through the notification procedure and will therefore be subject to the same obligations and restrictions as other operators (for example, emergency calls, payment of fees and potential interception of calls).
A 2016 report from the Body of European Regulators for Electronic Communications (BEREC) on Over The Top (OTT) services emphasised the need for a thorough reconsideration of the current regulation of Electronic Communications Services (ECS) and OTT services. It is expected that the issue of OTT services will be addressed in the next review of the ECS regulation framework.
24. Are there regulations relating to the maintenance of net neutrality in your jurisdiction?
The Open Internet Access Regulation contains the applicable provisions regarding net neutrality. Further to these provisions, Internet Service Providers (ISPs) have to treat all traffic equally, without slowing down or blocking access to online content or services, except in specific cases such as compliance with court orders, preventing network congestion or combating cybercrime.
Under Article 3(1) of the Open Internet Access Regulation, via their internet access service, end users have the right to access and distribute information and content, to use and provide applications or services, and to use terminal equipment of their choice, regardless of the:
Location of the information, end user or the provider.
Origin or destination of the information.
Content, application or service.
However, the Open Internet Access Regulation was widely criticised because it enables ISPs to offer premium services with higher internet quality. This could potentially lead to the creation of a two-tier internet.
The Body of European Regulators for Electronic Communications (BEREC) issued guidelines in June 2016 on the application of Open Internet Access Regulation to ensure a homogenous application by national regulatory authorities across the EU.
The French Postal Services and Electronic Communications Code also states that operators must comply with the obligations of net neutrality set out in the Open Internet Access Regulation.
Outsourcing and telecommunications
25. Are there specific regulations for the outsourcing of telecommunications services or the management of these services?
There are no specific provisions for the outsourcing of telecommunications services or their management.
26. Briefly set out the current trends in outsourcing transactions in the telecommunications sector.
Unified Communications are one of the notable trends in outsourcing transactions in the telecommunication sector, and especially Unified Communications as a Service (UCaaS).
27. Who are the key providers of outsourced telecommunications?
The key providers of outsourced telecommunications include:
The incumbent operator Orange (Orange Business Services).
Several service providers and equipment providers have also made a successful entry into the market, such as Colt and Cisco.
28. What are the current technologies influencing or affecting outsourcing by telecommunications operators?
One of the major technologies influencing outsourcing in the telecommunication sector is the cloud. For example, the trending offers of Unified Communications as a Service are outsourcing services based on the cloud.
The Web Real-Time Communication (WebRTC) technology, which enables telecommunications directly through web browsers, is also likely to greatly impact the outsourcing market of telecommunications in the near future.
As well as technologies, certain practices have also reinforced the need for telecommunication outsourcing. Increased staff mobility, connection with various devices, and nomadic or flexible working are examples of now common practices that have changed the telecommunication needs of businesses.
29. From a contractual perspective, what are the key issues in a typical telecommunications outsourcing transaction in your jurisdiction?
Before entering into an outsourcing contract, the client must ensure that it has and will retain a technical knowledge of the outsourced service. This will be crucial for the proper supervision of the execution of the contract.
The approach of the pre-contractual phase and implementation phase is vital to the success of an outsourcing deal.
Therefore, the provider must ensure that the client is properly informed of the suitability of the solution for its needs. More generally, the provider must communicate any information that is decisive to its consent. This duty to inform the client cannot be waived in the contract and compliance is therefore crucial. The contract must also provide for the collaboration of both parties, especially to determine the exact needs of the client and the technical solutions that may be implemented in light of the client's current systems. This collaboration should be realised by steering committees involving both parties.
A transition phase can also be included to allow the client to evaluate the opportunity of this solution and to eventually back out. However, a clause subjecting the right to exit the contract to the payment of penalties could be re-qualified by a judge as a liquidated damages clause. Therefore, the judge can review and potentially modify the penalty amount (decreased, if it is too substantial, or increased if it is derisory).
Where there is any regulatory obligation related to the provision of the services, the contract must clearly identify which party has the burden of these obligations.
The limitation of liability set out in the contract must provide a reasonable indemnification of the injured party, as these clauses are reviewed under strict scrutiny. Indeed, judges can void a liability limitation clause that would tend to nullify the party's essential obligation to perform (that is, if the compensation is derisory).
Special attention should be given to reversibility. Once the contract expires or is terminated, how will the services be transferred back to the client or its new provider?
Description. Legifrance is the government entity responsible for publishing legal texts online. It provides access, in French, to laws and decrees published in the Journal officiel, important court rulings, collective labour agreements, standards issued by European institutions and international treaties and agreements to which France is a party.
Diane Mullenex, Partner, Head of the Global Telecommunications Practice
Professional qualifications. England and Wales, Solicitor, France, Avocat à la Cour.
Areas of practice. Telecommunications; IT; networks security; data privacy; E commerce. Extensive experience advising clients in telecommunications, technology and other highly regulated industries; specialises in complex multi-discipline, cross-border telecom projects which have earned her the reputation as an expert in this field; works in Asia, Europe, Africa and the Middle East.
Non-professional qualifications. Appointed as a Conseiller du Commerce Extérieur (CCE) to the French Prime Minister; awarded Insignia of Chevalier de l'Ordre national du Mérite for her involvement in promoting the French TMT sector.
A Middle East based property developer on its participation in the second national fixed-line licensee in the State of Qatar, involving an assessment of the regulatory, commercial and financial benefits of ICT infrastructure needs through alternative methods, such as deploying its own infrastructure and the drafting and negotiating of transactional documents to reflect the desired extent of participation in the licensee, including a managed services agreement, interim co-operation agreement and incorporation documentation.
Sovereign fund: advice regarding the opportunity of an acquisition of holdings in the capital of the incumbent operator in Mali in consideration of the applicable regulations. This involved production of an analysis report of the regulatory framework for telecommunications in Mali, management of a telecommunication regulation audit, and drafting a work paper for the improvement and modernisation of the telecommunication regulations.
Languages. French, English
Professional associations/memberships. Presently an active member of associations such as the IBA, where she is an honorary co-chair of the Communication Law Committee. Also a member of CLUSIF, IAGA, International Masters of Gaming Law, and so on.
Professional qualifications. French Avocat à la Cour, Paris; Attorney at Law, New York State Bar
Areas of practice. Telecommunications; IT; e-commerce; online gaming and gambling; data protection and privacy; cyber security; online regulated activities; complex projects, largely international.
Non-professional qualifications. LLM in Judicial Expertise and Arbitration in Computer Law and related Technologies, Paris II University; LLM in American Law, Boston University School of Law
Languages. French, English
Professional associations/memberships. Active member of many national and international professional organisations, including the Association Internationale de Jeunes Avocats (AIJA) and the New York State Bar Association (NYSBA).