EU Gigabit Infrastructure Act Paves Way for More Access to Physical Infrastructures and Potential Further Deregulation of Telecom Sector

The GIA

Following the European Commission's GIA proposal unveiled on 23 February 2023, (see our previous Commentary, The European Commission's "Connectivity Package" Set to Reshuffle the Telecom Sector), the European Parliament and Council approved the final version of the GIA on 29 April 2024, which was then published in the Official Journal of the European Union on 8 May 2024 (Regulation (EU) 2024/1309 of the European Parliament and of the Council of 29 April 2024 on measures to reduce the cost of deploying gigabit electronic communications networks, amending Regulation (EU) 2015/2120 and repealing Directive 2014/61/EU (Gigabit Infrastructure Act).

The GIA will be directly applicable in all member states, for most provisions as from 12 November 2025. Directive 2014/61/EU on measures to reduce the cost of deploying high-speed electronic communications networks [the Broadband Cost Reduction Directive ("BCRD")] is thus also repealed, and its national implementing laws will need to be removed or modified. 

The GIA introduces a set of actions to simplify and speed up the deployment of very high-capacity networks, such as fiber and 5G, by reducing the administrative burden and the costs of deployment. The GIA also aims to reduce the environmental footprint of electronic communications networks by promoting reusing existing physical infrastructure and improving the coordination of civil works will help minimize the overall environmental impact of network deployment through more efficient resource use.

The main changes introduced by the GIA with respect to the BCRD are the following: 

• Network operators, such as those providing electronic communications networks but also infrastructure used for gas, electricity, railways, tunnels, sewage, etc., must provide access to their physical infrastructures such as ducts, pipes, towers, rooftops, and mast, for the purpose of deploying elements of VHCNs, such as fiber and 5G. These measures enable operators to reuse public and private infrastructure and spaces, such as rooftops, for installing digital network elements, ultimately lowering deployment costs. Noteworthy extensions of the BCRD scope include that:
• The definition of network operator has now been extended to also include providers of physical wireless infrastructure like tower companies. This result from the fact that the GIA will apply to undertakings providing "associated facilities" as defined in the European Electronic Communications Code, which include tower companies.
• Land aggregators, which are tenants or holders of rights over land, or that manage lease contracts in relation to land on which VHCN facilities are installed or are planned to be installed, are also obliged to negotiate access to such land in good faith, including on price.
• The GIA also introduces an access obligation to the physical infrastructure that is "owned or controlled" by public sector bodies, and with some conditions, this access obligation also includes private commercial buildings. The regulation allows the operators to be granted access to the infrastructure with a fair market price and with access to a minimum of information upon request. 
• The GIA simplifies the coordination of civil works between the public sector bodies and the operators in order to facilitate the deployment of VHCNs services. This simplification is achieved with the transparency on planned civil works with the single point of information. ("SIP"), whose usage if now generalized for obtaining information about existing physical infrastructure, civil works, and permits. The SIP are digital access points allowing exercising the rights online. Several points of contacts could be established but they should be consolidated in one national SIP. 
• The GIA provides principles for administrative simplification of licensing/authorization procedures. Member States shall implement consistent rules governing the conditions and procedures applicable for granting permits, including rights of way. This includes the ability to request permits directly via the SIP. The GIA also introduces a tacit authorization deemed to be granted in the absence of a response from the competent authority within the four-month period required to issue the license/authorization, unless this period is extended and provided that the permit-granting procedure does not concern rights of way.
• Additionally, the new rules aim to stimulate innovation by requiring that new and significantly renovated buildings be pre-equipped with fiber and fiber-ready infrastructure. The GIA introduces the obligation for newly constructed or undergoing major renovation works in-building physical infrastructure to be equipped with a fiber-ready connection. The Member States must ensure that they adopt relevant standards and technical specifications to achieve this goal, and allow ordinary maintenance activities for VHCN services.
• The GIA simplifies conflict settlement with the establishment of a national dispute settlement body that has to solve the dispute in a delay of only one to four months upon request.

The Gigabit Recommendation 

The Gigabit Recommendation offers national regulatory authorities ("NRAs") guidelines on designing access remedy obligations for operators with SMP. The aim of such recommendation is to ensure fair competition while promoting the rollout of gigabit networks by guaranteeing all operators access to existing network infrastructures. Specifically, the Gigabit Recommendation provides guidance on situations where access to civil-engineering infrastructure is the only remedy to address identified competition issues. It also outlines how NRAs can facilitate a smooth transition from copper to fiber. 

Some of the guidelines are the following:

• NRAs should ensure that SMP operators offer wholesale inputs on an equivalent basis, using the same systems and processes for third parties and their own downstream services.
• NRAs must require SMP operators to provide wholesale inputs that allow third parties to technically replicate new retail offers. NRAs should verify that necessary technical and commercial information is available to third-party operators in a timely manner.
• NRAs must mandate access to the civil-engineering infrastructure of SMP operators where necessary to address competition issues. This includes providing the necessary information and efficiently managing access requests by SMP operators. The access obligation should consider all relevant assets and prioritize specific regulatory requirements over general legislation to address particular competition problems.
• NRAs must ensure that the conditions for pricing flexibility are met, including the presence of infrastructure-based competition or realistic commitments for alternative network deployments.
• The BU LRIC+ methodology is recommended for calculating current costs for deploying a modern VHCN, ensuring cost recovery and appropriate returns on capital.
• NRAs must reward the investment risks on new VHCN projects following certain factors of uncertainty by not imposing price control obligations in order not to undermine the investment.

The White Paper

The Commission also published a white paper on the future of connectivity which sets out the trends and challenges in the digital infrastructure sector and identifies potential policy options.

Amongst the challenges identified are the need to achieve scale to meet investments needs, the lack of a true single market (one point also flagged in the report prepared for the next EU Commission by former Italian Prime Minister M. Enrico Letta), the convergence with other services such as cloud and the lack of level-playing field across services, as well as sustainability, security in the supply chain and for submarine cables. 

The policy options considered include more harmonization on spectrum, copper switch off and authorization; potential deregulation of the Significant Market Power model through the removal of all regulated markets; the possibility to introduce a country of origin principle for authorizations, and bringing cloud providers and content delivery networks within the realm of dispute settlement bodies. 

The consultation on the white paper closed in June 2023, and several stakeholders such as Body of European Regulators for Electronic Communications, or BEREC, have already published their comments. 

New Directly Applicable Rules 

The new rules of the GIA will be directly applicable in all Member States 18 months after its entry into force, with certain provisions applying slightly later.

Although regulations are directly applicable and binding in all Member States, some of the rules, in particular those related to access to public buildings, coordination of civil works, simplified permit procedures and single information points, require some implementation at national level and further additional points will be added by the competent national authorities. 

Furthermore, Member States will have to ensure that their transposition of the BCRD is removed progressively, so that there could be no conflict between such existing national measures and the new regulation proposal. 

This new regulation will be fully applicable from 12 November 2025, with the last articles entering into force by 12 May 2026.

The Gigabit Recommendation is of immediate application and the white paper could lead to further legislative proposals under the new Commission to be established over the summer.