FRANCE Law and Practice Contributed by: Clara Hainsdorf, Bertrand Liard, Saam Golshani and Guillaume Vitrich, White & Case LLP
Applicable Requirements The declaratory regime for ECSs was abolished in 2021. The provision and establishment of ECNs are now unrestricted, but they must com - ply with the obligation to notify security incidents to ARCEP, net neutrality, interoperability of ser - vices, etc. In France, every operator must pay an adminis - trative tax under the conditions provided by the finance law. They must also pay an additional fee if they use a specific frequency or provide a specific numbering. Providers of instant messaging are subject to stricter data protection law requirements regarding messages under Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector (ePrivacy Directive). The ePrivacy Directive notably obliges member states to ensure the confidentiality of commu - nications and the related traffic data by means of an ECN or ECS through national legislation. For example, traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when no longer needed, pursuant to Article 6 of the ePri - vacy Directive. 6.2 Net Neutrality Regulations In France, net neutrality is governed by both EU regulations and national laws. The EU's Net Neutrality Regulation 2015 prohibits internet service providers (ISPs) from blocking, throttling or prioritising content, except in specific cases like network security or legal compliance. France has integrated these regulations into its national framework, with ARCEP overseeing enforce - ment.
and electronic communication services (ECSs) (Article L 32 of the French Postal and Electronic Communications Code). At an EU level, however, Directive (EU) 2018/1972 establishing the European Electronic Communi - cations Code (EECC Directive) has modified and updated the applicable framework. In France, the EECC Directive was transposed by Ordi - nance No 2021-650 of 26 May 2021. The EECC Directive expands the definition of ECSs by including so-called “interpersonal com - munications services”, defined as services nor - mally provided for remuneration that enable the direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipients. Accordingly, and subject to the transposition ordinance of the EECC Directive, voice-over internet protocol (VoIP) and instant messaging fall under the new scope of the telecommunica - tions rules. This was confirmed by Recital 15 of the EECC Directive, and is in line with the ECJ’s previous ruling, which considered that SkypeOut offering a VoIP service constitutes an ECS (ECJ, 5 June 2019, C-142/18). The qualification of radio-frequency identifica - tion (RFID) as ECS remains unclear, as it is not specifically covered by the new scope of the tel - ecommunications rules. However, ARCOM and the Autorité de Régulation des Communications Électroniques, des Postes et de la Distribution de la Presse ( ARCEP) consider RFID technology as radio-electric installations, which can be used on certain frequencies only and with defined techni - cal settings.
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