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End-user rights under the new Electronic Communications Act (ZEKom-2) part 1

The Electronic Communications Act (ZEKom-2), which entered into force on 10 November 2022, introduced changes to the chapter regarding end-user rights. It transposes the provisions of the Directive establishing the European Electronic Communications Code, which almost uniformly regulates the end-user rights across the EU.

ZEKom-2 regulates the rights of users and the obligations of operators, which relate to the phase of entering into a contract regarding the provision of electronic communications services as well as to its performance.

Operators have three months (until 10 August 2023) to revise their general terms and conditions to ensure compliance with the new rules.

Revised chapter on end-user rights in ZEKom-2

The new Electronic Communications Act (ZEKom-2) introduced, among many other changes, a revised chapter on end-user rights and the relationship between end-users and providers of publicly available electronic communications services (Chapter IX, Articles 183-210).

The amendments are the result of the alignment of Slovenian legislation with the provisions of Articles 98-115 of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 on the European Electronic Communications Code (EECC).

The addressees of the provisions regarding end-user rights are providers of electronic communications services (operators) as well as their users. Users’ rights are mirrored in the obligations of operators: the latter are subject to certain obligations in relation to ensuring users’ rights, which they must fulfil in order to ensure that their business model is in compliance with legal requirements. Among other things, operators are required to adapt their general terms and conditions to the provisions of ZEKom-2 within nine months after its entry into force (i.e. by 10 August 2023) (as stipulated in Article 318 of ZEKom-2).

Full harmonisation of end-user rights at EU level

In transposing the EECC provisions into ZEKom-2, the Slovenian legislator was bound by the EECC’s requirement for (almost) full harmonisation of users’ rights (Article 101 of the EECC).  In line with this requirement, EU Member States are not allowed to maintain existing provisions in their national law or introduce provisions regarding end-user rights that differ from those laid out by the EECC (Articles 102 to 115), including more or less strict provisions that ensure a different level of protection.

The requirement for full harmonisation is not without exceptions (hence the mention of a so-called calibrated full harmonisation in the recital (257) of the EECC). It may be derogated from if a specific provision of the EECC so allows. An example of such derogation is Article 105(4) of the EECC, which allows Member States to extend the time limit for exercising the end-user’s right to termination of the contract due to unilateral changes to the terms of the contract from one month from receipt of notification to a maximum of three months.

The requirement for full harmonisation is of great importance for both end-users as well as service providers. The harmonisation of the rules in individual EU Member States should ensure that the end-users enjoy the same high level of protection when using electronic communications services, regardless of the Member State in which they are located, i.e. including when they are employed in or travelling to other Member States. For providers of electronic communications services, full harmonisation should significantly reduce barriers to entry into foreign markets and unnecessary compliance burdens arising from the current fragmentation of rules (recital 257 EECC).

Who must guarantee the rights to users?

Put simply, the operators which provide publicly available electronic communications services to users must comply with the requirements laid down by the provisions regulating end-user rights. Nevertheless, the abovementioned statement is a generalisation as not all operators are bound by all end-user rights provisions.

Operators that are microenterprises (as defined by the law governing companies), are subject to a general exemption regarding the provisions of the chapter on end-user rights under the condition that they only provide a number-independent interpersonal communication services (Article 185 of ZEKom-2).

Under the current legislation, a microenterprise is a company that meets two of the following criteria: the average number of employees in a financial year is 10 or less; the net turnover does not exceed €700,000; the value of assets does not exceed €350,000.

A number-independent interpersonal communication service is an interpersonal communications service which does not require, for the establishment of a connection, numbering elements allocated pursuant to ZEKom-2, namely a number or numbers from the numbering plan of the Republic of Slovenia or from an international numbering plan, or which does not enable communication with a number or numbers from such numbering plans. This includes, for example, instant messaging services via the internet by social network applications.

Such microenterprises are subject to only two sets of rules from the chapter on users’ rights: as all other operators, they must comply with the prohibition of discrimination (Article 183 of ZEKom-2) and with the rules on the safeguards of fundamental rights (Article 184 of ZEKom-2). However, if a microenterprise also provides other electronic communications services, it may no longer benefit from the exception (see also Article 98 of the EECC).

In addition to the exemption of certain microenterprises, it should also be borne in mind that certain individual provisions of ZEKom-2 address various service providers, mainly on the basis on the types of services they offer. Some provisions apply to providers of any public communications services, while others are limited to, for example, those providing internet access services, publicly available interpersonal communications services, publicly available (mobile) number-based interpersonal communications services, etc. Some provisions also set forth exceptions for certain types of services (e.g. machine-to-machine transmission services).

Who are the beneficiaries of the rights?

Just as there is no general answer to the question of which subjects are obliged to comply with the provisions of ZEKom-2 on users’ rights, there is no general answer to the question of who the beneficiaries of the rights are stemming from these provisions.

ZEKom-2 speaks of “users’ rights” in the title of the chapter; however, one should not be misled by the title. Only a limited extent of the provisions of the chapter apply to all users. They mainly apply solely to end-users, and in several places only to those end-users who are consumers. Some provisions also regulate consumers equally to microenterprises, small companies, or non-profit organisations, unless the latter expressly waive the application of those provisions.

The differences between the concepts of “user”, “end-user” and “consumer” are important.

Where ZEKom-2 uses the term “end-users”, it refers to natural or legal persons who use or apply for the use of a public communications service and who do not themselves provide public communications networks or public communications services (points 34 and 89 of Article 3 of ZEKom-2). Under these conditions, the end-user can be anyone from a large company to a consumer. However, where ZEKom-2 uses the term ‘user’ (point 89 of Article 3 of ZEKom-2), which is a broader term, it also refers to those users of services who themselves provide public communications networks or public communications services. Only a limited set of provisions (e.g. Article 200 (emergency communications), Article 204 (radio and terminal equipment), Article 208 (limitation or interruption for reasons on the part of the operator)) applies to all users (regardless of whether they are end-users).

The term “user” often overlaps with the term “subscriber”, which ZEKom-2 uses particularly in connection with the provisions regarding subscription agreements. A subscriber is any natural or legal person who enters into a contract with a provider of public communications services for the provision of such services (point 44 of Article 3 of ZEKom-2). Same as user, a subscriber can be anyone, including a person who itself provides public communications networks or public communications services.

Some provisions apply only to those end-users or subscribers who are consumers. For the purposes of ZEKom-2, a consumer is defined as a natural person using or requesting a public communications service for purposes other than its trade, business, or profession (point 57 of Article 3 of ZEKom-2).

The importance of ensuring compliance with the requirements of ZEKom-2

Ensuring that operators comply with the provisions of ZEKom-2 regarding users’ rights – more on these in the continuation (second part) of this article – is not only important because the operators are subject to inspection and administrative scrutiny as well as fines for minor offences (see e.g. Articles 299 and 300 of ZEKom-2). When it comes to users which are consumers, timely and appropriate adaptation to the new rules is particularly important from a civil law perspective. This is because in relation to consumers, operators may also be exposed to collective enforcement of prohibitory claims and damages claims on behalf of consumers under the Collective Actions Act. Ensuring compliance with the rules on the rights of end-users who are consumers may significantly reduce the exposure to successful enforcement of such claims.

We invite you to read the second part of this article, which will published 24.05.2023 and will provide an overview of:

  • the individual rights of users and the corresponding obligations of operators,
  • mechanisms for resolving complaints and disputes between operators and users.