Directive 2002/22/EC of the European Parliament and Council of 7 March 2002

The 2002 Universal Service Directive (USD) limited functional internet access to narrowband data rates of a maximum of 56kbit/s.

Directive 2009/136/EC of the European Parliament and Council of November 2009

The 2009 Telecom Package gave MS the flexibility to define where necessary, the data rates at national level, which may include broadband speeds.[27] MS thus have the possibility, but no obligation to include access to broadband connections within the scope of national USO.

Article 5 of the 2009 Universal Service Directive states that:

“[…] The data rate that can be supported by a connection to the public communications network depends on the capabilities of the subscriber’s terminal equipment as well as the connection. For this reason, it is not appropriate to mandate a specific data or bit rate at Community level. Flexibility is required to allow Member States to take measures, where necessary, to ensure that a data connection is capable of supporting satisfactory data rates which are sufficient to permit functional Internet access, as defined by the Member States, taking due account of specific circumstances in national markets, for instance the prevailing bandwidth used by the majority of subscribers in that Member State, and technological feasibility, provided that these measures seek to minimise market distortion […]”.

Annex V of the Universal Service Directive states that services should be “available to and used by the majority of consumers”.

Recital 25 of the Directive reflects the notion that that services covered should be available to a “substantial majority of the population”. Accordingly certain thresholds could be applied to determine whether the required critical mass of broadband take-up is achieved (e.g. consider including broadband connections in USO where the data rate in question is used at national level (i) by at least half of all households and (ii) by at least 80% of all households with a broadband connection).

Work by the European Commission[28]

The EU universal service concept is a dynamic one, meaning that the scope “should evolve and keep pace with advances in technology, market development and changes in user demand” (Recital 1 of the Universal Service Directive 2002/22/EC). This is ensured to date by the process for reviewing of the universal service scope set out in Article 15 in conjunction with Recital 25 and Annex V of the Universal Service Directive 2002/22/EC, which establish the criteria and methodology for reviews.

Article 15 of the Universal Service Directive of 2002 requires the European Commission to undertake periodic reviews of the scope of universal service, taking into account social, economic and technological developments among other conditions.

The Commission has undertaken four reviews of universal service and the pertinent data element relevant for this assessment is now outlined below.

Universal service e-communications: report on the outcome of the public consultation and third periodic review of the scope in accordance with Article 15 of Directive 2002/22/EC[29] from 2011

This document sets out some reflections on the measures that could be taken by MS when considering the scope of the USO relating to functional internet access at “broadband speeds”.

When MS consider whether to define the network connection permitting ”functional internet access” at broadband speeds at national level, a set of coherent criteria, reflecting the criteria for changing the scope of universal service at EU level,[30] could help to ensure consistency and minimise market distortion, while meeting the objective of preventing social exclusion.

It considered that MS could make a prior assessment of the impact of such a decision, which could include assessing overall national broadband take-up in terms of the percentage of national households with broadband and the percentage of households with a broadband speed equal to or above the minimum speed envisaged.

Reflecting the notion in recital 25 Universal Service Directive 2009/136/EC that services covered should be available to a ”substantial majority of the population”, certain thresholds could be applied to determine whether the required critical mass of broadband take-up is achieved. MS could be asked to consider including broadband connections in USO where the data rate in question is used at national level (i) by at least half of all households and (ii) by at least 80% of all households with a broadband connection.

MS could also identify their specific social and economic objectives and desired outcome which could include and assessment of:

- the expected market availability of broadband without public intervention;

- the social and economic disadvantages incurred by those without access to a broadband connection, including disabled end-users;

- the cost of public intervention via USO and comparison of this cost against the use of other approaches;

- the benefits of public intervention and its effects on competition, market distortions and broader policy objectives.

Accordingly, intervention would only occur where overall benefits outweigh overall costs.

European Commission - 2014 review of the scope of universal service

In 2016 the Commission published its fourth periodic “Review of the scope of universal service”[31] which examined the future of the universal service and specifically looked at the inclusion of broadband in the USO.

One of the major benefits of broadband is the ability which it provides for users to participate in the digital economy and society by using a number of essential online Internet services. There is a risk of social exclusion from not being able to use these types of services through having no or insufficient broadband connection. The Commission’s review identified the essential types of online services required for effective access to online services. This provided the foundation for the study to identify the characteristics of broadband[32] connections required for effective access to online services that enable inclusion in the digital economy and society.

In Chapter 6 of the report the study outlines detailed a methodology to calculate the bandwidth and data requirements that would be required to provide the level of connectivity to meet the requirements of Annex V of the Universal Service Directive.

The report developed a methodology involving four ”baskets” of online services, with the primary basket of services[33] addressing social inclusion and services used by the majority of consumers.

The primary basket[34] developed by the study for the purposes of this report is comparable to and closely matches Annex V[35] of Directive 2018/1972, apart from a difference in certain terminology used. Furthermore the ‘seeking health information’ category is included in the primary basket but not in Annex V, and similarly ‘job searching tools’ are included in Annex V but not in the primary basket. However it can be considered that both terms fall under the ‘finding information about any subject’ criterion of the primary basket or the ‘search engines enabling search and finding of all type of information’ requirement of Annex V. Thus, the two lists of online services for the purposes of ensuring social inclusion and the determination of adequate broadband provision under universal service are easily comparable. The study determined methodology for calculating the minimum bandwidth requirements[36] is appropriately relevant for exploration within the scope of the responsibility designated to BEREC End-User WG in the drafting of a report on MS’ best practices to support the defining of adequate broadband internet access service.

Having established the primary basket of online services the report then goes on to outline a step by step methodology for estimating the minimum broadband connection requirements (upload, download and latency) to deliver the services contained in the basket, and does so at MS level, selecting a representative sample of eight EU MS to calculate the upload and download bandwidths to connect to each service in the basket. The most commonly used service providers in each of the sample MS were then examined for each of the internet services contained in the primary basket. This was done in some instances using the web analytics service Alexa in order to identify the most used providers for a given service.

Upload and download speeds were calculated for all sources in order to determine the upload and download requirements for use of these services. Additionally, Alexa data on the regularity of use of the services was also considered in order to estimate the monthly data requirements of an average user in a given MS.

The results were presented into key findings;

- the minimum download bandwidth requirements of the most data-consuming services commonly used in the provision of each service contained in the primary basket (Mbit/s);

- the average minimum bandwidth requirement for all services in the primary basket (Mbit/s);

- the average monthly data requirements for each service in the primary basket (MB); and

- a monthly average based on the cumulative data requirements for the all services in the primary basket (GB).

The results were slightly different for each MS considered in the report, reflecting the different providers used most commonly in each territory. The study noted that it is important that usage levels do not exceed the usage “caps” imposed by the packages offered by Internet access service providers.

The steps taken in this analysis by the study can be simplified as follows:

1. develop a list of services, conceptualised as a primary basket of online services generally used by the majority of consumers that help to address social exclusion

2. investigate and determine the upload and download speeds required to use the most commonly used services providers accessed in a Member State for the delivery of each of the online services in the primary basket (web analytics service Alexa was used to determine the most used services per category)

3. data about the regularity of use of services was used to estimate monthly data requirements for the average online user. This was used to identify minimum monthly usage levels.

The steps taken by the study to determine the necessary speeds and data requirements of users in eight MS are useful in considering how in the future, MS might themselves define adequate broadband in their territories, particularly in light of the consistency between the internet services listed in the primary basket and Annex V of the Directive (EU) 2018/1972.

Chapter 7 of the study report also looks forward to 2020, estimating the future requirements of the average user for the services in the primary basket. The report found that bandwidth requirements for the primary basket were likely to increase to a requirement of a 9.6 Mbit/s connection (from the average of 4 Mbit/s estimated for 2015). Further details on how the study came to the projection for 2020 would be useful considering the requirement of Article 84 Directive (EU) 2018/1972 that the report to be drafted by the End-User WG “should be updated regularly to reflect technological advances and changes in consumer usage patterns.”

It is important that the BEREC report on best practices takes into account the research and proposals set out on this subject to date. Given the requirement of Article 84 of Directive (EU) 2018/1972 that the report on best practices be drafted in close cooperation with the Commission, and understanding that the raison d’être for the Review of the Scope of Universal Service report was a requirement under Article 15 of the Universal Service Directive, this document and its related studies should be carefully considered in exploring best practices for the defining of adequate broadband internet access service.

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