For decades, Over-the-Top service providers (OTT) have developed outside the EU legal framework for electronic communications as the latter was not designed to regulate non-traditional telecom players.

On top of that, the European framework relied on a set of directives which has been implemented through member states’ local laws following various approaches.

The obsolescence of the former EU framework and the lack of harmonized approach to OTT services made it possible for these new global players to escape from a wide set of constraints. Hence, the emergence of so called “regulation free” voice services by these players which created heavy frustration within all National Regulation Agencies (NRA).

That era is now definitely over and there is a regulatory revolution going on for OTT service providers which is becoming a reality in many jurisdictions starting with the EU countries.

After years of discussions, the EU has adopted the new European Electronic Communications Code (EECC) on the 11th December 2018. This EECC is revising the framework to clearly regulate these new services. There are now two new regimes: one for number-independent service providers (such as instant messaging), the other for number-based service providers (such as VoIP). In a few words, on the one hand, if OTT services offer an access to publicly assigned numbering resources, they are subject to similar rules as the traditional telecommunications operators. On the other hand, if they only offer “number-independent interpersonal communications services”, they will be subject to a new and lighter regime.

At first, this new set of obligations was supposed to be implemented in every EU country before the 21st December 2020. However, a lot of countries were late achieving this goal due to the Covid-19 crisis.

Today, only eight countries (Finland, Hungary, Denmark, Greece, Bulgaria, France, Germany and Italy) have implemented the new framework in their national law. For instance, France has implemented the EECC via an Ordinance published on the 26th May 2021 and two recent decrees issued in September and October 2021: as a result, it is now compulsory for VoIP and OTT operators to respect the obligations set out in the EECC.

In some countries where the Code is not yet implemented, the national regulators are requiring OTT operators, especially those who use publicly assigned numbering resources of their country, to register and comply with regulatory requirements. In addition, several countries outside the EU are implementing new laws following the same regulatory regime.

There is no more time to escape from this new set of obligations. The future winners will be those who are adapting their business to this new framework.

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