Orange France has filed a priority question of constitutionality (QPC) with the Council of State (Conseil d’Etat) challenging the power of sanction of the telecoms regulator Arcep, the company confirmed to AFP. Local news source Le Monde writes that the incumbent operator has been put on notice several times by Arcep between October 2018 and January 2019 for failing to meet its universal service obligation (USO) for fixed telephony services, quality of service (QoS) shortcomings and its commitments in relation to the deployment of fibre. Orange has claimed that the principles of separation of powers and impartiality guaranteed by the Constitution are not respected within Arcep. The operator added that, altough the regulatory, investigative and sanctioning powers of the regulator are divided into three groups, this division is not sufficient under the Constitution. The Council of State must now examine the request before deciding whether to send it to the Constitutional Council, which would then have to rule on the matter and, if necessary, repeal the legislative provision. If Orange wins, Arcep could lose its power to sanction operators.
As previously reported by TeleGeography’s CommsUpdate, in July 2013 the Constitutional Council revoked the legal provisions governing Arcep’s powers, thus stripping the watchdog of its authority to enforce sanctions. Arcep’s authority was subsequently restored with Decree No. 2014-867 of 1 August 2014; under the new provisions, different members of the Arcep executive board are now assigned different tasks in order to ensure that the principle of separating investigative and sanctioning powers is met. A body comprising four board members (including the chairman of Arcep) – Reglement des Differends de Poursuite et d’Instruction (RDPI) – adopts decisions on formal notices, investigations, dispute settlements and inquiries, while the remaining three board members make decisions on sanctions.