The Gigabit Infrastructure Act

Recognising the importance to business and society of fast, reliable, and data-intense connections, the EU has entered the Gigabit Infrastructure Act (the “GIA”) into force with the aim of ensuring a cheaper and simpler rollout of very high capacity networks (“VHCN”) including fibre and 5G. The GIA will be directly applicable across the EU from November 2025 (with some provisions applying at a later stage) and impacts tower operators, mobile network operators, fibre providers, and investors in these businesses. It replaces the 2014 Broadband Cost Reduction Directive.

At Sidley, we have been helping clients understand the implications of these new rules.

Access to Land

The GIA aims to facilitate the process for installing mobile network infrastructure, such as towers, on land. It provides that landowners (and their intermediaries), and operators, have to ‘negotiate access to land in good faith, including on price, which where appropriate will reflect market conditions’. This has been watered down from previous iterations of the GIA which proposed obligations to agree to ‘fair and reasonable terms and conditions’ (which would have likely led to significant litigation over which prices are ‘fair and reasonable’). The language adopted in the GIA, appears to be intended to prevent significant price hikes by intermediaries such as lease aggregators, rather than set a pricing level. However, landowners and operators will now be required to inform national regulatory authorities of the terms of each such agreement (including price), and Member States will be able to set their own guidance on terms. It is clear that this segment of the market will face additional regulatory scrutiny in the future, though the impact is unlikely to be as far reaching as that under the UK Electronic Communications Code, where it is reported that there has been an increase in litigation between landowners and operators in the UK, and ultimately certain downward pressure on rents for relevant leases.

Access to Existing Physical Infrastructure

The GIA specifies that network operators and public bodies have to meet all reasonable requests for access to their physical infrastructure to deploy VHCN under fair and reasonable terms and conditions, including price. This is to facilitate operators being able to install equipment on public lighting, heating, and water services, but also to access in-building infrastructure and the physical infrastructure of other operators, e.g. to install equipment on another operator’s tower. The terms of access to this have never previously been regulated and these provisions initially caused opposition amongst operators on the basis that they would effectively impose price controls. However, the final version of the GIA clarifies that although it is motivated by ‘avoiding excessive prices’, existing market terms and the need for a fair return on investment must be taken into account, which most operators have viewed as consistent with existing business models.

Permits

Obtaining planning permits has been one of the biggest hurdles to the deployment of VHCN. The GIA includes a principle of ‘tacit approval’ for permit applications – if a competent authority doesn’t respond to a request to grant a permit within four months, then an authorisation to proceed is deemed as given. However, Member States are able to derogate from this to instead include a conciliation/compensation mechanism for delay or the right to file court complaints for permit delays.

Response to GIA and UK Legislation

Operator response to the changes implemented by the GIA has been lukewarm. Operator statements and submissions during the legislative process generally pushed back on attempts to regulate pricing but supported efforts to cut red tape for the installation of physical infrastructure. Telecoms operators’ industry associations ECTA, ETNO, GIGAEUROPE & GSMA released a joint statement on the GIA criticising the watering down of the tacit approval procedure by allowing derogations by Member States.

We note that the GIA will not apply to the UK, where similar rules are in place under the auspices of the UK Electronic Communications Code (which has recently undergone changes pursuant to the Product Security and Telecommunications Infrastructure Act 2022 (regulations under which are being rolled out in stages throughout the course of 2023 and 2024)).