Member State Implementation of the EU 5G Toolbox: Legal Issues Raised
In January 2020, the European Commission endorsed the Toolbox of mitigating measures agreed by the Member States of the European Union to address security risks related to the rollout of 5G. The protection of national security, and cybersecurity in particular, are unquestionably legitimate objectives. However, since protecting these interests may contravene ordinarily applicable laws and principles, EU and international law provide for exceptions to enable the adoption of such security-related measures. These are not open-ended instruments, though, and must be applied subject to essential safeguards.
Certain Toolbox measures could raise legal risks, depending on their actual implementation by Member States. The present White Paper focuses on three Strategic measures ("SM") presented in the Toolbox, as their implementation could raise a number of legal concerns. Specifically, these SM relate to: (i) expanding the role of national authorities (SM01), which may lead to additional and questionable authorization regimes; (ii) screening for high-risk suppliers and imposing restrictions on the use of equipment from such suppliers (SM03), potentially resulting in the outright and unwarranted exclusion of certain suppliers; and (iii) multi-vendor strategies (SM05), which cannot be interpreted as a market share cap that would unjustifiably reduce the number of suppliers on the market.
Jones Day publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information purposes only and may not be quoted or referred to in any other publication or proceeding without the prior written consent of the Firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our “Contact Us” form, which can be found on our website at www.jonesday.com. The mailing of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship. The views set forth herein are the personal views of the authors and do not necessarily reflect those of the Firm.