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The role of BEREC in Articles 7/7a proceedings Brussels, 20 January 2017

Sören Nübel,

Acting Head of Unit & Member of BEREC Chair team 2016

Revised European Regulatory Framework (2009)

2

Authorisation Directive

Access Directive

Universal Service Direct.

Data Protection Directive

Framework Directive

(Art. 95)

Dir 2009/140/EC Better Regulation

Dir 2009/136/EC Citizens‘ Rights

Reg. 1211/2009 BEREC + Office

New Reg.: Body of European Regulators for Electronic Communications (BEREC) a. BEREC Office

Body of European Regulators for Electronic Communications (BEREC)

Established by EC Regulation 1211/2009 published in December 2009 together with new EU Directives for electronic communication

Replaces ERG (dissolved with Dec. 2010/299/EU of 21/05/10)

Develops cooperation among NRAs, and between NRAs and the Commission

to ensure consistent application of the framework in all Member States

thereby contributing to the development of the internal market

serves as a body of reflection, debate and advice for European Parliament, Council and Commission

Board of Regulators

Responsible for all regulatory decisions

BEREC + Office

Reg. 1211/2009

Management Committee

Office

Community Body administrative + prof. support

in control of

supporting

Experts Working Groups (EWGs)

NRAs experts – fundament of BEREC

BEREC – 2-tier-model - 1

Structure of BEREC

Board of Regulators (BoR) – 28 EU NRA members

EC, EEA, Accession NRAs & Switzerland observers

BoR decision making forum

4 Plenary meetings per year

Expert Working Groups – conduct work for approval of BoR.

Experts from NRAs, 9 EWGs for 2017 Work Programme

BEREC Office to provide support to ensure smooth functioning

Management Committee to oversee BEREC Office

5

Board of Regulators

Regulatory decision making group

BEREC

(not an agency!)

The Office

Community Body, funded from the EU

budget

in control of

supporting

Office is controlled by the Management committee

Office is accountable to Management committee

Management committee replaces Administrative Board in regular European agencies, identical with BoR (+1 Cion), thus NRAs are in full control of the supporting Office

BEREC – 2-tier-model - 2

Role and tasks of BEREC

Set out in Articles 2 and 3 of the BEREC Regulation and in the Directives (and the TSM Regulation)

Nature of tasks

Advisory vis-à-vis the Commission

Harmonisation

Cooperation and assistance to NRAs

Cross-border dispute resolution

Information gathering and reporting

Numbering

Article 7/7a

7

8

Recommendation on

Relevant markets

2007/879/EC; 2014/710/EU

Guidelines on market analysis

and assessment of

significant market power (SMP)

Market analysis:

Assessment of effective competition

or significant market power

Cancellation, confirmation or

imposition of obligations

National

level

EC level

ECNS RF Remedies process

Results

can be

vetoed

Remedies

cannot be

vetoed

Definition of relevant market

Art. 7/a FD

Art

. 14-1

6 F

D

ECNS Regulatory Process (1)

3 Stages: market definition: relevant market (list of 4 (5) markets)

market analysis: designation of SMP operator(s)

choice of remedy: imposition of regulatory obligation(s)

If an operator is found to be dominant (either individually or jointly), at least one specific regulatory obligation must be imposed which must be proportionate to remedy the problem, justified in the

light of the Art. 8 FD objectives and based on the nature of the problem

Remedies must be effective: solve the lack of competition

Remedies are to be chosen from the list in the AD/UD (“toolbox”)

ECNS Regulatory Process – Art. 7/7a

NRA notifies (consolidation/co-regulation) draft regulatory measure to EC, BEREC and the other EU NRAs acc. to Art. 7/7a FD:

EC may issue a no-comments letter; make comments (NRA

shall take utmost account);

or open a phase II investigation (where intended measure would create barrier to single market or EC has serious doubts as to compatibility with EU law)

Article 7 or 7a FD: Phase II

Article 7 FD, if EC has serious doubts concerning the market defintion or SMP finding and Article 7a FD where the serious doubts concern the proposed regulatory remedies

These two cases have different severity and therefore involve different treatment, deadlines and voting majorities:

Art. 7 FD: Veto power of the EC on stages 1 + 2 (market def. + SMP),

Art. 7a FD: no veto power of the EC on the application of remedies

EC may only make comments and issue a recommendation addressed to the NRA, which has to be taken into utmost account by the NRA when adopting the final measure

However, in both cases BEREC shall give an opinion, which the EC shall take utmost account of before issuing a decision(Article 7 (7); Article 7a (5))

Article 7/7a – BEREC involvement

Art 3.1.a BEREC Regulation:

BEREC shall be to deliver opinions on draft measures of NRAs

concerning market definition, designation of undertakings with

significant market power and imposition of remedies, in acc.

with Article 7 / 7a FD , and to cooperate and work together with

the NRAs in acc. with Art. 7 / 7a FD.

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The role of BEREC (1)

BEREC Office sets up a team of experts from other NRAs (or exceptionally from the BO) when a Phase II was opend by the EC (ad-hoc EWG)

Mandate to prepare an independent BEREC opinion on the justification of the Commission’s serious doubts on the case

BEREC Office coordinates the work of EWG

5-7 experts including the Rapporteur

The EWG co-operates with the notifying NRA (e.g. additional information on request by EWG, meeting, telephone conference)

The EWG co-operates with the EC (e.g. information of EC about establishment of EWG, timetable, meeting, telephone conference)

The role of BEREC (2)

EWG elaborates position whether the Commission’s serious doubts on the case are justified

The Board of Regulators votes on the adoption of the position issued by the experts to form BEREC‘s opinion for this Phase II case

Publication of the BEREC opinion on the Phase II investigation on the BEREC website

EC shall take utmost account of the opinion of BEREC before issueing a decision

Article 7a (4): where BEREC shares the EC‘s serious doubts regarding a regulatory obligation, it cooperates closely with the NRA for finding the most appropriate and effective measure for the particular case

Phase-II cases

Pro-competitive regulation effectively implemented, relying

on competition law principles

Effective Competition

Efficient investment and consumer benefits

Consistency and developing the internal market

No veto on remedies, but a complex Art. 7a – co-regulation procedure shifting the balance towards the European level

Flexibility for remedies

Art.7-veto for market analysis

NRAs Euro. Commission

BEREC /Art.7a

Summary and Conclusion: Regulatory Balance

Thank you for your attention!

Questions?

Sören Nübel

Acting Head of Unit

International Policy Issues and Regulatory Strategy

soeren.nuebel@bnetza.de