BEREC: a new agency model?

1. BEREC: a new agency model? Marco Zinzani, LL.M. 15th Ius Commune Conference Leuven, 25 November 2010

2. Network governance in network industries

3. Network governance: legal perspective

4. EU telecom regulation framework

5. The new institutional context • long and laborious creation (EECMA, BERT, GERT, BEREC) • complex institutional design • decentralized enforcement: NRAs • harmonization: Commission • interdependencies/ coordination mechanisms • shortcomings, legal uncertainty Committees and WGs

6. Two-tier institutional structure BEREC= not a regulatory agency, nor an executive agency No legal personality The Office= European agency Independent status, permanent body, legal personality, specific tasks

7. ERG and BEREC • ‘BEREC should continue the work of the ERG’ (Recital 8, Regulation EC No 1211/2009) • ‘(…) the role previously performed by the ERG is strengthened and given greater recognition in the revised framework, through the establishment of BEREC itself and its enhanced participation in the development of regulatory policy (…). In particular according to that Regulation, BEREC is to replace the ERG (…)’ (Recital 4, Commission Decision 2010/299/EU)

8. ERG: network? Conclusion: ERG= example of a network in the ‘technical’ sense of the word

9. BEREC: network? Conclusion: BEREC= hybrid institutional (network) model

10. Tasks of BEREC • advisory vis-à-vis the Commission • harmonisation • cooperation and assistance to NRAs • cross-border dispute resolution • information gathering and reporting • Article 7/7a Directive 2002/21/EC • together with the Commission, deep involvement in approving national measures to regulate operators with market power

11. Focus on Article 7/7a procedures • Market definition, designation of undertakings with significant market power and imposition of remedies • Art. 7 notifications: scrutiny by Commission • Commission veto over market definition • Communications Committee (Cocom/comitology) replaced by BEREC • No Commission veto on remedies but new procedure applies • Serious doubts on remedies – 3 month pause • BEREC to decide on merit of Commission’s serious doubts • If agrees, BEREC to work with NRA on appropriate remedy – NRA can amend or withdraw • If BEREC disagrees, Commission may, unless it withdraws its doubts, issue a non-binding but persuasive recommendation • NRA needs to provide “reasoned justification” if it does not comply with recommendation

12. Critical remarks • failure of the Commission to establish a regulatory agency • original two-tier institutional structure • remodeled network as key player in regulatory approach • network: absorbed into institutional framework of the EU • BEREC replaces • ERG • Communications Committee (Cocom) for Art. 7 cases • relationship with the Commission: ? • BEREC’s role dependent on quality advice

13. Institutional balance • final regulatory power rests on Commission or national authorities concerned • balance of regulatory competence not affected • Meroni respected (NRA’s powers, not Commission’s) • But: indirect (de facto) legal effect of BEREC opinions

14. Accountability • Where does the main forum of accountability lay? • EU level? Commission/ EP/ European court • national level? National parliaments/ national courts • both levels concurrently? • Legal and practical limits • Need for new mechanisms of cooperation between forums • Lavrijssen & Hancher (2008): mixed parliamentarian commission • National courts: ?

15. Transparency and participation • Art. 18-22 BEREC Regulation • Transparency: discretion Board of regulators • Stakeholders’ consultation:

16. Conclusion • BEREC as formalization of network trend • limited delegation: weaknesses of BEREC, strength of national regulators • new structures, old problems • accountability mechanisms • stakeholders’ position