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

Department of International and European Law 2 Network governance in network industries Formalized coordination European agency Hybrid model

Department of International and European Law 3 Network governance: legal perspective Legitimacy concerns Institutional balance - Delegation of powers Meroni doctrine Accountability gaps - Political accountability - Legal accountability Accountability networks Transparency and participation

Department of International and European Law 4 EU telecom regulation framework EU regulatory models in telecoms 1997: Independent Regulators Group (IRG) 2002: European Regulators Group (ERG) 2009: BEREC and the Office

Department of International and European Law 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

Department of International and European Law 6 Two-tier institutional structure BEREC Board of Regulators Heads NRAs. Commission = observer Chair and Vice Chair Expert Working Groups The Office Management Committee Heads NRAs + Commission Administrative Manager Staff The Office= European agency Independent status, permanent body, legal personality, specific tasks BEREC= not a regulatory agency, nor an executive agency No legal personality

Department of International and European Law 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)

Department of International and European Law 8 ERG: network? General characteristics of networksERG Voluntary formationCommission Decision 2002/627/EC Decision-making process: agreement and consensus Consensus driven. Opinions accommodating wide range of views. Homogeneity among membersHeads of NRAs. Lack of hierarchically superior organization. Policy outcomes: not binding decisions/ soft law Advice to Commission. NRAs: substantial powers. Lack of formal rules, cooperation mechanisms through experimentation Exchange of best practices, information and mutual education. Small secretariat. Conclusion: ERG= example of a network in the ‘technical’ sense of the word

Department of International and European Law 9 BEREC: network? General characteristics of networksBEREC Voluntary formationRegulation (EC) No 1211/2009. Official mission. Decision-making process: agreement and consensus 2/3 majority. Simple majority in Art. 7a remedy proceedings. Homogeneity among membersHeads of NRAs. Lack of hierarchically superior organization. Policy outcomes: not binding decisions/ soft law Advice. Obligation for Commission and NRAs to take utmost account of opinions. Active role: Art. 7 proceedings, Art. 7b, 15(1). Lack of formal rules, cooperation mechanisms through experimentation Clearly defined tasks. Detailed cooperation mechanisms. Office. Conclusion: BEREC= hybrid institutional (network) model

Department of International and European Law 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

Department of International and European Law 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

Department of International and European Law 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

Department of International and European Law 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

Department of International and European Law 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: ?

Department of International and European Law 15 Transparency and participation Art BEREC Regulation Transparency: discretion Board of regulators Stakeholders’ consultation: BEREC DeliverableScopeObligation to take utmost account of? Public consultation needed? Publication needed? 1) BEREC OpinionOn draft decisions, recommendations and guidelines of the Commission To the Commission on national draft measures of NRAs To the EP and Council To NRAs on cross-border disputes YesNoYes 2) BEREC Report to the Commission on any matter regarding electronic communications within its competence General papers on issues not covered by the Regulation NoDepending on the subject Yes 3) BEREC Regulatory Best Practices BEREC Common Approach (Common Position), BEREC Guidelines and BEREC Methodology on the implementation of the EU Regulatory Framework Yes 4) BEREC AdviceTo the Commission on any matter regarding electronic communications within its competence No Yes 5) ComitologyInput to the CommissionNo Yes 6) BEREC AdviceAssistance to NRAsNo (...)

Department of International and European Law 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