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

EU regulatory models in network infrastructure industries: evolutionary patterns

Loose network of regulators

Enhanced network of regulators

Formalized coordination

European agency Hybrid model

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Network governance: legal perspective

Legitimacy concerns

Institutional balance

Accountability gaps

- Political accountability- Legal accountability- Accountability networks- Transparency and participation

- Delegation of powers- Meroni doctrine

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EU telecom regulation framework

EU regulatory models in telecoms

1997: Independent Regulators Group (IRG)

2002: European Regulators Group (ERG)

2009: BEREC and the Office

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The new institutional context

BEREC and the Office

Commission

Member StatesNRAs

•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

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Two-tier institutional structure

BEREC

Board of Regulators Heads NRAs. Commission = observer

Chair and Vice Chair

Expert Working Groups

The Office

Management CommitteeHeads 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

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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)

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ERG: network?

General characteristics of networks ERG

Voluntary formation Commission Decision 2002/627/EC

Decision-making process: agreement and consensus

Consensus driven. Opinions accommodating wide range of views.

Homogeneity among members Heads 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

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BEREC: network?

General characteristics of networks BEREC

Voluntary formation Regulation (EC) No 1211/2009.Official mission.

Decision-making process: agreement and consensus

2/3 majority. Simple majority in Art. 7a remedy proceedings.

Homogeneity among members Heads 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

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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

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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

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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

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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

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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: ?

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Transparency and participation

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

BEREC Deliverable Scope Obligation to take utmost account

of?

Public consultation needed?

Publication needed?

1) BEREC Opinion •On 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

Yes No Yes

2) BEREC Report • to the Commission on any matter regarding electronic communications within its competence•General papers on issues not covered by the Regulation

No Depending 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 Yes Yes

4) BEREC Advice To the Commission on any matter regarding electronic communications within its competence

No No Yes

5) Comitology Input to the Commission No No Yes

6) BEREC Advice Assistance to NRAs No No No

(...) (...) (...) (...) (...)

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Conclusion

• BEREC as formalization of network trend

• limited delegation: weaknesses of BEREC, strength of national regulators

• new structures, old problems• accountability mechanisms• stakeholders’ position