Explanatory Memorandum to COM(2016)591 - Body of European Regulators for Electronic Communications - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)591 - Body of European Regulators for Electronic Communications. |
|---|---|
| source | COM(2016)591  |
| date | 14-09-2016 |
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
In its Communication of May 2015, A Digital Single Market Strategy for Europe 1 (‘the DSM Strategy’), the Commission envisaged presenting proposals in 2016 for an ambitious overhaul of the regulatory framework for electronic communications. The aim of the overhaul is inter alia to ensure a more effective regulatory institutional framework in order to make the telecoms rules fit for purpose as part of the creation of the right conditions for the digital single market. These include the deployment of very high capacity connectivity networks, more coordinated management of radio spectrum for wireless networks and creating a level playing field for advanced digital networks and innovative services. The communication pointed out that the changing market and technological environment make it necessary to strengthen the institutional framework by enhancing the role of the Body of European Regulators for Electronic Communications (‘BEREC’).
In its Resolution ‘Towards a Digital Single Market Act’ 2 , the European Parliament called on the Commission to integrate further the digital single market by ensuring that a more efficient institutional framework is in place. It can do this by strengthening the role, capacity and decision-making powers of BEREC in order to allow it (i) to foster the consistent implementation of the regulatory framework for electronic communications, (ii) to enable an efficient oversight of BEREC over the development of the single market and (iii) to help it to resolve cross-border disputes. The European Parliament also stressed, in this regard, the need to improve the financial and human resources and further enhance the governance structure of BEREC.
This proposal has to be read in conjunction with the proposal for Directive of the European Parliament and of the Council establishing the European Electronic Communications Code (‘the Directive’). That proposal entrusts BEREC with additional tasks that would help to ensure that the regulatory framework is implemented consistently. This in turn would foster the development of the electronic communications market throughout the Union. Furthermore, BEREC would also contribute to the promotion of access and take up of very high capacity data connectivity, of competition in the provision of electronic communications networks and services as well as to the promotion of the interests of the citizens of the Union. This proposal aims to strengthen the institutional role of BEREC and enhance its governance structure by turning it into an agency in order to make it fit for the purpose of carrying out its future tasks.
Since taking up its responsibilities in 2010 and becoming fully functional in 2011, BEREC and the BEREC Office (‘the BEREC Office’) have made a positive contribution to the consistent implementation of the regulatory framework. They have also provided valuable technical expertise to the national regulatory authorities (‘NRAs’) and EU institutions. Regulation (EU) No 2015/2120 recently set out additional tasks for BEREC. These are issuing guidelines on the fulfilment of the obligations of NRAs in relation to open internet access, as well as issuing opinions on draft implementing acts to be adopted by the Commission in relation to Union-wide roaming and certain reporting obligations. The proposal for a Directive accompanying this proposal entrusts BEREC with further new tasks, such as playing a greater role in the consultation mechanism for market regulatory remedies, providing guidelines for NRAs on geographical surveys, developing common approaches to meeting transnational end-user demand, delivering opinions on draft national measures on assignments of rights of use for radio spectrum (the radio spectrum ‘peer review’), and setting up a register on the extraterritorial use of numbers and cross-border arrangements and one on providers of electronic communications networks and services.
BEREC and the BEREC Office have had a significantly enhanced role, in particular in cross-border matters (such as machine-to-machine (M2M) services or transnational demand for business users) and gained experience in ensuring a consistent implementation of the regulatory framework. It seems appropriate and necessary to build on this experience by turning both together into a fully fledged agency. The new agency, which will have a broader mandate, should continue the work of BEREC and continue the pooling of expertise from NRAs. Given that BEREC’s brand identity is already well established and we seek t o build upon it plus in light of the not insiginificant costs of changing its name, the new agency should retain the name of BEREC.
By enhacing the role of BEREC in the field of electronic communications and by aiming to align its structure and governance, operation, programming and accountability with the Joint Statement of the European Parliament, the Council and the Commission on decentralised agencies of 19 July 2012 (‘the Common Approach’) 3 , we are ensuring that the proposal serves to support Union's priorities.
• Consistency with existing policy provisions in the policy area
The clear objectives of BEREC make this proposal highly synergetic with the other initiatives included in the DSM Strategy. This is because connectivity services provided over electronic communications networks serve as the backbone for the distribution of digital products and services.
The proposal complements the existing sector-specific regulation. Proposed radio spectrum tasks for BEREC take into account the existing instruments in the area, in particular the Radio Spectrum Decision 676/2002/EC, the Radio Spectrum Policy Group Decision 2002/622/EC and Decision 243/2012/EU establishing a multiannual radio spectrum policy programme (RSPP).
It also incorporates in the BEREC Regulation the tasks assigned to BEREC in the recently adopted Regulation (EU) 2015/2120, which sets out rules for ensuring open internet and abolishing roaming surcharges.
By the end of 2016, the Commission is expected to present a review proposal for the Directive on privacy and electronic communications 4 . The scope of the current proposal for a Regulation may need to be adjusted in light of the outcome of the future review proposal.
The aim of this proposal is to provide BEREC with an appropriate and efficient governance structure, mandate and the tools it needs to ensure a consistent implementation of the regulatory framework. In this respect, it complements other electronic communications legal and policy instruments.
BEREC may carry out its tasks as necessary in cooperation with other Union bodies, agencies, offices and advisory groups, in particular the Radio Spectrum Policy Group, the European Data Protection Board, the European Regulators Group for Audiovisual Media Services and the European Union Agency for Network and Information Security; as well as with existing committees (such as the Communications Committee and the Radio Spectrum Committee).
• Consistency with other Union policies
The DSM Strategy is one of the 10 priorities the new Commission set out in 2014. This proposal is also in line with other top priorities of the Commission, in particular other initiatives to make the internal market deeper and fairer and to stimulate investment, create jobs and foster sustainable growth.
Some of BEREC’s tasks build on and complement existing Union law in several areas. One such task is to provide opinions on draft national measures related to the internal market procedures for market regulation. These continue to be based on the principles of competition law. Another such task is to provide guidelines on geographical surveys of network deployments. These also provide useful information for State aid purposes, enhancing the coherence between the two policies.
Moreover, the proposal aims at BEREC becoming a Union decentralised agency and aligns it with the principles of the Common Approach.
Consistency with international law obligations
If necessary when carrying out its tasks, BEREC may cooperate with competent authorities of third countries and/or with international organisations. This cooperation should be based on working arrangements, which should respect the Union's international relations and should not create legal obligations incumbent on the Union and its Member States.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The proposal is based on Article 114 of the Treaty, as it relates to the development and functioning of the internal market for electronic communications.
• Subsidiarity (for non-exclusive competence)
The Union needs to act to address inconsistencies in the application of the current framework and the shortcomings of the existing institutional set-up as well as the inconsistencies in the distribution of responsibilities among Member States, NRAs and the Commission. Market fragmentation is not solely to blame on the current regulatory set-up in the Union. However, it has become apparent over the past few years that the lack of consistency in telecoms regulation is, at least partly, due to the current institutional set-up and the way the various institutional players (mainly the NRAs, BEREC and the Commission) interact and can influence the regulatory outcome. Giving BEREC strengthened powers in the area of ex ante market regulation will enhance legal certainty and contribute to regulatory consistency.
Market and technological developments also mean that there are a number of cross-border aspects which required regulatory consistency across Member States. A Union body can deal better with these aspects than individual Member States. This is particularly true for services such as M2M. These services should be provided in such a way as to be able seamlessly to cross national boundaries. There are also still national barriers to the provision of cross-border business communications services. This is a significant missed opportunity for the functioning and development of the internal market.
It is a common and shared interest to ensure harmonised, consistent and efficient implementation of the regulatory framework with the support of BEREC. The Member States cannot therefore sufficiently achieve the objectives of this proposal. They can be achieved better at Union level. The Union may therefore adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.
• Proportionality
The proposal complies with the proportionality principle, in particular with regard to the objectives and tasks of BEREC. It aims to ensure the consistent implementation of the regulatory framework, thus contributing to the development of the electronic communications market throughout the Union, the promotion of access to and take-up of both fixed and mobile very high capacity data connectivity, of competition in the provision of electronic communications networks and services and of the interests of the citizens of the Union. BEREC should assist the Commission and NRAs; provide guidelines in order to ensure consistency of NRAs measures; issue opinions through efficient internal market procedures on draft national measures; keep registers of network and services providers and numbers with extraterritoriality use; adopt binding decisions on two cross-border matters: the identification of transnational markets and a contract summary template. BEREC would have quasi-binding powers in relation to the internal market procedures for draft national measures on market regulation (the ‘double-lock’ system) and the establishment of a single maximum termination rate for the Union.
The new agency should continue the work of BEREC and continue pooling the expertise of NRAs, which remain at the core of the agency’s work and are members of its Management Board. NRAs will continue to do most of the work relating to the implementation of the regulatory framework.
In particular regarding access regulation, the NRAs remain competent to ensure that market failures are addressed with appropriate remedies and that regulation helps achieve the common policy objectives. The proposed rules provide regulators with additional tools to address the current connectivity challenges, but the way they are to be used depends on national circumstances which are for national regulators to assess. The reason for the targeted strengthening of the regulatory oversight, mainly by giving BEREC a greater role in such an oversight process, is the evident lack of consistency in the application of current rules, when consistency is crucial for the internal market to function properly.
Radio spectrum management also remains the competence of Member States. The proposed rules provide an overall framework for coherent radio spectrum management across the Union, while Member States may apply the rules taking national circumstances into account. Given the major cross-border implications of radio spectrum management and its wider impact on connectivity in the internal market, certain coordination procedures at Union level are necessary.
As a regulation, the proposed instrument will apply directly in the Union. The financial and administrative burden on the Union, national governments and economic operators will therefore be minimised and proportionate to the objective of the proposal. It enhances the proportionality of the current situation in which a Union agency was set up mainly to support BEREC. It ensures that the new agency provides further added value and is aligned with Union policy priorities, in particular the DSM Strategy.
In view of its objectives and in accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, this regulation does not go beyond what is necessary in order to achieve those objectives.
• Choice of the instrument
Only a regulation having direct application can provide for the setting up of a Union decentralised agency and for setting out its tasks and objectives, thus providing the necessary degree of efficiency and uniformity needed to implement the regulatory framework.
The same legal instrument was chosen for the setting up of BEREC and the Office (Regulation (EC) 1211/2009). This regulation aims to amend and expand the provisions of Regulation (EC) 1211/2009. Since the amendments to be made are substantial, that act should, in the interests of clarity, be replaced and repealed.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
• Ex-post evaluations/fitness checks of existing legislation
The Commission carried out an ex post evaluation (‘REFIT’), which assessed the effectiveness, efficiency, relevance, coherence and EU added value of the BEREC Regulation and of other parts of the regulatory framework. It pinpointed areas where there is potential for simplification, without undermining their objectives. A previous evaluation of BEREC and the Office 5 was also carried out in 2012-2013 in accordance with Article 15 of Regulation (EC) 1211/2009. Its results have been incorporated into the ex post evaluation.
Overall, the staff working document accompanying the proposal and assessing the regulatory fitness of the current rules concludes that the regulatory framework for electronic communications has broadly achieved its general objective of ensuring a competitive sector providing significant end-user benefits. Its main specific objectives — promoting competition, developing the internal market and cultivating end-user interest — remain relevant. However, it appears necessary to review the regulatory framework, including the BEREC Regulation, in order to address the growing need for increased connectivity of the digital single market and to streamline provisions taking into account market and technological developments.
The findings, according to the specific evaluation criteria, can be summarised as follows.
Relevance — As far as the role and functioning of other important institutional players is concerned, BEREC must, in accordance with the provisions in force, pursue the objectives of the framework. In particular, it must ensure consistent implementation of the regulatory framework in order to contribute to the development and better functioning of the internal market. With this objective and its broader mandate, BEREC’s relevance is increasing, even though there was no consensus in the public consultation on how to reflect this increase in regulatory terms.
Effectiveness — There were mixed views in the public consultation on the telecoms review as regards the effectiveness of BEREC’s role in supporting consistent outcomes. Some stakeholders see BEREC’s independent technical advice and its role in the market review process in a positive light. Others think that its structure as a group of NRAs without legal personality undermines BEREC’s incentives to work to achieve internal market objectives as opposed to the individual or collective objectives of its national members. Respondents said that BEREC needed to be more proactive on key topics. They also said that as a result of its current institutional set-up, BEREC often opts for greater flexibility or the lowest common denominator instead of adopting a harmonised approach for the single market.
With regard to its current tasks, in view of the Opinion on the Review of the EU Electronic Communications Regulatory Framework 6 , BEREC has identified some areas in which it could play a greater role. For example, broader scope of BEREC Opinions under Article 7 and 7a, issues of a cross-border nature (such as international roaming), benchmarking the quality of internet access services at Union level, and developing technical guidelines.
Regarding the alignment of the goals of the BEREC Office as a Union agency with current Union priorities, the evaluation concluded that, by supporting BEREC, the current functions of the BEREC Office should ultimately contribute to the development of the single market and the consistent implementation of the rules. Nonetheless, the situation is unique, in which an agency was set up to exclusively perform a support function for another regulatory body set up under Union law. This presents certain challenges because, despite its relatively limited functions, the BEREC Office has to follow the same detailed set of rules that apply to all Union decentralised agencies (financial, staff/implementing rules, procurement, reporting, etc.).
Efficiency — It was not possible to carry out a precise cost calculation, but the evaluation has shown that the benefits of the framework — for most operators, end-users and society as a whole — greatly outweigh the costs of implementing it.
In many respects, the BEREC Office is not in line with the principles of the Common Approach. The limited tasks and size of the Office compared to other Union agencies have negative implications for attracting and retaining staff and for organisational aspects. The current two-tier structure also results in inefficiencies. Although it is difficult to quantify such inefficiencies, the two-tier structure complicates matters and creates an administrative burden; for example, two separate annual reports and two work programmes need to be adopted — one by the Board of Regulators for BEREC and one by the Management Committee for the Office.
The evaluation has identified a number of issues that could be simplified and streamlined (the delegation of appointing authority powers, longer or extendable mandates for the Chair, majority voting rules, adequate resources, streamlining of the Management Committee and longer consultation periods or a two-stage consultation process for key policy matters).
EU added value — The EU added value of setting up BEREC, in particular in terms of its advising the EU institutions, is linked to the functioning of the internal market for electronic communications. In general, this is positively perceived, but BEREC’s effectiveness is at times questioned. Being more effective would increase its added value. The added value of the Office as an Union agency that supports BEREC is another relevant aspect.
Coherence — Overall, the various instruments constituting the regulatory framework have complemented each other. However, the evaluation has identified a limited number of internal inconsistencies, such as the mismatch between the tasks of the independent NRAs and BEREC’s tasks. This is because BEREC is sometimes expected to issue opinions at European level in areas, for which not all its NRA members are competent at national level. The evaluation has also shown that on some occasions the coordination between BEREC and the Commission has proved challenging. This was the case with regard to giving information to and getting information from BEREC and the Office on termination rates and roaming. There is room for improvement, so that each organisation can efficiently perform its tasks.
• Stakeholder consultations
A 12-week open public consultation was launched on 11 September 2015 to get input for the evaluation process to assess the current rules and to seek views on possible adaptations to the framework in the light of market and technological developments. It covered a general evaluation of the current framework and a detailed evaluation and review of the specific parts of the framework. They are:
• network access regulation,
• radio spectrum management and wireless connectivity,
• sector-specific regulation of communications services,
• universal service rules,
• institutional set-up and governance.
The consultation was both broad and detailed, with extensive input from consumers, providers of electronic communications networks and services, national and EU operator associations, civil society organisations, broadcasters, technology providers, internet and online service providers, businesses relying on connectivity and wider digital economy players, national authorities at all levels, national regulators and other interested stakeholders. Input came from stakeholders affected by the policy, those who have to implement it and those with a stated interest in the policy. The consultation received a total of 244 online replies from stakeholders in all Member States and from outside the Union. Halfway through, there was a public hearing on 11 November 2015.
In addition to the public consultation BEREC itself contributed to the evaluation and the review process and published its opinion in December 2015 7 . The RSPG also gave its opinion on the DSM Strategy and the Framework Review 8 .
The following trends emerged from the consultation process.
• Good connectivity is perceived as a necessary condition for the digital single market. Many respondents highlighted the need for policy measures and possible adjustments to current policy and regulatory tools to support the deployment of infrastructure in line with future needs.
• A number of respondents said that the current regulatory framework does not benefit much the internal market. There is a general perception that the regulatory framework needs to be adjusted to the current market dynamics. Nonetheless, many respondents recognised that the liberalisation of the telecoms markets had improved matters, in particular in terms of end-user benefits and competition within most national markets.
• With regard to radio spectrum, respondents recognised the importance of wireless connectivity and wireless broadband. In general, industry, which is in favour of a more coordinated approach, seeks additional certainty for investments and possibilities to develop new wireless and mobile communications, including 5G, throughout the Union.
• While the continuing role of NRAs and radio spectrum management authorities is widely acknowledged, almost half of the respondents stressed that the institutional set-up at Union level should be adjusted to ensure better legal certainty and accountability. They advocated the following changes:
• a clearer division of powers between the different institutions (to avoid overlapping),
• making sure that institutions are politically and legally accountable for their decisions,
• a high level of transparency in decision-making (greater stakeholder involvement).
As part of the evaluation process the Commission also commissioned a number of studies. They included public workshops that allowed stakeholders to comment and provide feedback on the ongoing evaluation work.
• On 6 April 2016 a public workshop was held to validate the interim findings of a study done by WIK, IDATE and Deloitte on ‘regulatory, in particular access, regimes for network investments models in Europe’ (SMART 2015/0002).
• On 2 May 2016 a public workshop was held to validate the interim findings of a study done by WIK, CRIDS and Cullen on ‘Substantive issues for review in the areas of market entry, management of scarce resources and general end-user issues’ (SMART 2015/0003).
• Collection and use of expertise
• - Policy recommendations from other EU institutions, in particular the European Parliament 9 and the European Council 10 .
• - Three review studies.
– ‘Support for the preparation of the impact assessment accompanying the review of the regulatory framework for e-communications’ (SMART 2015/0005).
– ‘Regulatory, in particular access, regimes for network investment models in Europe’ (SMART 2015/0002).
– ‘Substantive issues for review in the areas of market entry, management of scarce resources and general consumer issues’ (SMART 2015/0003).
• - In addition, a number of other studies have provided input to the review processs. These studies are listed in section 6.1.4 of the Impact Assessment.
• - A high-level expert panel as part of of study SMART 2015/0005 11 .
• Impact assessment
The executive summary of the Impact Assessment and the positive opinion of the Regulatory Scrutiny Board can be found on the Commission website 12 .
The following governance options have been examined. The preferred option is Option 3, although the alignment of the structure of BEREC with the Common Approach is also considered in Option 2 13 .
Option 1 — No change — baseline scenario
This option is based on the current provisions. The lack of current appropriate harmonisation of NRAs’ competences has an impact. This is because the legislator has given BEREC a role in areas in which competence at national level is not harmonised for its members, such as the resolution of cross-border disputes.
Option 2 — Enhanced advisory role and strengthened competences
This option envisages some adjustments to the current rules on the basis of the experience of the implementation of the framework in recent years and of the REFIT exercise, in particular strengthening the role of independent NRAs by laying down a minimum set of competences for those NRAs across the Union.
At Union level, BEREC should extend its advisory role to the areas in which the independent NRAs are competent in order to bring its tasks into line with those of the NRAs. However, to make it more efficient and provide more stable management, BEREC’s governance structure would be adapted to bring it closely into line with the Common Approach. This means that a body with legal personality would perform the regulatory functions under BEREC’s aegis.
A new Management Board would be set up to oversee the general orientations for the agency's activities, replacing the current Board of Regulators and Management Committee. A more stable governance structure is envisaged by appointing a chairperson (to be selected from amongst the members of the Management Board) for a longer term of office (currently the term is one year). The Executive Director will have more powers than the current Administrative Manager of the Office and will be selected from a list of candidates proposed by the Commission following an open selection procedure as envisaged under the Common Approach and as in other agencies.
Option 3 — Advisory role with certain pre-normative powers and better market review process and spectrum assignment of right of use for radio spectrum
This option contains most aspects of Option 2, in particular the minimum set of harmonised competences (including a competence to define the regulatory and market-shaping aspects of electronic communications network and services assignments of rights of use for radio spectrum) and the alignment of NRAs’ and BEREC’s tasks, as well as the substantial alignment of BEREC’s governance structure with the Common Approach .
BEREC will be given some additional tasks, such as powers to adopt binding decisions on the identification of transnational markets and on a contract summary template; quasi-binding powers in relation to the internal market procedures for draft national measures on market regulation (the ‘double-lock’ system – see below) and the establishment of a single maximum termination rate for the Union; and the issuing of guidelines in a number of areas: geographical surveys, common approaches to meeting transnational demand, minimum criteria for reference offers, common criteria for the management of numbering resources, quality-of-service parameters, applicable measurement methods and the technical details of the cost model to be applied by NRAs when setting maximum symmetric termination rates. It will also be given the power to request information directly from operators.
BEREC will also be in charge of setting up a register for the extraterritorial use of numbers and cross-border arrangements and another register of providers of electronic communications networks and services. It will also assist the Commission and NRAs in the area of standardisation by helping them identify a threat to end-to-end connectivity or to effective access to emergency services. This could be done by imposing existing standards and setting new standards.
To improve the current situation, in which the Commission and BEREC have only non-binding powers with regard to remedies, a ‘double-lock’ system is proposed. In such a system, if BEREC and the Commission agree on their position regarding the draft remedies an NRA proposes, the Commission could require the NRA to amend or withdraw the draft measure and, if necessary, to re-notify the market analysis. A ‘peer review’ system within BEREC will also be introduced as a new coordination mechanism to improve efficiency and coherence amongst Member States with regard to regulatory market aspects of assignments of rights of use for radio spectrum.
Option 4 — EU regulator with certain implementation/execution powers
This option looks at setting up an EU regulator, as a reinforced agency with the necessary resources to accommodate a transfer of implementing powers, including supervision and enforcement powers. It could act with binding powers in areas in which it is necessary to ensure the uniform implementation of EU rules. One such area is new pan-EU or global services, currently largely unregulated or subject to unclear regulatory frameworks (M2M , OTT and other areas of great importance to the Union, such as roaming or transnational markets).
With regard to radio spectrum, there would also be a preliminary peer review mechanism involving the EU regulator, possibly with a Commission veto. The EU regulator could also coordinate binding pan-European assignment procedures for specific bands. Finally, the agency would also institutionalise a good office mediation service for cross-border interference and regulatory issues.
• Regulatory fitness and simplification
The policy measures proposed under the preferred option are in line with the REFIT agenda because they aim to simplify and reduce the administrative burden in line with the findings of the evaluation of the REFIT potential of the review. Several of the proposed changes in governance and other policy areas aim to make rules clear; enable parties to easily understand their rights and obligations; and to avoid overregulation and administrative burdens.
With a view to having a more efficient and streamlined institutional set-up and taking the REFIT evaluation into account, the proposal contains a number of changes that would bring BEREC into line with the Common Approach and the structure of other Union agencies. The proposal that BEREC becomes a Union decentralised agency should achieve certain level of efficiency gains and synergies, in order to partly offset the need for additional resources to fulfil the new tasks entrusted to BEREC.
- A Union decentralised agency will be set up with an appropriate structure and governance, mandate and powers. It will strengthen legal and political accountability because all decisions (regulatory, administrative, financial, etc.) will now be adopted under the aegis of a Union agency with legal personality.
- The governance structure will be simplified by replacing the two current managing structures (the Board of Regulators for regulatory decisions and the Management Committee for administrative and financial decisions) by a single Management Board. This will reduce the administrative burden by putting an end to the current duplication of agendas, working programmes, annual reports, document registers, member appointments, etc.
- An Executive Director will be appointed at the head of the agency, to be the legal representative of BEREC and responsible for the performance of the tasks assigned to the agency. In particular, he/she will have delegated ‘appointing authority powers’. This would make management of the staff of the agency more efficient (under the current BEREC Regulation, these powers are given to the Vice-Chair, whose term of office is one year, and they cannot be delegated/sub-delegated).
- The Chairperson of the Management Board (four years renewable, currently one year) and the Executive Director (five years renewable, currently three years renewable) will have longer terms of office to ensure the necessary continuity and stability.
In conclusion, BEREC would be better equipped to help the Commission and the NRAs, and efficiency gains derived from the areas highlighted above would be achieved. This proposal contributes to an efficient Union system of regulatory authorities in the digital single market and should provide the necessary support for an efficient implementation of the revised telecoms framework.
• Fundamental rights
The proposal also takes full account of the fundamental rights and principles recognised by the Charter of Fundamental Rights of the European Union. In particular, the proposed measures, including setting up BEREC, aim to increase connectivity with a modernised set of end-user protection rules. This will in turn ensure non-discriminatory access to any content and services, including public services. It will also help promote freedom of expression and of business and enable Member States to comply with the charter at a much lower cost in the future.
4. BUDGETARY IMPLICATIONS
BEREC, which is to be set up on the basis of the existing BEREC and BEREC Office, is given a number of tasks which aim to ensure a consistent implementation of the regulatory framework, thus contributing to the development of the electronic communications market throughout the Union, the promotion of access to and take-up of very high capacity data connectivity by all Union citizens and businesses, of competition in the provision of electronic communications networks and services and of the interests of the citizens of the Union.
The total financial resources necessary for BEREC to fulfil its mission amount to EUR 14.135 million for the period 2019-2020 14 . In addition to the contribution from the Union, BEREC may collect charges for publications and other services provided, contributions from third countries or the electronic communications regulatory authorities of third countries participating in the work of BEREC and voluntary contributions from the Member States and NRAs 15 .
The new agency is expected to continue in the future the current service agreements with the Commission (accounting officer and using certain applications and tools) and with other Union agencies (in particular with ENISA as regards off-site storage of back-up data and the internal control coordinator), which could be even further expanded to new areas in order to achieve further efficiency gains and synergies.
In addition to the existing number of staff members, BEREC should calculate 11 contractual agents and 7 seconded national experts to make up a total of 44 staff members by the end of the period 2019-2020 16 . Based on the Impact Assessment, and without prejudging the next MFF, the total additional staff needed by BEREC in order to fulfil its new tasks under the enlarged mandate is estimated at 34 FTEs, envisioning an overall staff figure of 60 FTEs at the end of the implementation period 2019-2022.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
In line with the Common Approach, the current proposal foresees that the Commission must perform an evaluation within five years of entry into force of this regulation, and every five years after that, to assess, in compliance with the Commission guidelines, BEREC’s performance in relation to its objectives, mandate, tasks and location(s). The evaluation should, in particular, address the possible need to modify the mandate of BEREC and the financial implications of any such modification. If the Commission considers that the continuation of BEREC is no longer justified with regard to its assigned objectives, mandate and tasks, it may propose that this regulation be amended accordingly or be repealed. The Commission must report on the findings of the evaluation to the European Parliament, the Council and the Management Board. The findings of the evaluation must be made public.
BEREC would also issue annual activity reports evaluating the results of its activities throughout the year. Annual activity reports must be transmitted to the European Parliament, the Council, the Commission and the Court of Auditors and must be made public.
In addition, the Commission will continue to ensure that the implementation of the regulatory framework is monitored on the basis of the following.
The European Digital Progress Report
The European Digital Progress Report (EDPR), covering 28 Member States, provides comprehensive data and analysis of market, regulatory and consumer developments in the digital economy. It combines the reports and all evidence published for the Digital Scoreboard 17 with the Telecom Implementation Report, and adds country reports. In this way, it draws on evidence from:
– Digital Scoreboard. This measures the progress of the European digital economy. It draws on data provided by the NRAs, Eurostat and additional relevant sources and includes data relating to the general situation regarding all aspects of the Digital Economy Society Index in the EU Member States 18 . The indicators included in the report make it possible to compare progress across European countries as well as over time.
– Telecom reports on European electronic communications regulation and markets. These provide comprehensive data and analysis of market, regulatory and consumer developments in the sector.
• Explanatory documents (for directives).
• Detailed explanation of the specific provisions of the proposal
Regulation (EC) No 1211/2009 set up the Body of European Regulators for Electronic Communications (BEREC) and the Office and the tasks of each. This proposal broadens the current mandate of BEREC and turns it into a fully fledged agency equipped with the necessary tools and adequate resources to achieve its objectives and carry out its tasks.
Establishment, scope and objectives:
Chapter I ‘Objectives and tasks’
Article 1 sets up BEREC and provides for the scope of application of the regulation, definitions and the objectives of BEREC, which should aim to achieve the same objectives as NRAs.
Article 2 enumerates BEREC’s tasks. It adds that BEREC may cooperate with Union bodies, agencies, offices and advisory groups, with competent authorities of third countries and/or with international organisations if necessary and should consult interested parties if appropriate.
Chapter II ‘Administrative and Management Structure’
Article 3 concerns the administrative and management structure of BEREC, which comprises a Management Board, an Executive Director, Working Groups and a Board of Appeal.
Articles 4-5 stipulate that the Management Board is to be composed of the head, or a member of the collegiate body, of each NRA, and two representatives of the Commission, all with voting rights. It also sets out its functions. In particular, the Management Board should delegate relevant appointing authority powers to the Executive Director. The Executive Director should be authorised to sub-delegate those powers, defining the conditions under which this delegation of powers can be suspended.
Article 6 stipulates that the Management Board elects a Chairperson and a Deputy Chairperson from among its members, by a majority of two thirds and for a four-year term of office, renewable once.
Articles 7-8 set out the minimum number of ordinary meetings a year for the Management Board (two) and its voting rules (majority by default).
Articles 9 sets out the responsibilities of the Executive Director, who should manage the agency and be its legal representative. The Executive Director is accountable to the Management Board and shall report to the European Parliament and may be invited to report to the Council on the performance of his/her duties.
Articles 10 sets out that the Management Board may set up working groups as necessary, which would be coordinated and moderated by a member of the BEREC staff. For the establishment of certain working groups, lists of qualified experts should be ready beforehand.
Articles 11-14 set up the Board of Appeal and set out its composition and the appointment of its members, who should be independent and not perform any other duties within BEREC. Any natural or legal person, including NRAs, may appeal against a binding decision issued by BEREC. Such appeals should not have a suspensory effect, but the Board of Appeal may suspend the application of the decision.
Chapter III ‘Annual and multi-annual programming’
Article 15 sets out the procedure for the adoption of the annual and multi-annual programming document. It should include the strategy for relations with Union bodies, agencies, offices and advisory groups, with competent authorities of third countries and/or with international organisations.
Articles 16-17 provides for the establishment of BEREC’s budget and its structure in terms of revenue and expenditure.
Articles 18-20 state that the Executive Director is responsible for implementing BEREC’s budget and sets out the procedure for the presentation of accounts and discharge. The Management Board should adopt the financial rules applicable to BEREC.
Chapter IV ‘Staff’
Article 21 states that the Staff Regulations and the Conditions of Employment of Other Servants and implementing rules adopted to give effect to them shall apply to the BEREC staff.
Article 22 sets out the procedure for the Management Board to appoint the Executive Director from a list of candidates proposed by the Commission, for a five-year renewable term of office, as well as for the extension of his/her term of office or his/her removal from office.
Article 23 states that BEREC can make use of seconded national experts or other staff not employed by BEREC, to whom the Staff Regulations and the Conditions of Employment of Other Servants will not apply.
Chapter V ‘General provisions’
Articles 24-25 stipulate that BEREC should have legal personality and be a Union body. The Protocol on the Privileges and Immunities of the European Union applies to BEREC and its staff.
Article 26 states that, where necessary, BEREC may cooperate with competent Union bodies, agencies, offices and advisory groups; with competent authorities of third countries and/or with international organisations. This cooperation should be based on working arrangements, which should receive prior approval from the Commission. In line with the Common Approach, the Commission and the agency should conclude an appropriate working arrangement aiming at ensuring that BEREC operates within its mandate and the existing institutional framework. This article also stipulates that BEREC is open to the participation of regulatory authorities of third countries competent in electronic communications that have entered into agreements with the Union to that effect.
Article 27 states that Regulation (EC) No 1049/2001 applies to documents BEREC holds and that the processing of personal data by BEREC will be subject to Regulation (EC) No 45/2001. It also states that BEREC may engage in communication activities on its own initiative within its area of competence.
Article 28 refers to the confidentiality rules to be followed by BEREC.
Article 29 refers to the security rules for protecting classified and sensitive non-classified information to be adopted by BEREC.
Article 30 stipulates that the Commission and the NRAs give BEREC information (and vice versa). It also stipulates that, as a last resort, BEREC may request necessary information from other authorities and undertakings.
Article 31 stipulates the need for the members of the Management Board, the Executive Director, seconded national experts and other staff not employed by BEREC to make a declaration indicating their commitment and the absence or presence of any direct or indirect interest which might be considered prejudicial to their independence; as well as for these and experts participating in working groups to declare any interest which might be considered prejudicial to their independence in relation to the items on the agenda.
Article 32 stipulates that BEREC accede to the Interinstitutional Agreement of 25 May 1999 concerning internal investigations by the European Anti-fraud Office (OLAF) and adopt appropriate provisions applicable to all employees of BEREC.
Article 33 includes provisions on BEREC’s contractual liability.
Article 34 stipulates that the activities of BEREC be subject to the inquiries of the European Ombudsman in accordance with Article 228 of the Treaty.
Article 35 stipulates that Regulation No 1/58 applies to BEREC and that the Translation Centre of the bodies of the EU provide the translation services required for the functioning of BEREC .
Article 36 refers to the procedure for establishing the rules of procedure of the Board of Appeal, for which the Commission is conferred implementing powers.
Chapter VI ‘Transitional and final provisions’
Article 37 stipulates the need for a Headquarters Agreement to be concluded between BEREC and the Member State in which they are located. BEREC’s host Member State shall provide the conditions necessary to ensure the smooth and efficient functioning of BEREC, including multilingual, European-oriented schooling and appropriate transport connections.
Article 38 stipulates that the Commission must perform an evaluation within five years of entry into force of this regulation, and every five years after that, to assess, in compliance with the Commission guidelines, BEREC’s performance in relation to its objectives, mandate, tasks and location(s). The Commission must report on the findings of the evaluation to the European Parliament, the Council and the Management Board and they must be made public.
Article 39 stipulates that BEREC succeeds the Office set up under Regulation (EC) No 1211/2009 with regard to all ownership, agreements, legal obligations, employment contracts, financial commitments and liabilities. This article also sets out transitional provisions with regard to the Administrative Manager acting as interim Executive Director, the contract of the Administrative Manager, the composition of the Management Board and the discharge procedure.
Article 40 states that Regulation (EC) No 1211/2009 is repealed and references to it and to the BEREC Office are to be construed as references to this regulation and to BEREC.
Article 41 contains the standard clause for entry into force of the regulation and provides for the deferred application of some of its provisions.