Directive (EU) 2018/1972 of the European Parliament and of the Council (3) aims to create an internal market for electronic communications within the Union while ensuring a high level of investment, innovation and consumer protection through enhanced competition. That Directive also establishes a significant number of new tasks for the Body of European Regulators for Electronic Communications (‘BEREC’) such as issuing guidelines on several topics, reporting on technical matters, keeping registers, lists or databases and delivering opinions on internal market procedures for draft national measures on market regulation.
(2)
Regulation (EU) No 531/2012 of the European Parliament and of the Council (4) complements and supports, in so far as Union-wide roaming is concerned, the rules provided for by the regulatory framework for electronic communications and lays down certain tasks for BEREC.
(3)
Regulation (EU) 2015/2120 of the European Parliament and of the Council (5) lays down additional tasks for BEREC in relation to open internet access. Moreover, the BEREC Guidelines of 30 August 2016 on the Implementation by National Regulators of European Net Neutrality Rules have been welcomed as providing a valuable clarification of the guarantee of a strong, free and open internet by ensuring the consistent application of the rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights.
(4)
In view of the need to ensure the development of consistent regulatory practice and the consistent application of the Union’s regulatory framework for electronic communications, the Commission established, by Commission Decision 2002/627/EC (6), the European Regulators Group for Electronic Communications Networks and Services (ERG) to advise and assist the Commission in consolidating the internal market for electronic communications networks and services and, more generally, to provide an interface between national regulatory authorities (NRAs) and the Commission.
(5)
BEREC and the Office were established by Regulation (EC) No 1211/2009 of the European Parliament and of the Council (7). BEREC replaced the ERG and was intended to contribute, on one hand, to the development and, on the other, to the better functioning, of the internal market for electronic communications networks and services by aiming to ensure the consistent implementation of the regulatory framework for electronic communications. BEREC acts as a forum for cooperation among NRAs and between NRAs and the Commission in the exercise of the full range of their responsibilities under the Union regulatory framework. BEREC was established to provide expertise and to act independently and transparently.
(6)
BEREC also serves as a body for reflection, debate and advice for the European Parliament, the Council and the Commission in the field of electronic communications.
(7)
The Office was established as a Community body with legal personality to carry out the tasks referred to in Regulation (EC) No 1211/2009, in particular the provision of professional and administrative support services to BEREC. In order to support BEREC efficiently, the Office was given legal, administrative and financial autonomy.
(8)
By Decision 2010/349/EU (8), the Representatives of the Governments of the Member States decided that the Office would have its seat in Riga. The Seat Agreement between the Government of the Republic of Latvia and the Office entered into force on 5 August 2011.
(9)
In its communication of 6 May 2015 entitled ‘A Digital Single Market Strategy for Europe’, the Commission envisaged presenting proposals in 2016 for an ambitious overhaul of the regulatory framework for electronic communications focusing, inter alia, on a more effective regulatory institutional framework in order to make the rules on electronic communications fit for purpose as part of the creation of the right conditions for the digital single market. Those include the deployment of very high capacity networks, more coordinated management of radio spectrum for wireless networks and creating a level playing field for advanced digital networks and innovative services. That communication pointed out that the changing market and technological environment make it necessary to strengthen the institutional framework by enhancing the role of BEREC.
(10)
In its resolution of 19 January 2016 entitled ‘Towards a Digital Single Market Act’, the European Parliament called on the Commission to integrate the digital single market further by ensuring that a more efficient institutional framework is in place.
(11)
BEREC and the Office have made a positive contribution towards the consistent implementation of the regulatory framework for electronic communications. However, there are still significant disparities between Member States as regards regulatory practice, which affects companies engaged in cross-border business or active in a significant number of Member States, including where BEREC guidelines exist, but could be further developed. In order to further contribute to the development of the internal market for electronic communications throughout the Union as well as to the promotion of access to, and take-up of, very high capacity networks, competition in the provision of electronic communications networks, services and associated facilities and the interests of the citizens of the Union, this Regulation aims to strengthen the role of BEREC. Such a strengthened role would complement the enhanced role played by BEREC following Regulations (EU) No 531/2012 and (EU) 2015/2120 and Directive (EU) 2018/1972.
(12)
In light of market and technological developments, which often entail an increased cross-border dimension, and of the experience gained so far in seeking to ensure the consistent implementation in the field of electronic communications, it is necessary to build on the work of BEREC and the Office. Their governance and activities should be streamlined and adapted to the tasks that they are to carry out. Taking into account settled procedures and the new set of tasks assigned to BEREC and to the Office and in order to strengthen their effectiveness, additional stability for their management should be provided for and the decision-making process should be simplified.
(13)
BEREC should provide expertise and establish confidence by virtue of its independence, the quality of its advice and information, the transparency of its procedures and methods of operation, and its diligence in carrying out its tasks. BEREC’s independence should not prevent its Board of Regulators from deliberating on the basis of drafts prepared by working groups.
(14)
The new official name of the Office should be ‘Agency for Support for BEREC’ (the ‘BEREC Office’). The designation ‘BEREC Office’ should be used as the Agency’s short name. The BEREC Office should enjoy legal, administrative and financial autonomy. To that end, it is necessary and appropriate that the BEREC Office should be a body of the Union with legal personality that exercises the powers conferred upon it. As a Union decentralised agency, the BEREC Office should operate within its mandate and the existing institutional framework. It should not be seen as representing a Union position to an outside audience or as committing the Union to legal obligations.
(15)
Moreover, the rules on the governance and operation of the BEREC Office should, where appropriate, be aligned with the principles of the Joint Statement of the European Parliament, the Council and the European Commission of 19 July 2012 on decentralised agencies.
(16)
The Union institutions and the NRAs should benefit from BEREC’s assistance and advice, including on the relevant regulatory impact of any issue concerning the overall dynamics of digital markets or with regard to their relationship, discussions and exchanges with, and the dissemination of regulatory best practices to, third parties. In addition to its contribution to the Commission’s public consultation, BEREC should, when requested, advise the Commission in the preparation of legislative proposals. BEREC should also be able to provide advice to the European Parliament and to the Council, on their request or on its own initiative.
(17)
BEREC, as a technical body with expertise on electronic communications and composed of representatives from NRAs and the Commission, is best placed to be entrusted with tasks such as contributing to efficient internal market procedures for draft national measures as regards market regulation, providing the necessary guidelines to NRAs and other competent authorities in order to ensure common criteria and a consistent regulatory approach, and keeping certain registries, databases and lists at Union level. This is without prejudice to the tasks established for NRAs, which are closest to the electronic communications markets and their local conditions.
(18)
In order to carry out its tasks, BEREC should continue to pool expertise from NRAs. BEREC should aim to ensure the participation of all NRAs in the fulfilment of its regulatory tasks and its functioning. To strengthen BEREC, make it more representative and safeguard its expertise, experience and knowledge of the specific situation in the full range of national markets, each Member State should ensure that its NRA has adequate financial and human resources required to participate fully in the work of BEREC.
(19)
In light of the increasing convergence between the sectors providing electronic communications services, and the horizontal dimension of regulatory issues related to their development, BEREC and the BEREC Office should be allowed to cooperate with, and without prejudice to the role of, NRAs, other Union bodies, offices, agencies and advisory groups, in particular the Radio Spectrum Policy Group established by Commission Decision 2002/622/EC (9), the European Data Protection Supervisor established by Regulation (EU) 2018/1725 of the European Parliament and of the Council (10), the European Data Protection Board established by Regulation (EU) 2016/679 of the European Parliament and of the Council (11), the European Regulators Group for Audiovisual Media Services established by the Directive 2010/13/EU of the European Parliament and the Council (12), the European Union Agency for Network and Information Security established by Regulation (EU) No 526/2013 of the European Parliament and of the Council (13), the European GNSS Agency established by Regulation (EU) No 912/2010 of the European Parliament and of the Council (14), the Consumer Protection Cooperation Network established pursuant to Regulation (EC) No 2006/2004 of the European Parliament and the Council (15), the European Competition Network and European standardisation organisations, as well as with existing committees (such as the Communications Committee and the Radio Spectrum Committee). BEREC and the BEREC Office should also be able to cooperate with relevant competent authorities of Member States responsible for competition, consumer protection and data protection, and with the competent authorities of third countries, in particular, regulatory authorities competent in the field of electronic communications or groups of those authorities, as well as with international organisations when necessary for the carrying out of their tasks. BEREC should also be able to consult interested parties by means of public consultation.
(20)
BEREC should be entitled to establish working arrangements with competent Union bodies, offices, agencies and advisory groups, with competent authorities of third countries and with international organisations, which should not create legal obligations. The goal of such working arrangements could be, for instance, to develop cooperative relationships and exchange views on regulatory issues. The Commission should ensure that the necessary working arrangements are consistent with Union policy and priorities, and that BEREC operates within its mandate and the existing institutional framework and is not seen as representing the Union position to an outside audience or as committing the Union to international obligations.
(21)
BEREC should be composed of the Board of Regulators and working groups. The rotation of the role of Chair of the Board of Regulators is intended to ensure continuity of BEREC’s work. A rotation of the roles of Vice-Chairs representing various NRAs is also promoted.
(22)
BEREC should be able to act in the interests of the Union, independently from any external intervention, including political pressure or commercial interference. It is therefore important to ensure that the persons appointed to the Board of Regulators enjoy the highest guarantees of personal and functional independence. The head of an NRA, a member of its collegiate body, or the replacement of either of them, enjoy such a level of personal and functional independence. More specifically, they should act independently and objectively, should not seek or take instructions in the exercise of their functions, and should be protected against arbitrary dismissal. The function of the alternate on the Board of Regulators could also be performed by the head of the NRA, a member of its collegiate body, the replacement of either of them, or by another member of staff of the NRA, who acts on behalf of, and in accordance with the scope of the mandate of, the member of the Board of Regulators replaced.
(23)
Experience has shown that most of BEREC’s tasks are better carried out through working groups, which should always ensure equal consideration of all NRAs’ views and contributions. The Board of Regulators should therefore set up working groups and appoint their Chairs. NRAs should promptly respond to nomination requests in order to ensure the quick establishment of working groups, in particular those related to procedures with time-limits. The working groups should be open to the participation of experts from the Commission. The staff of the BEREC Office should support and contribute to the working groups’ activities.
(24)
If necessary, and on a case-by-case basis, the Board of Regulators and the Management Board should be able to invite any person whose opinion may be of interest to participate in their meetings as an observer.
(25)
Where appropriate and depending on the allocation of tasks to authorities in each Member State, the views of other competent authorities should be taken into consideration in the relevant working group, for example through consultation at national level or by inviting those other authorities to the relevant meetings where their expertise is needed. In any event, the independence of BEREC should be maintained.
(26)
The Board of Regulators and the Management Board should operate in parallel, with the former deciding mainly on regulatory matters and the latter on administrative matters such as the budget, staff and audits. In principle and in addition to the representatives of the Commission, the representatives of the NRAs on the Management Board should be the same persons as those appointed to the Board of Regulators, but NRAs should be able to appoint other representatives fulfilling the same requirements.
(27)
The appointing authority powers were previously exercised by the Vice-Chair of the Management Committee of the Office. This Regulation provides for the Management Board to delegate relevant appointing authority powers to the Director, who is authorised to sub-delegate those powers. This is intended to contribute to the efficient management of the staff of the BEREC Office.
(28)
The Board of Regulators and the Management Board should hold at least two ordinary meetings a year. In light of past experience and the enhanced role of BEREC, the Board of Regulators or the Management Board may need to hold additional meetings.
(29)
The Director should remain the representative of the BEREC Office with regard to legal and administrative matters. The Management Board should appoint the Director following an open and transparent selection procedure in order to guarantee a rigorous evaluation of the candidates and a high level of independence. The term of office of the Administrative Manager of the Office was previously three years. It is necessary that the Director has a sufficiently long mandate in order to ensure stability and delivery of a long-term strategy for the BEREC Office.
(30)
Commission Delegated Regulation (EU) No 1271/2013 (16) should apply to the BEREC Office.
(31)
The BEREC Office should provide all necessary professional and administrative support for the work of BEREC, including financial, organisational and logistical support, and should contribute to BEREC’s regulatory work.
(32)
In order to guarantee the BEREC Office’s autonomy and independence, and in order to provide support to the work of BEREC, the BEREC Office should have its own budget, most of which should derive from a contribution from the Union. The budget should be adequate and should reflect the additional tasks assigned and the enhanced role of BEREC and the BEREC Office. The financing of the BEREC Office should be subject to an agreement by the budgetary authority as set out in point 31 of the Inter-institutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management (17).
(33)
The BEREC Office should be adequately staffed for the purpose of carrying out its duties. All tasks assigned to the BEREC Office, including professional and administrative services supporting BEREC in carrying out its regulatory tasks, together with compliance with the financial, staff and other applicable regulations, and the increased weight of operational tasks required of the BEREC Office vis-à-vis administrative ones should be duly assessed and reflected in the resource programming.
(34)
In order to further extend the consistent implementation of the regulatory framework for electronic communications, the Board of Regulators, the working groups and the Management Board should be open to the participation of regulatory authorities of third countries competent in the field of electronic communications where those third countries have entered into agreements with the Union to that effect, such as EEA EFTA States and candidate countries.
(35)
In line with the principle of transparency, BEREC and the BEREC Office should, where relevant, publish information on their work on their webpage. In particular, BEREC should make public any final documents issued in carrying out its tasks, such as opinions, guidelines, reports, recommendations, common positions and best practices, as well as any study which is commissioned to support its tasks. BEREC and the BEREC Office should also make public up-to-date lists of their tasks and up-to-date lists of members, alternates and other participants in the meetings of their organisational bodies, and the declarations of interests made by the members of the Board of Regulators, the members of the Management Board and the Director.
(36)
BEREC, supported by the BEREC Office, should be able to engage in communication activities within its field of competence, which are not detrimental to BEREC’s core tasks. The content and implementation of the BEREC’s communication strategy should be consistent, objective, relevant and coordinated with the strategies and activities of the Commission and the other institutions in order to take into consideration the broader image of the Union. The BEREC Office’s communication activities should be carried out in accordance with relevant communication and dissemination plans adopted by the Management Board.
(37)
In order to carry out their tasks effectively, BEREC and the BEREC Office should have the right to request all necessary information from the Commission, the NRAs, and, as a last resort, other authorities and undertakings. Requests for information should provide reasons, should be proportionate and should not impose an undue burden on the addressees. NRAs should cooperate with BEREC and the BEREC Office and should provide them with timely and accurate information to ensure that BEREC and the BEREC Office are able to fulfil their tasks. BEREC and the BEREC Office should also, pursuant to the principle of sincere cooperation, share with the Commission, the NRAs and other competent authorities all necessary information. Where relevant, the confidentiality of information should be ensured. When assessing if a request is duly justified, BEREC should take into consideration if the information requested is related to the carrying out of tasks exclusively attributed to the relevant authorities.
(38)
The BEREC Office should establish a common information and communication system to avoid duplication of information requests and facilitate communications between all authorities involved.
(39)
In order to ensure a high level of confidentiality and to avoid conflicts of interests, the rules on those matters applying to members of the organisational bodies of BEREC and the BEREC Office should apply to their alternates.
(40)
Since this Regulation confers new tasks on BEREC and the BEREC Office and other Union legal acts may confer additional tasks, the Commission should carry out a regular evaluation of the operation of BEREC and the BEREC Office and the effectiveness of their institutional structure in a changing digital environment. If, as the outcome of that evaluation, the Commission finds that the institutional structure is not suited to the carrying out BEREC’s and the BEREC Office’s tasks, and, in particular, to ensure the consistent implementation of the regulatory framework for electronic communications, it should explore all possible options for improving that structure.
(41)
The Office which was established as a Community body with legal personality by Regulation (EC) No 1211/2009, is succeeded by the BEREC Office established by this Regulation as regards all ownership, agreements, including the Seat Agreement, legal obligations, employment contracts, financial commitments and liabilities. The BEREC Office should take over the staff of the Office whose rights and obligations should not be affected. In order to ensure continuity in the work of BEREC and the Office, their representatives, namely the Chair and Vice-Chairs of the Board of Regulators, the Management Committee and the Administrative Manager, should continue in office until the end of their term of office.
(42)
A significant number of consumers in most Member States continue to rely on traditional international communications such as telephony calls and SMS messages, despite an increasing number of consumers having access to number-independent interpersonal communications services for their international calling needs at lower charges than traditional services or without monetary payment.
(43)
In 2013 the Commission proposed an impact-assessed Regulation which included a provision with regulatory measures applicable to intra-EU communications. Additional data on the intra-EU communications market was collected from 2017 to 2018 by BEREC and by the Commission through a Commission study and the Eurobarometer. As shown by that data, significant price differences continue to prevail, for both fixed and mobile communications, between domestic voice and SMS communications and those terminating in another Member State in a context of substantial variations of prices between countries, providers and tariff packages, and between mobile and fixed voice communications. Providers of publicly available number-based interpersonal communications services often charge consumption based intra-EU communications prices that largely exceed the prices for domestic tariffs plus additional costs. On average, the standard price of a fixed or mobile intra-EU call tends to be three times higher than the standard price of a domestic call and the standard price of an intra-EU SMS message more than twice as expensive as a domestic one. However, those arithmetic averages hide significant differences across Member States. In some cases the standard price of an intra-EU call can be up to eight times higher than the standard price for domestic calls. As a consequence, customers in several Member States are exposed to very high prices for intra-EU communications. Those high prices mainly affect consumers, in particular those placing such communications infrequently or having a low volume of consumption, which represent the vast majority of the consumers using intra-EU communications. At the same time, several providers propose special offers particularly attractive for business customers and consumers with a significant consumption of intra-EU communications. Such offers are often not charged based on actual consumption and may consist in a certain number of intra-EU call minutes or SMS messages for a fixed monthly fee (add-on offers) or in the inclusion of a certain number of intra-EU call minutes or SMS messages in the monthly allowance of call minutes or SMS messages, either without any surcharge or with a small surcharge. However, the terms of those offers are often not attractive for consumers with only occasional, unpredictable or relatively low volumes of intra-EU communications. Consequently, those consumers risk paying excessive prices for their intra-EU communications and should be protected.
(44)
Moreover, high prices for intra-EU communications represent a barrier to the functioning of the internal market as they discourage seeking and purchasing goods and services from a provider located in another Member State. It is hence necessary to set specific and proportionate limits to the price that providers of publicly available number-based interpersonal communications services may charge consumers for intra-EU communications in order to eliminate such high prices.
(45)
When providers of publicly available number-based interpersonal communications services charge their consumers for intra-EU communications at rates wholly or partly based on the consumption of such services, including in cases of consumption-based deduction from a monthly or prepaid allowance for such services, those rates should not exceed EUR 0,19 per minute for calls and EUR 0,06 per SMS message. Those caps correspond to the maximum prices which currently apply, respectively, to regulated roaming calls and SMS messages. When roaming in the Union, consumers benefit from the protection of the euro-voice tariff and the euro-SMS tariff that have been progressively replaced by roaming ‘like at home’. Those caps are also considered to be a suitable benchmark for setting the maximum rate for regulated intra-EU communications for five years starting from 15 May 2019. The current level of the cap represents a simple, transparent and proven safety-net for protection against high prices and is suitable as a cap for retail prices of all regulated intra-EU communications. Both roaming calls within the Union and intra-EU calls share a similar cost structure.
(46)
The caps should allow the providers of publicly available number-based interpersonal communications services to recoup their costs, thus ensuring a proportionate intervention on both the mobile and fixed calls market. The caps will apply directly only to rates based on actual consumption. They should have a disciplining effect also on those offers where a certain volume of intra-EU communications is included without being charged separately as consumers have the choice to switch to a consumption-based tariff for their intra-EU communications. Intra-EU communication volumes which go beyond those included in a bundle and are charged separately should be subject to the caps. The measure should ensure, in a proportionate manner, that consumers with a low level of consumption of intra-EU communications are protected against high prices and should, at the same time, have only a moderate impact on providers.
(47)
Providers of publicly available number-based interpersonal communications services should be able to propose to their consumers alternative tariff offers for international communications with different rates for regulated intra-EU communications and consumers should be free to opt for such offers expressly, and to switch back any time and free of charge, even for offers to which consumers subscribed before the entry into force of such provisions. Only alternative offers for international communications, such as those covering all or some third countries, should, where accepted by a consumer, be able to free a provider from its obligation not to exceed the caps for regulated intra-EU communications. Other advantages, such as subsidised terminal equipment or discounts on other electronic communications services, offered by providers to consumers are a normal part of competitive interaction and should not affect the applicability of the price caps for regulated intra-EU communications.
(48)
Some providers of publicly available number-based interpersonal communications services may be significantly more affected than the majority of other providers in the Union by a price cap for regulated intra-EU communications. This could, in particular, be the case for those providers which generate a particularly high share of their revenues or operational profits with intra-EU communications or whose domestic margins are low compared to industry benchmarks. As a consequence of margin compression as regards regulated intra-EU communications, a provider might not be able to sustain its domestic pricing model. Such scenarios are highly unlikely to occur because the maximum prices are clearly above the costs for providing intra-EU communications. Nevertheless, in order to address such very exceptional scenarios in a proportionate manner, NRAs should be able to grant a derogation upon the request of such provider in justified and exceptional cases.
(49)
Any derogation should be granted only where a provider can demonstrate, against a relevant benchmark established by BEREC, that it is significantly more affected than most other providers in the Union and that that impact would significantly weaken that provider’s capacity to maintain its charging model for domestic communications. Where an NRA grants a derogation, it should determine the maximum price level that a provider could apply for regulated intra-EU communications and which would enable it to maintain a competitive price level for domestic communications. Any such derogation should be limited to one year and be renewable if the provider demonstrates that the conditions for a derogation continue to be fulfilled.
(50)
In light of the principle of proportionality, the applicability of the price caps for regulated intra-EU communications should be limited in time and should expire five years after its entry into force. Such a limited duration should allow proper assessment of the effects of the measures and evaluation to what extent there is an ongoing need to protect consumers.
(51)
In order to ensure Union-wide, consistent, timely and most effective protection of consumers negatively affected by the significant price differences of intra-EU communications, such provisions should be directly applicable and enshrined in a regulation. The most suitable regulation for that purpose is Regulation (EU) 2015/2120, which was adopted after an impact assessment which proposed, inter alia, a provision on intra-EU communications as a necessary means by which to complete the internal market for electronic communications. The likely impacts on providers’ revenues generated by the provision of intra-EU communications are further mitigated by the application of the roaming euro-voice tariff and euro-SMS tariff as caps to both fixed and mobile communications, which serve as a safety mechanism; and by evidence, provided by BEREC’s 2018 analysis, of a considerable decline in relevant volumes of fixed traffic affected by the measure in the intervening period. Those provisions should therefore be introduced as an amendment to Regulation (EU) 2015/2120, which should also be adapted to ensure that Member States adopt rules on penalties for the infringement of such provisions.
(52)
Since the objectives of this Regulation, namely to ensure the consistent implementation of the regulatory framework for electronic communications, in particular in relation to cross-border aspects and through efficient internal market procedures for draft national measures, and to ensure that consumers are not charged excessive prices for making number-based interpersonal communications originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number in another Member State, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
(53)
This Regulation amends and extends the scope of Regulation (EC) No 1211/2009. Since the amendments to be made are of a substantial nature, that act should, in the interests of clarity, be repealed. References to the repealed regulation should be construed as references to this Regulation,
