Presentation

1. www.bundesnetzagentur.de
The role of BEREC in Articles 7/7a proceedings
Brussels, 20 January 2017
Sören Nübel,
Acting Head of Unit & Member of BEREC Chair team 2016

2. Revised European Regulatory Framework
(2009)
2
Authorisation Directive
Access Directive
Universal Service Direct.
Data Protection Directive
Framework
Directive
(Art. 95)
Dir 2009/140/EC
Better
Regulation
Dir 2009/136/EC
Citizens‘ Rights
Reg. 1211/2009
BEREC + Office
New Reg.: Body of European Regulators
for Electronic Communications (BEREC) a.
BEREC Office

3. Body of European Regulators for Electronic
Communications (BEREC)
 Established by EC Regulation 1211/2009 published in
December 2009 together with new EU Directives for
electronic communication
 Replaces ERG (dissolved with Dec. 2010/299/EU of 21/05/10)
 Develops cooperation among NRAs, and between NRAs and
the Commission
 to ensure consistent application of the framework in
all Member States
 thereby contributing to the development of the
internal market
 serves as a body of reflection, debate and advice for
European Parliament, Council and Commission

4. Board of Regulators
Responsible for all
regulatory decisions
BEREC + Office
Reg. 1211/2009
Management Committee
Office
Community Body
administrative + prof. support
in control of
supporting
Experts Working Groups (EWGs)
NRAs experts – fundament of BEREC
BEREC – 2-tier-model - 1

5. Structure of BEREC
 Board of Regulators (BoR) – 28 EU NRA members
 EC, EEA, Accession NRAs & Switzerland observers
 BoR decision making forum
 4 Plenary meetings per year
 Expert Working Groups – conduct work for approval of BoR.
 Experts from NRAs, 9 EWGs for 2017 Work Programme
 BEREC Office to provide support to ensure smooth
functioning
 Management Committee to oversee BEREC Office
5

6. Board of Regulators
Regulatory decision
making group
BEREC
(not an agency!)
The Office
Community Body,
funded from the EU
budget
in control of
supporting
 Office is controlled by the Management committee
 Office is accountable to Management committee
 Management committee replaces Administrative Board in regular
European agencies, identical with BoR (+1 Cion), thus NRAs are in full
control of the supporting Office
BEREC – 2-tier-model - 2

7. Role and tasks of BEREC
 Set out in Articles 2 and 3 of the BEREC Regulation and in the
Directives (and the TSM Regulation)
 Nature of tasks
 Advisory vis-à-vis the Commission
 Harmonisation
 Cooperation and assistance to NRAs
 Cross-border dispute resolution
 Information gathering and reporting
 Numbering
 Article 7/7a
7

8. 8
Recommendation on
Relevant markets
2007/879/EC; 2014/710/EU
Guidelines on market analysis
and assessment of
significant market power (SMP)
Market analysis:
Assessment of effective competition
or significant market power
Cancellation, confirmation or
imposition of obligations
National
level
EC level
ECNS RF Remedies process
Results
can be
vetoed
Remedies
cannot be
vetoed
Definition of relevant market
Art. 7/a FD
Art.14-16FD

9. ECNS Regulatory Process (1)
 3 Stages:
 market definition: relevant market (list of 4 (5) markets)
 market analysis: designation of SMP operator(s)
 choice of remedy: imposition of regulatory obligation(s)
 If an operator is found to be dominant (either individually or
jointly), at least one specific regulatory obligation must be
imposed
 which must be proportionate to remedy the problem, justified in the
light of the Art. 8 FD objectives and based on the nature of the
problem
 Remedies must be effective: solve the lack of competition
 Remedies are to be chosen from the list in the AD/UD (“toolbox”)

10. ECNS Regulatory Process – Art. 7/7a
 NRA notifies (consolidation/co-regulation) draft regulatory
measure to EC, BEREC and the other EU NRAs acc. to Art.
7/7a FD:
 EC may issue a no-comments letter; make comments (NRA
shall take utmost account);
 or open a phase II investigation (where intended measure
would create barrier to single market or EC has serious doubts as to
compatibility with EU law)

11. Article 7 or 7a FD: Phase II
 Article 7 FD, if EC has serious doubts concerning the market defintion or
SMP finding and Article 7a FD where the serious doubts concern the
proposed regulatory remedies
 These two cases have different severity and therefore involve different
treatment, deadlines and voting majorities:
 Art. 7 FD: Veto power of the EC on stages 1 + 2 (market def. + SMP),
 Art. 7a FD: no veto power of the EC on the application of remedies
 EC may only make comments and issue a recommendation addressed
to the NRA, which has to be taken into utmost account by the NRA
when adopting the final measure
 However, in both cases BEREC shall give an opinion, which the EC shall
take utmost account of before issuing a decision(Article 7 (7); Article 7a
(5))

12. Article 7/7a – BEREC involvement
Art 3.1.a BEREC Regulation:
BEREC shall be to deliver opinions on draft measures of NRAs
concerning market definition, designation of undertakings with
significant market power and imposition of remedies, in acc.
with Article 7 / 7a FD , and to cooperate and work together with
the NRAs in acc. with Art. 7 / 7a FD.
12

15. The role of BEREC (1)
 BEREC Office sets up a team of experts from other NRAs (or
exceptionally from the BO) when a Phase II was opend by
the EC (ad-hoc EWG)
 Mandate to prepare an independent BEREC opinion on
the justification of the Commission’s serious doubts on
the case
 BEREC Office coordinates the work of EWG
 5-7 experts including the Rapporteur
 The EWG co-operates with the notifying NRA (e.g. additional
information on request by EWG, meeting, telephone
conference)
 The EWG co-operates with the EC (e.g. information of EC
about establishment of EWG, timetable, meeting, telephone
conference)

16. The role of BEREC (2)
 EWG elaborates position whether the Commission’s serious
doubts on the case are justified
 The Board of Regulators votes on the adoption of the position
issued by the experts to form BEREC‘s opinion for this Phase II
case
 Publication of the BEREC opinion on the Phase II investigation on
the BEREC website
 EC shall take utmost account of the opinion of BEREC before
issueing a decision
 Article 7a (4): where BEREC shares the EC‘s serious doubts
regarding a regulatory obligation, it cooperates closely with the
NRA for finding the most appropriate and effective measure for
the particular case

17. Phase-II cases

18. Pro-competitive regulation
effectively implemented, relying
on competition law principles
Effective
Competition
Efficient investment
and consumer
benefits
Consistency and
developing the
internal market
No veto on remedies,
but a complex Art. 7a – co-regulation procedure
shifting the balance towards the European level
Flexibility for
remedies
Art.7-veto for
market analysis
NRAs Euro. Commission
BEREC /Art.7a
Summary and Conclusion:
Regulatory Balance

19. Thank you for your attention!
Questions?
Sören Nübel
Acting Head of Unit
International Policy Issues and Regulatory Strategy
soeren.nuebel@bnetza.de