Role and procedures of BEREC
Under the 2018 European Electronic Communications Code (EECC), national regulatory authorities (NRAs) are required to analyse a set of markets for electronic communications, which may need ex-ante regulation.
This analysis contains three different elements:
- Market definition - first the NRA must define the relevant geographic and product market.
- SMP assessment - in a second step the NRA must analyse whether one or more undertaking active in that market possesses significant market power either individually or jointly with others.
- Decision on remedies - if the NRA identifies a market with a lack of effective competition, it is required to impose certain regulatory obligations; so-called remedies.
The basis for this kind of measure is the European Commission's Recommendation on Relevant Markets, which contains a list of markets that should be subject to ex-ante regulation. Whenever an NRA concludes that a given market shows failures that hamper competition it must impose appropriate remedies on undertakings with significant market power in accordance with the universal service and market access aspects of the EECC.
According to Articles 32 and 33 of the EECC, the findings of market definition, SMP assessment and – if applicable – the proposed remedies have to be notified to the Commission and other NRAs. The aim of this EU notification is to contribute to the development of a single market in electronic communications by ensuring co-operation among NRAs, and between NRAs and the Commission.
Once an NRA notifies the Commission of its proposed measure the case is assessed by the Commission within one month. At the end of this period and provided that the notified measure does not raise "serious doubts" as to its compatibility with EU law, the Commission may decide to comment. Regulators should take account of these comments before adopting the draft measure in question.
When the Commission expresses serious doubts and opens a so-called Phase II, its investigation period is extended for two months more in the Article 32 cases, or for three months more in the Article 33 investigations. If this situation occurs, BEREC has to issue an opinion on whether these serious doubts are justified. In the case of article 33 the BEREC gives its opinion within six weeks from the beginning of three-month period. For this purpose BEREC has set up a procedure to establish an Working Group (WG) for drafting an opinion.
The Board of Regulators shall adopt the final BEREC Opinion with a two-thirds majority. The BEREC Opinion shall be sent to the European Commission on the same day of adoption and shall be published in full within three working days from being delivered to the European Commission.
In the event that BEREC - in its Opinion issued under Article 33 - shares the Commission’s serious doubts over the draft regulatory obligations notified by the NRA, the relevant WG shall cooperate closely with the NRA concerned in order to identify the most suitable and effective remedies. Before the end of three months, the NRA may either:
(a) Amend or withdraw its draft measure taking utmost account of the Commissions’s notification and BEREC’s opinion; or
(b) Maintain its draft measure.
The Commission may, within one month following the end of the three-month period and taking utmost account of the opinion of BEREC, if any:
(a) issue a recommendation requiring amendment or withdrawal of the draft decision, in particular where BEREC doesn’t share Commission’s serious doubts
(b) withdraw serious doubts OR
(c) require NRA to withdraw the draft decision, accompanied by “detailed and objective” analysis and specific proposals for amending the draft decision, if BEREC shares Commission’s serious doubts (‘double-lock veto’). New procedure under the EECC.
Only applies to symmetric access beyond the first distribution point (art. 61.3) and co-investment offers in VHCN (art. 76)
Then, the NRA amends or withdraw its draft decision within six months.
If amended, the NRA undertakes a new public consultation (art 23) and re-notifies the amended draft decision.
For more details, see Rules of Procedure.