Role and procedures of BEREC

Under the revised 2009 EU regulatory framework national regulatory authorities (NRAs) are required to analyze 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 analyze 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 a NRA concludes that a given market shows failures that hamper competition it must impose appropriate remedies on undertakings with a significant market power in accordance with the Universal Service Directive and market Access Directive.

According to Articles 7 and 7a of the Framework Directive 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, the so-called Article 7 procedure, 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 7 cases, or for three months more in the Article 7a investigations. If this situation occurs, BEREC has to issue an opinion on whether these serious doubts are justified. For this purpose BEREC has set up a procedure  to establish an Expert Working Group (EWG) for drafting an opinion.

The Board of Regulators shall adopt the final BEREC Opinion with a 2/3 (Art 7 Framework directive) or a simple majority (Art 7a Framework directive). 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 7a - shares the Commission’s serious doubts over the draft regulatory obligations notified by the NRA, the relevant EWG shall cooperate closely with the NRA concerned in order to identify the most suitable and effective remedies.

For more details, see Rules of Procedure.