independence and cooperation of regulatory authorities in ... · them under national law...

Prof. Dr. Bernd Holznagel, LL.M.

Institut für Informations-, Telekommunikations-und Medienrecht (ITM)

Independence and Cooperation of Regulatory Authorities in the Telecommunications Sector

Brüssel, den 13. Juli 2016

Prof. Dr. Bernd Holznagel, LL.M., Institut für Informations-, Telekommunikations- und Medienrecht (ITM)

Independence of Regulatory Authorities in the Telecommunications Sector

Structure

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1. The Importance of Regulatory Independence in the TelecommunicationsSector

2. Regulatory Objectives

3. Independence of the Regulatory Authority

4. The Body of European Regulators of Electronic Communications (Berec)

5. Conclusion



1. The Importance of Regulatory Independence in the Telecommunications Sector• The telecommunications sector is shaped by many former state monopolies

Ø The successor companies of those monopolists are still partly owned by the state => financial interests

Ø The successor companies still dominate some markets

• To enable and establish competition the sector must be regulated

Ø The state is not sufficiently impartial due to its own financial interests

Ø The regulator is also subject to influence of the dominant market players

• Therefore regulator must be separated from both the state and the industry

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2. Regulatory Objectives in the Telecommunications Sector

• Promoting competition

• Improving consumer welfare

• Establishment of a common European market

• Buildup of next generation networks

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3. Independence of Regulatory Authorities

• Freedom from instructions and structural independence => Art. 3 Framework Directive 2002/21/EC:

Ø Member States shall ensure that national regulatory authorities exercise their powers impartially and transparently and within reasonable time

Ø Member States shall guarantee the independence of national regulatory authorities

Ø National regulatory Authorities shall not seek or take instructions from any other body in relation to the exercise of these tasks assigned to them under national law implementing Community law

Ø This shall not prevent supervision in accordance with national constitutional law

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3. Independence of Regulatory Authorities

• Personal independence, financial independence => Art. 3 Framework Directive 2002/21/EC

Ø Member States shall ensure that the head of a national regulatory authority, (…) may be dismissed only if they no longer fulfil the conditions required for the performance of their duties which are laid down in advance in national law

Ø The decision to dismiss the head of the national regulatory authority concerned (…) shall be made public at the time of dismissal. The dismissed head of the national regulatory authority (…) shall receive a statement of reasons and shall have the right to request its publication, where this would not otherwise take place, in which case it shall be published

Ø Member States shall ensure that national regulatory authorities have adequate financial and human resources to carry out the task assigned to them

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3. Example: German BNetzA

• The German regulator Bundesnetzagentur (BNetzA, = Federal Network Agency) is an agency under the auspices of the Ministry of Economics; it is bound by the superior authority‘s instructions

• Limitations

Ø Quasi-judicial Ruling Chambers

Ø Publication requirement for all instructions of the Ministry of Economics

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4. Body of European Regulators of Electronic Communications (Berec)• Task:

§ Delivering opinions and advising the Commission in developing the single market

§ Linking the Commission and national regulatory authorities

§ Providing a forum for discussion and the exchange of information

§ Advising the Commission, the European Parliament and the Council on the subject of electronic communication

• Established by Regulation (EC) No 1211/2009

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4. Body of European Regulators of Electronic Communications (Berec)

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Parliament Council Commission

BEREC

National Regulatory Authorities

Deliver opinions on any matter regarding electronic communication

Issue reports and provide advice on any matter regarding electronic communication

Disseminate best practices for the implementation of EU law and provide assistance upon request



4. Body of European Regulators of Electronic Communications (Berec)• Berec‘s structure:

1. Board of Regulators

§ Composed of the heads or nominated high-level representatives of the NRA established in each EU Member State

§ Led by a Chairman and four Vice-Chairs

§ Primary responsibility for overseeing the day-to-day operation of the markets for electronic communications networks and services

2. Berec Office and Management Committee

§ Provides professional and administrative support

§ Community body, funded by the EU

§ The Office shall comprise a Management Commitee and an Administrative Manager

- Composed of the heads or nominated high-level representatives of the NRA established in each EU Member State and one member representing the Commission

- The Administrative Manager shall head the Office and be accountable to the Management Committee

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4. Body of European Regulators of Electronic Communications (Berec)

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5. Conclusion

• Berec works

Ø Impressive results, Berec has established itself as a high quality advisor to the Commission

• Comparison to media regulators

Ø Berec’s competences also affect issues of diversity (net neutrality guidelines)

Ø So far, there has been no formal coordination mechanism with ERGA

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Thank You for Your Attention!

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Institut fürInformations-, Telekommunikations- und Medienrecht (ITM)an der Westfälischen Wilhelms-Universität Münster

Abteilung IIProf. Dr. Bernd Holznagel, LL.M.

Leonardo-Campus 9D-48149 Münster

Tel: +49 251 83 38640Fax: +49 251 90 38644

E-Mail: holznagel@uni-münster.de

independence and cooperation of regulatory authorities in ... · them under national law...

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