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(2004/C 84 E/0151)

WRITTEN QUESTION P-3909/03

by Francesco Fiori (PPE-DE) to the Commission

(10 December 2003)

Subject:   Framework directive

In the light of Article 7 and recitals 36 and 37 of the framework directive (2002/21/EC (1)), what action has been taken to guarantee that the activities of such bodies are transparent for the purposes of interaction with industry and clearly defining who is responsible for harmonisation?

The new framework gives the ERG a purely consultative role, while the crucial role of ensuring that the framework is implemented in a consistent manner should be retained by the Commission, on the basis of the powers conferred on it by the Treaty. What is the Commission doing within the ERG framework to make sure that it retains its proper role of ensuring that the new framework is applied in a consistent manner, in accordance with the objectives laid down by Community law?

Answer given by Mr Liikanen on behalf of the Commission

(28 January 2004)

Article 7 of Directive 2002/21/EC of the Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (the Framework Directive) is addressed to national regulatory authorities of the Member States in the discharge of their duties for ex ante regulation under the regulatory framework for electronic communications. Under the terms of Article 7, national regulators must cooperate with each other ‘in a transparent manner to ensure the consistent application, in all Member States’ of the provisions of the new framework. As the Honourable Member has noted, the terms of the legislative provisions in question require transparency from Community regulators.

In addition, as regards interaction with industry, the procedures laid down in the Framework Directive clearly provide for the involvement of interested parties in the proposed measures to be adopted by such national regulators. Prior to taking any action that will have a significant impact on the relevant market, for example, to designate an undertaking as having significant market power, an NRA must conduct a public consultation for a reasonable period as laid down in Article 6 of the Framework Directive. During this period, industry and other interested parties are able to comment upon the measure. Member States are required to establish a single information point so that all active consultations can easily be accessed by third parties.

As foreseen in recitals 36 and 37, the Commission has created the European Regulators Group (ERG) which brings together the national regulatory authorities of the Member States. The ERG is a tool to contribute to a coherent and harmonised application of the Community acquis. In this regard, it must also be recognised that the members of the ERG are independent regulators in their own right and are charged with the day-to-day application of the new regulatory framework, to the extent that they are empowered to act under national law implementing Community law.

Under Article 211 of the Treaty on European Union and of the EC Treaty, the Commission is obliged to ensure that the provisions of the Treaties and the measures taken by the institutions pursuant to them [i.e. any directives adopted] are applied. The Commission's role in relation to Community law is therefore to oversee the correct application of the rules but not to substitute for the NRAs themselves.

The European Regulators Group is part of the institutional infrastructure foreseen by the new electronic communications regulatory framework to ensure that the relevant regulatory rules are consistently applied in all Member States. It was created by the Commission to advise and assist it by, ‘inter alia’, providing an interface between national authorities and the Commission so as to contribute to the development of the internal market, which is one of the principal objectives of the EC Treaty, and to facilitate co-operation between the Commission and NRAs in a transparent way to achieve consistency of application of the regulatory framework. The ERG serves as a body for ‘reflection, debate and advice’ in the electronic communications field (2). It is therefore clear that the ERG is an advisory group to the Commission and not an implementation body in its own right. Its primary roles are to advise the Commission and to assist in the consistent application of the regulatory framework. This means that the ERG actively contributes to the preparation of supplementary measures, such as recommendations, under the new regulatory framework by providing expert advice to the Commission, but responsibility for implementation of Community law remains a Commission task under the EC Treaty.

The possibility for the ERG to carry out activities in its own name, such as publication of consultation documents and a work programme, in no way calls into question the respective allocation of tasks and the institutional balance at stake. These latter activities are simply a result of the ERG fulfilling the task it was created for. The ERG was established under a Commission Decision and acts within the scope of that Decision.

The creation of the ERG does not call into question Commission control and supervision of the application of the new regulatory framework, nor the Commission's right of initiative under the EC Treaty.

The Commission's powers and duties under Community law stem from the provisions of the EC Treaty that oblige it to ensure that Community law is applied and enforced correctly. Working with the ERG does not involve any delegation to the ERG of Commission Treaty powers for enforcement and supervision of Community law. The Commission therefore considers that its role as guardian of Community law will not be jeopardised by the work of the ERG and the Commission's participation in it. Furthermore, the Commission will fulfil its role of ensuring that Community law, and the new framework in particular, is applied in a consistent manner, in accordance with the objectives laid down by Community law itself.

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(1)OJ L 108, 24.4.2002, p. 33.

(2)  Commission Decision 2002/627/EC of 29 July 2002 establishing the European Regulators Group for Electronic Communications Networks and Services, Recital 7, OJ L 200, 30.7.2002.

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