# C_2022236EN.01009801.xml

| 20.6.2022 | EN | Official Journal of the European Union | C 236/98 |
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20.6.2022

EN

Official Journal of the European Union

C 236/98

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COMMISSION DECISION

of 7 June 2022

on the participation of the National Regulatory Authority of Ukraine in the Body of European Regulators for Electronic Communications

(2022/C 236/05)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Whereas:

| (1) | Article 17(1) of the Treaty on European Union lists the powers of the Commission and provides in particular that the Commission is to promote the general interest of the Union and take appropriate initiatives to that end, exercise coordinating, executive and management functions, as laid down in the Treaties, and ensure the Union’s external representation, with the exception of the common foreign and security policy and other cases provided for in the Treaties. |
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(1)

Article 17(1) of the Treaty on European Union lists the powers of the Commission and provides in particular that the Commission is to promote the general interest of the Union and take appropriate initiatives to that end, exercise coordinating, executive and management functions, as laid down in the Treaties, and ensure the Union’s external representation, with the exception of the common foreign and security policy and other cases provided for in the Treaties.

| (2) | Pursuant to Article 35(2) of Regulation (EU) 2018/1971 of the European Parliament and of the Council (1) the Board of Regulators and the working groups of the Body of European Regulators for Electronic Communications (‘BEREC’) as well as the Management Board of the BEREC Office are open to the participation of regulatory authorities of third countries with primary responsibility in the field of electronic communications, where those third countries have entered into agreements with the Union to that effect. That provision also provides that under the relevant provisions of those agreements working arrangements are to be developed specifying, in particular, the nature, extent and manner in which the regulatory authorities of the third countries concerned will participate without the right to vote in the work of BEREC and of the BEREC Office, including provisions relating to participation in the initiatives carried out by BEREC, financial contributions and staff to the BEREC Office. |
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(2)

Pursuant to Article 35(2) of Regulation (EU) 2018/1971 of the European Parliament and of the Council (1) the Board of Regulators and the working groups of the Body of European Regulators for Electronic Communications (‘BEREC’) as well as the Management Board of the BEREC Office are open to the participation of regulatory authorities of third countries with primary responsibility in the field of electronic communications, where those third countries have entered into agreements with the Union to that effect. That provision also provides that under the relevant provisions of those agreements working arrangements are to be developed specifying, in particular, the nature, extent and manner in which the regulatory authorities of the third countries concerned will participate without the right to vote in the work of BEREC and of the BEREC Office, including provisions relating to participation in the initiatives carried out by BEREC, financial contributions and staff to the BEREC Office.

| (3) | Pursuant to Article 124 of the Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part (2) (‘the Association Agreement’), Ukraine has committed to ensure that its current and future laws on electronic communications gradually become compatible with the Union acquis featured in Annex XVII to the Association Agreement; that Annex has been updated (3). |
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(3)

Pursuant to Article 124 of the Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part (2) (‘the Association Agreement’), Ukraine has committed to ensure that its current and future laws on electronic communications gradually become compatible with the Union acquis featured in Annex XVII to the Association Agreement; that Annex has been updated (3).

| (4) | Pursuant to Article 392 of the Association Agreement, the Parties shall cooperate ‘with the aim of developing a comprehensive regulatory framework and ensure efficient functioning of (...) the electronic communication markets’, while pursuant to Article 394(1) of the Association Agreement, they ‘shall promote gradual approximation to the EU law and regulatory framework’ in this area. In addition, Article 393 of the Association Agreement provides that ‘the Parties shall promote cooperation between Ukraine’s national regulator in the field of communications and the national regulators of the EU’. |
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(4)

Pursuant to Article 392 of the Association Agreement, the Parties shall cooperate ‘with the aim of developing a comprehensive regulatory framework and ensure efficient functioning of (...) the electronic communication markets’, while pursuant to Article 394(1) of the Association Agreement, they ‘shall promote gradual approximation to the EU law and regulatory framework’ in this area. In addition, Article 393 of the Association Agreement provides that ‘the Parties shall promote cooperation between Ukraine’s national regulator in the field of communications and the national regulators of the EU’.

| (5) | It is clear from the object and purpose of the provisions of the Association Agreement and its Appendix XVII-3 that the Union and Ukraine commit to regulatory cooperation with the aim of approximation of Ukraine’s laws on electronic communications to the Union acquis, for which BEREC plays an important role. It is also clear that participation of the national regulatory authority of Ukraine to the work of BEREC and the BEREC Office would further facilitate the process. |
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(5)

It is clear from the object and purpose of the provisions of the Association Agreement and its Appendix XVII-3 that the Union and Ukraine commit to regulatory cooperation with the aim of approximation of Ukraine’s laws on electronic communications to the Union acquis, for which BEREC plays an important role. It is also clear that participation of the national regulatory authority of Ukraine to the work of BEREC and the BEREC Office would further facilitate the process.

| (6) | The Union and Ukraine have therefore entered into an agreement within the meaning of Article 35(2) of Regulation (EU) 2018/1971. |
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(6)

The Union and Ukraine have therefore entered into an agreement within the meaning of Article 35(2) of Regulation (EU) 2018/1971.

| (7) | Given the interest of the Union in strengthening cooperation with Ukraine and fostering the adoption by Ukraine of the Union acquis in the field of electronic communications, it is appropriate to allow for the participation of the national regulatory authority of Ukraine in the Board of Regulators and working groups of BEREC and the Management Board of the BEREC Office and establish working arrangements to that effect, |
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(7)

Given the interest of the Union in strengthening cooperation with Ukraine and fostering the adoption by Ukraine of the Union acquis in the field of electronic communications, it is appropriate to allow for the participation of the national regulatory authority of Ukraine in the Board of Regulators and working groups of BEREC and the Management Board of the BEREC Office and establish working arrangements to that effect,

HAS DECIDED AS FOLLOWS:

Article 1

The national regulatory authority of Ukraine with primary responsibility for overseeing the day-to-day operation of the markets for electronic communications networks and services may participate, without the right to vote, in the Board of Regulators and working groups of the Body of European Regulators for Electronic Communications (‘BEREC’) and the Management Board of the BEREC Office.

The Terms of Reference for the participation of the national regulatory authority of Ukraine are set out in the Annex.

Article 2

This Decision shall enter into force on the day of its adoption.

Done at Brussels, 7 June 2022.

For the Commission

Thierry BRETON

Member of the Commission

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(1)  Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (OJ L 321, 17.12.2018, p. 1).

1

(2)  OJ L 161, 29.5.2014, p. 3.

2

(3)  Decision N° 1/2021 of the EU-Ukraine Association Committee in Trade Configuration of 22 November 2021amending Appendix XVII-3 (Rules applicable to telecommunication services), Appendix XVII-4 (Rules applicable to postal and courier services) and Appendix XVII-5 (Rules applicable to international maritime transport) to Annex XVII to the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part [2021/2219] (OJ L 447, 14.12.2021, p. 23).

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ANNEX

TERMS OF REFERENCE

1.   Participation in the BEREC Board of Regulators

| 1. | The national regulatory authority (‘NRA’) of Ukraine may participate without the right to vote in the work of the BEREC Board of Regulators (BoR). |
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1.

| 2. | The NRA of Ukraine shall appoint a representative to participate in the deliberations of the BoR from among the head of the NRA, a member of its collegiate body or the replacement of either of them. |
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2.

| 3. | The NRA of Ukraine shall also appoint an alternate, who shall replace the representative in their absence. The alternate shall be appointed from among the head of the NRA, a member of its collegiate body, the replacement of either of them, or the staff of the NRA. |
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3.

| 4. | The representative of the NRA of Ukraine and the alternate shall be appointed in light of their knowledge in the field of electronic communications, taking into account relevant managerial, administrative and budgetary skills. In order to ensure a maximum benefit from their participation the NRA shall make efforts to limit the turnover of its representatives and, where possible, also of its alternates. |
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4.

| 5. | The participant of the NRA of Ukraine shall have the right to express an opinion in all discussions, whether they are held in a meeting of the BEREC BoR or by any other means. Such opinion shall be duly recorded in the minutes, according to the rules and working practices of the BoR. |
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5.

| 6. | The name of the representative of the NRA of Ukraine and of the alternate shall be included in the list of members of the BoR published in accordance with Article 7(5) of Regulation (EU) 2018/1971 of the European Parliament and of the Council (1). |
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6.

| 7. | When participating in the works of the BoR, the representative of the NRA of Ukraine and the alternate shall neither seek nor take instructions from any government, institution, person or body. |
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7.

2.   Participation in the Working Groups

| 1. | The NRA of Ukraine may nominate experts to participate in the Working Groups of BEREC. |
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1.

| 2. | Such experts may participate in all activities of the Working Groups, according to the rules and working practices of BEREC. They may express an opinion in all exchanges, whether they are held in a meeting of the Working Groups or by any other means. |
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2.

3.   Participation in the Management Board of the BEREC Office

| 1. | The NRA of Ukraine may participate without the right to vote in the work of the Management Board of the BEREC Office (MB). |
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1.

| 2. | The NRA of Ukraine shall appoint the person appointed as representative in the BoR to participate in the works of the MB or a person other than the representative in the BoR from among the head of the NRA, a member of its collegiate body or the replacement of either of them. |
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2.

| 3. | The NRA of Ukraine shall also appoint as alternate the person appointed as alternate of the representative in the BoR or another person, from among the head of NRA, a member of its collegiate body, the replacement of either of them, or the staff of NRA, who shall replace the representative in their absence. |
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3.

| 4. | The participant of the NRA of Ukraine shall have the right to express an opinion in all discussions, whether they are held in a meeting of the BEREC MB or by any other means. Such opinion shall be duly recorded in the minutes, according to the rules and working practices of the MB. |
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4.

| 5. | The name of the representative of the NRA of Ukraine and of the alternate shall be included in the list of members of the MB published in accordance with Article 15(4) of Regulation (EU) 2018/1971. |
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5.

| 6. | When participating in the works of the MB, the representative of the NRA of Ukraine and the alternate shall neither seek nor take instructions from any government, institution, person or body. |
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6.

4.   Declarations of Interest

| 1. | The representatives of the NRA of Ukraine to the BoR and the MB and their alternates shall each make a written declaration indicating their commitments and the absence or presence of any direct or indirect interests that might be considered to prejudice their independence. |
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1.

| 2. | These declarations shall be made at the time of taking up responsibilities and shall be published. They shall be accurate and complete, and shall be updated where there is a risk of there being any direct or indirect interest that might be considered to prejudice the independence of the person making the declaration. |
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2.

5.   Staffing

The BEREC Office may make use of staff from Ukraine, including seconded national experts and other staff not employed by the BEREC Office, pursuant to a decision to be issued by the MB.

6.   Financial contribution of the NRA of Ukraine to the BEREC Office

| 1. | The financial contribution to the budget of BEREC Office to be paid by the NRA of Ukraine in order to participate in BEREC, represents the full cost of its participation in accordance with points 1, 2 and 3 of this Annex. The amounts shall be determined in accordance with point 6.2. |
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1.

| 2. | The financial contribution to be paid by the NRA of Ukraine, according to point 6.1, shall cover the following costs:






  — | costs for reimbursement of travel expenses of the NRA representatives for BEREC meetings, according to the reimbursement rules of BEREC; |
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2.

—

costs for reimbursement of travel expenses of the NRA representatives for BEREC meetings, according to the reimbursement rules of BEREC;

| — | administrative costs relating to the above reimbursements for travel expenses, amounting to a maximum of 3 % of the amounts paid as reimbursements for travel expenses; |
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—

administrative costs relating to the above reimbursements for travel expenses, amounting to a maximum of 3 % of the amounts paid as reimbursements for travel expenses;

| — | administrative costs relating to the overall participation of the NRA in the works of BEREC. |
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—

administrative costs relating to the overall participation of the NRA in the works of BEREC.

| 3. | The amount of the financial contribution shall be determined by BEREC, taking into account, inter alia, the anticipated missions for the upcoming year and the actual missions and reimbursements for the past year(s). |
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3.

| 4. | The contribution of the NRA shall be implemented in accordance with the financial rules of the BEREC Office, adopted pursuant to Article 29 of Regulation (EU) 2018/1971. |
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4.

| 5. | Travel costs and subsistence costs incurred by representatives and experts of the NRA of Ukraine for the purposes of taking part in the work of BEREC and the BEREC Office, including related meetings, shall be reimbursed by the BEREC Office according to the rules stipulated in the BEREC Office Management Board Decision concerning the reimbursement of travel, subsistence and other expenses incurred in the course of journeys made by persons not employed by the BEREC Office (2).






  (1) | After the entry into force of this Decision and at the beginning of each following year, the BEREC Office shall send to the NRA a call for funds corresponding to its contribution to the Agency under this Decision. |
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5.

(1)

After the entry into force of this Decision and at the beginning of each following year, the BEREC Office shall send to the NRA a call for funds corresponding to its contribution to the Agency under this Decision.

| (2) | This contribution shall be expressed in EUR and paid into a EUR bank account of the BEREC Office. |
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(2)

This contribution shall be expressed in EUR and paid into a EUR bank account of the BEREC Office.

| (3) | The NRA of Ukraine shall pay its contribution according to the call for funds for its own part within 30 days after the call for funds is sent by the BEREC Office. |
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(3)

The NRA of Ukraine shall pay its contribution according to the call for funds for its own part within 30 days after the call for funds is sent by the BEREC Office.

| (4) | Any delay in the payment of the contribution shall give rise to the payment of interest by the NRA on the outstanding amount as from the due date. The interest rate corresponds to the rate applied by the European Central Bank on the due date for its operations in EUR, increased by 1,5 percentage points. |
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(4)

Any delay in the payment of the contribution shall give rise to the payment of interest by the NRA on the outstanding amount as from the due date. The interest rate corresponds to the rate applied by the European Central Bank on the due date for its operations in EUR, increased by 1,5 percentage points.

7.   Detailed working arrangements

| 1. | The BoR and the MB shall specify the detailed working arrangements for the participation of the NRA of Ukraine, where needed, in accordance with Regulation (EU) 2018/1971 and the present Terms of Reference. |
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1.

| 2. | The NRA of Ukraine may participate in the work of BEREC, including the BoR and the Working Groups, and in the MB from the day of entry into force of this Decision, irrespectively of the finalisation of the detailed working arrangements of point 7.1. |
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2.

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(1)  Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009, OJ L 321, 17.12.2018, p.1.

(2)  Decision No MB/2019/20 of 6 December 2019 of the Management Board of the Agency for Support for BEREC concerning the reimbursement of travel, subsistence and other expenses incurred in the course of journeys made by persons not employed by the BEREC Office and repealing the previous Management Committee Decision No MC/2015/13 of 2 October 2015.

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