EN Official Journal of the European Union CE 75/67

COMMON POSITION (EC) No 14/2009

adopted by the Council on 16 February 2009

with a view to the adoption of Regulation (EC) No …/2009 of the European Parliament and of the Council of … establishing the Group of European Regulators in Telecoms (GERT)

(Text with EEA relevance)

(2009/C 75 E/05)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing, the European Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

(1) Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (4), Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (5), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (6), Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive) (7) and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (8) (together referred to as ‘the Framework Directive and the Specific Directives’) aim to create an internal market for electronic communications within the Community while ensuring a high level of investment, innovation and consumer protection through enhanced competition.

(2) The need for the EU regulatory framework to be consistently applied in all Member States is essential for the successful development of an internal market for electronic communications networks and services. The EU regulatory framework sets out objectives to be achieved and provides a framework for action by national regulatory authorities (NRAs), whilst granting them flexibility in certain areas to apply the rules in the light of national conditions.

(3) In view of the need to ensure the development of consistent regulatory practice and the consistent application of the EU regulatory framework, the Commission established the European Regulators Group (ERG) pursuant to Commission Decision 2002/627/EC of 29 July 2002 establishing the European Regulators Group for Electronic Communications Networks and Services (9) to advise and assist the Commission in the development of the internal market and, more generally, to provide an interface between NRAs and the Commission.

(4) The ERG has made a positive contribution towards consistent regulatory practice by facilitating cooperation between NRAs, and between NRAs and the Commission. This approach to developing greater consistency among NRAs by exchanging information and knowledge on practical experience has proved successful in the short period following its deployment. Continued and intensified cooperation and coordination between NRAs will be required to develop further the internal market in electronic communication networks and services.

(5) This calls for the strengthening of the ERG and its recognition in the EU regulatory framework as the Group of European Regulators in Telecoms (GERT). GERT should neither be a Community agency nor have legal personality. GERT should replace the ERG, provide expertise and establish confidence by virtue of its independence, the quality of its advice and information, the transparency of its procedures and methods of operation, and its diligence in performing its tasks.

(6) GERT should, through the pooling of expertise, assist NRAs without replacing the existing functions or duplicating work already being undertaken, and assist the Commission in the execution of its responsibilities.

(7) GERT should continue the work of the ERG, developing cooperation between NRAs, and between NRAs and the Commission, so as to ensure the consistent application in all Member States of the EU regulatory framework for electronic communications networks and services, and thereby contributing to the development of the internal market.

(8) GERT should also serve as a body for reflection, debate and advice for the European Parliament, the Council and the Commission in the electronic communications field. GERT should accordingly advise the European Parliament, the Council and the Commission, at their request or on its own initiative.

(9) The work of GERT should focus on the ex ante regulation of electronic communications markets, in particular in the context of the market analysis procedure. GERT should pursue its tasks in cooperation with, and without prejudice to the role of, existing groups and committees such as the Communications Committee, established under the Directive 2002/21/EC (Framework Directive), the Radio Spectrum Committee established under Decision No 676/2002/EC of the European Parliament and Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (10), the Radio Spectrum Policy Group established under Commission Decision 2002/622/EC of 26 July 2002 establishing a Radio Spectrum Policy Group (11), and the Contact Committee established under Directive 97/36/EC of the European Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (12).

(10) Since the objectives of the proposed action, namely the further development of consistent regulatory practice through intensified cooperation and coordination between NRAs, and between NRAs and the Commission by, inter alia, the exchange of information, in order to further develop the internal market in electronic communication networks and services, cannot be sufficiently achieved by the Member States in view of the EU-wide scope of this Regulation, and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity, as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

Subject-matter, scope and tasks

Article 1

Subject matter, scope and aims

1. An advisory group of the national regulatory authorities (NRAs) on electronic communications networks and services, referred to as the Group of European Regulators in Telecoms (GERT), is established.

2. GERT shall act within the scope of Directive 2002/21/EC (Framework Directive) and Directives 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC and 2002/58/EC (Specific Directives), namely on matters regarding economic regulation of electronic communications markets.

3. GERT shall carry out its tasks independently, impartially and transparently. In all its activities, GERT shall pursue the same objectives as those of the NRAs, as set out in Article 8 of Directive 2002/21/EC (Framework Directive). In particular, GERT shall contribute to the development and better functioning of the internal market for electronic communications networks and services, by aiming to ensure a consistent application of the EU regulatory framework for electronic communications.

4. GERT shall promote cooperation between NRAs, and between NRAs and the Commission, and shall advise the European Parliament, the Council and the Commission.

Article 2

Role of GERT in the application of the EU regulatory framework

1. GERT shall:

(a) develop and disseminate among NRAs regulatory best practice, such as common approaches, methodologies or guidelines on the implementation of the EU regulatory framework;

(b) on request, provide assistance to NRAs on regulatory issues, including by delivering opinions on cross-border disputes in accordance with Article 21 of Directive 2002/21/EC (Framework Directive) or by assisting NRAs in the context of the analysis of relevant markets in accordance with Article 16 of that Directive;

(c) deliver opinions on the draft decisions, recommendations and guidelines of the Commission, referred to in paragraph 2;

(d) issue reports or provide advice, at the request of the Commission or on its own initiative, and provide advice to the European Parliament and the Council, upon request or on its own initiative, on any matter regarding electronic communications within its competence;

(e) on request, assist the European Parliament, the Council, the Commission and the NRAs in the dissemination of regulatory best practices to third countries.

2. The draft decisions, recommendations and guidelines referred to in paragraph 1(c) are:

(a) decisions and opinions on draft measures of NRAs concerning market definition, designation of undertakings with significant market power and imposition of remedies, in accordance with Article 7 of Directive 2002/21/EC (Framework Directive);

(b) recommendations and guidelines on the form, content and level of details to be given in notifications, in accordance with Article 7a of Directive 2002/21/EC (Framework Directive);

(c) recommendations on relevant product and service markets, in accordance with Article 15 of Directive 2002/21/EC (Framework Directive);

(d) decisions on the identification of transnational markets, in accordance with Article 15 of Directive 2002/21/EC (Framework Directive);

(e) recommendations on harmonisation, in accordance with Article 19 of Directive 2002/21/EC (Framework Directive);

(f) decisions authorising or preventing a NRA from taking exceptional measures, in accordance with Article 8 of Directive 2002/19/EC (Access Directive).

3. NRAs and the Commission shall take the utmost account of any opinion, advice or regulatory best practice adopted by GERT.

CHAPTER II

Organisation of the GERT

Article 3

Composition

1. GERT shall be composed of the heads or high-level representatives of the NRA established in each Member State with primary responsibility for overseeing the day-to-day operation of the markets for electronic communications networks and services.

2. There shall be one representative per Member State.

3. The Commission shall have observer status and shall be represented at an appropriate level.

4. NRAs from European Economic Area (EEA) States and from those states that are candidates for accession to the European Union shall have observer status and shall be represented at an appropriate level.

Article 4

Operational arrangements

1. GERT shall adopt and make publicly available its rules of procedure.

2. The opinions, regulatory best practice and reports of GERT shall be adopted on the basis of a two-third majority of the members. Each member shall have one vote.

The rules of procedure shall set out in greater detail the arrangements governing voting, including the conditions under which one member may act on behalf of another member, the rules governing quorums, and the notification deadlines for meetings. The rules of procedures may also set out urgent voting procedures.

Opinions, regulatory best practice and reports adopted by GERT shall be made public, and shall indicate the reservations of an NRA at its request.

3. GERT shall elect its Chairperson and its Vice-Chairpersons from among its members, subject to the rules of procedure. The term of office of the Chairperson and Vice-Chairpersons shall be one year. The Chairperson and Vice-Chairpersons shall be responsible for representing GERT.

4. Plenary meetings of GERT shall be convened by its Chairperson and shall occur at least four times a year in ordinary session. Extraordinary meetings shall also be convened at the initiative of the Chairperson, at the request of the Commission or at the request of at least one third of GERT's members. The agenda of the meeting shall be set by the Chairperson and made public.

5. The work of GERT may be organised into expert working groups as appropriate.

6. The Commission shall be invited to all plenary meetings of GERT and may be invited to attend meetings of its expert working groups.

7. Experts from EEA States and those states that are candidates for accession to the European Union may participate as observers in the meetings of GERT. GERT may invite other experts and observers to attend its meetings.

CHAPTER III

General provisions

Article 5

Consultation

When appropriate, GERT shall, before adopting opinions, regulatory best practice or reports, consult interested parties and give them the opportunity to comment within a reasonable period. GERT shall, without prejudice to Article 8, make the results of the consultation procedure publicly available.

Article 6

Transparency and accountability

1. GERT shall carry out its activities with a high level of transparency. GERT shall ensure that the public and any interested parties are given objective, reliable and easily accessible information, in particular in relation to the results of its work.

2. GERT shall, annually, and after consulting the European Parliament, the Council and the Commission, adopt a work programme for the coming year, shall transmit it to the European Parliament, the Council and the Commission and make it publicly available. GERT shall also publish an annual report of its activities.

3. The European Parliament and the Council may request the GERT to address them on relevant issues relating to GERT's activities.

Article 7

Provision of information to GERT

The Commission and NRAs shall provide information requested by GERT to enable it to perform its tasks. This information shall be managed in accordance with the rules set out in Article 5 of Directive 2002/21/EC (Framework Directive).

Article 8

Confidentiality

GERT shall not publish or disclose to third parties information that it processes or receives for which confidential treatment has been requested.

Where the advice requested or the question raised is of a confidential nature, members of GERT, observers, and any other person shall be under an obligation not to disclose information which has come to their knowledge through the work of GERT or its expert working groups.

Article 9

Entry into force

This Regulation shall enter into force on 31 December 2009.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, … For the European Parliament The President … For the Council The President …

(1) OJ C 224, 30.8.2008, p. 50.

(2) OJ C 257, 9.10.2008, p. 51.

(3) Opinion of the European Parliament of 24 September 2008 (not yet published in the Official Journal), Council Common Position of 16 February 2009 and Position of the European Parliament of …

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

(5) OJ L 108, 24.4.2002, p. 7.

(6) OJ L 108, 24.4.2002, p. 21.

(7) OJ L 108, 24.4.2002, p. 51.

(8) OJ L 201, 31.7.2002, p. 37.

(9) OJ L 200, 30.7.2002, p. 38.

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

(11) OJ L 198, 27.7.2002, p. 49.

(12) OJ L 202, 30.7.1997, p. 60.