Common Position (EC) No 14/2009 of 16 February 2009 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council establishing the Group of European Regulators in Telecoms (GERT) (Text with EEA relevance )
Date: 2009-02-16
Institutions: Council of the European Union
Subjects: Community body, disclosure of information, electronic mail, means of communication, telecommunications, transmission network

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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 Com-
munity, 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
Regions (2),

the Committee of

the

to create an internal market for electronic communica-
tions within the Community while ensuring a high level
of
innovation and consumer protection
through enhanced competition.

investment,

(2)

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

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

laid down in

(3)

Whereas:

(1)

the European Parliament and of

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 Council of
7 March 2002 on access to, and interconnection of, elec-
tronic communications networks and associated facilities
(Access Directive) (5), Directive 2002/20/EC of the Euro-
pean Parliament and of the Council of 7 March 2002 on
the authorisation of electronic communications networks
(Authorisation Directive) (6), Directive
and
2002/22/EC of
the
the European Parliament and of
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
Council of 12 July 2002 concerning the processing of
personal data and the protection of privacy in the elec-
tronic communications sector (Directive on privacy and
electronic communications) (8)
(together referred to as
‘the Framework Directive and the Specific Directives’) aim

the European Parliament and of

services

(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
Journal), Council Common Position of

published in the Official
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.

In view of the need to ensure the development of consis-
tent regulatory practice and the consistent application of
the EU regulatory framework,
the Commission estab-
lished the European Regulators Group (ERG) pursuant to
Commission Decision 2002/627/EC of 29 July 2002
establishing the European Regulators Group for Elec-
tronic 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)

(5)

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 intensi-
fied cooperation and coordination between NRAs will be
required to develop further the internal market in elec-
tronic communication networks and services.

This calls for the strengthening of the ERG and its recog-
nition in the EU regulatory framework as the Group of
European Regulators in Telecoms (GERT). GERT should
neither be a Community agency nor have legal person-
ality. 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 dili-
gence in performing its tasks.

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

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(6)

(7)

(8)

(9)

(10)

GERT should, through the pooling of expertise, assist
NRAs without replacing the existing functions or dupli-
cating work already being undertaken, and assist
the
Commission in the execution of its responsibilities.

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.

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.

The work of GERT should focus on the ex ante regulation
in particular in
of electronic communications markets,
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 Deci-
sion 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) (1), the Radio Spectrum Policy
Group
Decision
2002/622/EC of 26 July 2002 establishing a Radio
Spectrum Policy Group (2), and the Contact Committee
the
Directive
established
European Parliament and of the Council of 30 June 1997
amending Council Directive 89/552/EEC on the coordi-
nation of certain provisions laid down by law, regulation
or administrative action in Member States concerning the
pursuit of television broadcasting activities (3).

Commission

established

97/36/EC

under

under

of

and

intensified

Since the objectives of the proposed action, namely the
further development of consistent regulatory practice
through
coordination
cooperation
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 commu-
nication 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,

(1) OJ L 108, 24.4.2002, p. 1.
(2) OJ L 198, 27.7.2002, p. 49.
(3) OJ L 202, 30.7.1997, p. 60.

HAVE ADOPTED THIS REGULATION:

CHAPTER I

Subject-matter, scope and tasks

Article 1

Subject matter, scope and aims

An advisory group of the national regulatory authorities
1.
(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.

GERT shall carry out its tasks independently, impartially
3.
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 func-
tioning of the internal market for electronic communications
networks and services, by aiming to ensure a consistent applica-
tion of the EU regulatory framework for electronic communica-
tions.

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 prac-
tice, such as common approaches, methodologies or guide-
the EU regulatory
lines on the
framework;

implementation of

(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
the Commission, referred to in para-

and guidelines of
graph 2;

(d) issue reports or provide advice, at

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;

the request of

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

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

recommendations and guidelines

(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 Direc-
tive 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

Article 4

Operational arrangements

GERT shall adopt and make publicly available its rules of

1.
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 arrange-
ments 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 proce-
dures.

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.

Plenary meetings of GERT shall be convened by its Chair-
4.
person 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.

The work of GERT may be organised into expert working

5.
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 candi-
dates 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.

1.
GERT shall be composed of the heads or high-level repre-
sentatives 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.

The Commission shall have observer status and shall be

3.
represented at an appropriate level.

CHAPTER III

General provisions

Article 5

Consultation

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

When appropriate, GERT shall, before adopting opinions, regu-
latory 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.

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Article 6

Transparency and accountability

be managed in accordance with the rules set out in Article 5 of
Directive 2002/21/EC (Framework Directive).

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

GERT shall, annually, and after consulting the European
2.
Parliament, the Council and the Commission, adopt a work
programme for the coming year, shall transmit it to the Euro-
pean 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

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 confi-
dential 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

The Commission and NRAs shall provide information requested
by GERT to enable it to perform its tasks. This information shall

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

…

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 16 November 2007 the Commission adopted its proposal
the
European Parliament and of the Council establishing the European Electronic Communications Market
Authority (1). The Council received the Commission proposal on 19 November 2007 (2).

a Regulation of

for

The European Parliament adopted its opinion at first reading on 24 September 2008.

The Committee of the Regions adopted its opinion on 19 June 2008 (3).

The European Economic and Social Committee adopted its opinion on 29 May 2008 (4).

The Commission amended its proposal on 5 November 2008 (5).

The Council adopted its common position on 16 February 2009.

II. OBJECTIVE

The proposed Regulation, which forms part of the EU regulatory framework for electronic communica-
tions submitted by the Commission in November 2007, seeks to set up a new Community body. Acting
within the scope of the Framework Directive and the specific directives, the body would help to improve
the functioning of the internal market for electronic communications networks and services, including
in particular the development of cross-Community electronic communications. It would act as a centre
of expertise for electronic communication networks and services at EU level, drawing upon the experi-
ence of the national regulatory authorities. The regulatory framework for electronic communications
would thus be applied consistently, thereby improving competition and contributing to competitiveness.

III. ANALYSIS OF THE COMMON POSITION

1. General remarks

The Council has opted for a different type of legal act from that proposed by the Commission, but
the common position incorporates most of the European Parliament's first-reading amendments
either in full, in part or in essence.

It also contains some further changes designed to create an independent flexible body with a private-
law support structure.

A number of amendments adopted by the European Parliament are not reflected in the common
position because the Council deemed them superfluous or unacceptable or, in some cases, because
provisions in the original Commission proposal were deleted or thoroughly recast.

In particular, the Council adopted its common position with the aim of improving and bolstering
existing structures, notably the European Regulators Group (ERG). The proposed new body is
intended to replace the ERG and improve its functioning so as to ensure greater transparency and
efficiency in the decision-making process. The Council has opted to give the ERG formal status in a
Community regulation by laying down a more precise definition of its tasks, its functioning and its
relations with the Community Institutions. The new body, designated GERT (Group of European
Regulators in Telecoms), would not be a Community agency and would not have legal personality. It
would have a private-law support structure. GERT would be set up to operate as a flexible and effi-
cient body, acting independently in line with its remit, notably within the scope of the Framework
Directive and the specific directives.

(1) COM(2007) 699 final.
(2) 15408/07.
(3) OJ C 257, 9.10.2008, p. 68.
(4) TEN/327-329 — CESE 984/2008 — 2007/0247 (COD) — 2007/0248 (COD) — 2007/0249 (COD).
(5) COM(2008) 720 final.

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The Council has added or amended a number of provisions to ensure that GERT's composition is
clear, its internal organisation proportionate to its remit and its decision-making arrangements simple
and efficient. The Council, in agreement with the European Parliament, considers it important that
the new body's activities should be transparent and that it should be answerable to the European
institutions.

2. Specific observations

(a) Subject matter, scope and aims

The Council agrees with the Commission and the European Parliament that a new body should
be created as part of the internal market for electronic communications networks and services
(amendments 7-13). The new body would have an advisory role and should assist the NRAs
(national regulatory authorities) and help the Commission to carry out its tasks (amendment 12).
The group should also serve as a body for reflection, debate and advice for the European Parlia-
ment, Council and Commission in the electronic communications field and advise them at their
request or on its own initiative (amendments 17-18, 52). It should, in fact, replace the ERG (Euro-
pean Regulators' Group), which currently advises and assists the Commission in developing the
internal market (amendment 13). The group should continue the work of the ERG, promoting
cooperation between national regulatory authorities and between those authorities and the
Commission, so as to ensure the consistent application in all Member States of the regulatory
framework for electronic communications networks and services, and thereby contribute to the
development of the internal market (amendments 11, 48-49, 53).

The Council shares the view of the Commission and the European Parliament that the new
body's activities should come within the scope of the Framework Directive and the specific direc-
tives and should be clearly defined (amendments 47-50, 56-60, 64, 69, 75-78, 80, 85, 87,
91-92, 97, 98, 99, 105). Like the European Parliament, the Council considers that GERT should
also draw up and disseminate among NRAs regulatory best practice, such as common
approaches, methodologies or guidelines on implementation of
the regulatory framework
(amendment 53). It further agrees with both institutions that ENISA (European Network and
Information Security Agency) should not form part of the new body, which should have no
competence at European level in matters concerning network and information security (amend-
ments 9-10, 24, 27, 36, 50, 56, 65, 89, 107(d), 143).

Unlike the European Parliament, the Council considers that the name GERT (Group of European
Regulators in Telecoms) would be more appropriate for the new body than BERT (Body of the
European Telecoms Regulators) (amendment 47). The Council agrees with the European Parlia-
ment that a more solid basis is required for setting up such a body (amendment 8), but it feels
that GERT should neither have the characteristics of an agency nor legal personality (amendments
14, 51). Like the European Parliament, the Council considers that GERT would provide expertise
and would establish confidence by virtue of its independence, the quality of the advice it delivers
and the information it disseminates, the transparency of its procedures and methods of operation,
and its diligence in performing tasks (amendment 12). Indeed, the Council feels that GERT
should be set up by means of a Community regulation so as to ensure the further development
of consistent regulatory practice through intensified cooperation and coordination between NRAs
and between NRAs and the Commission, in order to strengthen the internal market in electronic
communications services.

The proportionality principle would forbid going beyond what is necessary to attain the desired
goal. The Council considers that this goal can be achieved by GERT, because it is less formal and
bureaucratic than a Community agency.

Regarding GERT's assignments the Council, unlike the European Parliament, feels that the Group
should focus on matters concerning economic regulation of electronic communications markets
and avoid pursuing tasks which have not been clearly defined in advance (amendments 16, 19,
20, 22, 26, 28, 68, 70, 71, 79, 81-84, 86, 93, 95, 102, 103-104, 106). The Council does not
share the European Parliament's view that GERT should also provide advice for market players
(amendments 15, 54), on the grounds that GERT needs to be able to carry out its tasks indepen-
dently without any conflict of interest. The Council thinks it is right that the Group should seek
to carry out its tasks in cooperation with existing groups and committees, but does not feel that
it should advise them (amendments 81-84, 88).

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(b) Composition and operational arrangements

The Council agrees with the European Parliament that the new body should be composed of the
heads or high-level representatives from the NRA established in each Member State with primary
responsibility for overseeing the day-to-day operation of the market for electronic communica-
tions networks and services and that it should include one member per Member State. It also
agrees that the Commission should have observer status (amendment 108) and that the new
body's Chairperson and Vice-Chairpersons
should be elected from among its members
(amendment 109). The Council agrees with the European Parliament that the new body should
carry out its tasks independently, impartially and transparently (amendment 112) and take deci-
sions on the basis of a two-thirds majority of the members (amendment 111). Like the European
Parliament, the Council considers that the NRAs and the Commission should take the utmost
account of opinions issued by GERT (amendment 72).

The Council agrees with the simplification of the new body's structure and tasks as proposed by
the European Parliament, in particular compared with the structure proposed by the Commission
(amendments 107(d) and (e), 115-117, 119-120, 122, 125, 129-130, 138, 143-147) and shares
the European Parliament's opinion on some of
for
instance, adoption by the new body of rules of procedure (amendment 111) or the convening of
meetings (amendment 110).

the operational arrangements such as,

However, the Council favours a financial and organisational structure that is les unwieldy and
bureaucratic than that proposed by the European Parliament. The Council does not consider it
necessary to provide for a Board of Regulators or a Managing Director post to ensure proper
execution of GERT's tasks (amendments 107, 108, 114, 126-127, 131, 133-139, 142). The
Council considers that, in order to ensure GERT's independence, it should not be funded either
fully or partly from the Community budget (amendments 37, 51, 168, 149-151, 153-154). The
Coucil considers that, in order to ensure application of the principles of subsidiarity and propor-
tionality, to opt for the form of a Community agency is neither necesary for, nor proportionate
to, the tasks assigned to GERT (amendments 14, 51, 163, 168). Regarding the two-and-a-half-
year terms of office of the Chairperson and of the Vice-Chairpersons, the Council considers a
shorter, one-year term of office more appropriate (amendment 109).

(c) Transparency and confidentiality

Like the European Parliament, the Council feels that, where appropriate, before issuing opinions,
recommending better regulatory practice or drawing up reports, GERT should consult interested
parties and give them the opportunity to comment within a reasonable period.

In principle, the results of the consultation procedure should be made public and indicate any
reservations issued by an NRA at its request (amendment 156). The Council agrees with the Euro-
pean Parliament that GERT should carry out its activities with a high level of transparency
(Amendment 31).

It further supports the principle that GERT should publish both its annual programme and an
annual report on its activities and report to the European Parliament and the Council on its activ-
ities, even though the format of the operational arrangements proposed by the European Parlia-
ment differs from that of the Council (amendments 101,118, 124, 136, 139-142, 152). The
Council agrees with the European Parliament that GERT should observe the confidentiality prin-
ciple (amendments 39-40, 96). More specifically, the Council considers that GERT should not
publish or divulge to third parties information that it processes or receives for which confidential
treatment has been requested. Moreover, GERT's members as well as observers and any other
person should be under an obligation not to disclose information which has come to their
knowledge through the work of GERT or its expert groups.