Source: EURLEX
Language: en
Format: md

**EUROPEAN UNION**

**THE EUROPEAN PARLIAMENT** **THE COUNCIL**

**Brussels, 21 November 2018**
**(OR. en)**

**2016/0286 (COD)** **PE-CONS 51/18**

**TELECOM 211**

**COMPET 494**

**MI 509**

**CONSOM 200**

**JUSTCIV 173**

**CODEC 1209**

**LEGISLATIVE ACTS AND OTHER INSTRUMENTS**

Subject: REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL 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

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**REGULATION (EU) 2018/…**

**OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**of …**

**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**

**(Text with EEA relevance)**

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114

thereof,

Having regard to the proposal from the European Commission,

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After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee **[1]**,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure **[2]**,

**1** OJ C 125, 21.4.2017, p. 65.
**2** Position of the European Parliament of 14 November 2018 (not yet published in the Official
Journal) and decision of the Council of ….

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Whereas:

(1) Directive (EU) 2018/… of the European Parliament and of the Council **[1]** [] aims to create an

internal market for electronic communications within the Union while ensuring a high

level of investment, innovation and consumer protection through enhanced competition.

That Directive also establishes a significant number of new tasks for the Body of European

Regulators for Electronic Communications (‘BEREC’) such as issuing guidelines on

several topics, reporting on technical matters, keeping registers, lists or databases and

delivering opinions on internal market procedures for draft national measures on market

regulation.

(2) Regulation (EU) No 531/2012 of the European Parliament and of the Council **[2]**

complements and supports, in so far as Union-wide roaming is concerned, the rules

provided for by the regulatory framework for electronic communications and lays down

certain tasks for BEREC.

**1**
Directive (EU) 2018/… of the European Parliament and of the Council of … establishing
the European Electronic Communications Code (OJ L …, …, p. …).
 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)) and insert the number, date, title and OJ reference of that
Directive in the footnote.
**2** Regulation (EU) No 531/2012 of the European Parliament and of the Council of
13 June 2012 on roaming on public mobile communications networks within the Union
(OJ L 172, 30.6.2012, p. 10).

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(3) Regulation (EU) 2015/2120 of the European Parliament and of the Council **[1]** lays down

additional tasks for BEREC in relation to open internet access. Moreover, the BEREC

Guidelines of 30 August 2016 on the Implementation by National Regulators of European

Net Neutrality Rules have been welcomed as providing a valuable clarification of the

guarantee of a strong, free and open internet by ensuring the consistent application of the

rules to safeguard equal and non-discriminatory treatment of traffic in the provision of

internet access services and related end-users’ rights.

(4) In view of the need to ensure the development of consistent regulatory practice and the

consistent application of the Union’s regulatory framework for electronic communications,

the Commission established, by Commission Decision 2002/627/EC **[2]**, the European

Regulators Group for Electronic Communications Networks and Services (ERG) to advise

and assist the Commission in consolidating the internal market for electronic

communications networks and services and, more generally, to provide an interface

between national regulatory authorities (NRAs) and the Commission.

**1** Regulation (EU) 2015/2120 of the European Parliament and of the Council of
25 November 2015 laying down measures concerning open internet access and amending
Directive 2002/22/EC on universal service and users’ rights relating to electronic
communications networks and services and Regulation (EU) No 531/2012 on roaming on
public mobile communications networks within the Union (OJ L 310, 26.11.2015, p. 1).
**2** Commission Decision 2002/627/EC of 29 July 2002 establishing the European Regulators
Group for Electronic Communications Networks and Services (OJ L 200, 30.7.2002, p. 38).

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(5) BEREC and the Office were established by Regulation (EC) No 1211/2009 of the

European Parliament and of the Council **[1]** . BEREC replaced the ERG and was intended to

contribute, on one hand, to the development and, on the other, to the better functioning, of

the internal market for electronic communications networks and services by aiming to

ensure the consistent implementation of the regulatory framework for electronic

communications. BEREC acts as a forum for cooperation among NRAs and between

NRAs and the Commission in the exercise of the full range of their responsibilities under

the Union regulatory framework. BEREC was established to provide expertise and to act

independently and transparently.

(6) BEREC also serves as a body for reflection, debate and advice for the

European Parliament, the Council and the Commission in the field of electronic

communications.

(7) The Office was established as a Community body with legal personality to carry out the

tasks referred to in Regulation (EC) No 1211/2009, in particular the provision of

professional and administrative support services to BEREC. In order to support BEREC

efficiently, the Office was given legal, administrative and financial autonomy.

**1** Regulation (EC) No 1211/2009 of the European Parliament and of the Council of
25 November 2009 establishing the Body of European Regulators for Electronic
Communications (BEREC) and the Office (OJ L 337, 18.12.2009, p. 1).

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(8) By Decision 2010/349/EU **[1]**, the Representatives of the Governments of the Member States

decided that the Office would have its seat in Riga. The Seat Agreement between the

Government of the Republic of Latvia and the Office entered into force on 5 August 2011.

(9) In its communication of 6 May 2015 entitled ‘A Digital Single Market Strategy for

Europe’, the Commission envisaged presenting proposals in 2016 for an ambitious

overhaul of the regulatory framework for electronic communications focusing, _inter alia_,

on a more effective regulatory institutional framework in order to make the rules on

electronic communications fit for purpose as part of the creation of the right conditions for

the digital single market. Those include the deployment of very high capacity networks,

more coordinated management of radio spectrum for wireless networks and creating a level

playing field for advanced digital networks and innovative services. That communication

pointed out that the changing market and technological environment make it necessary to

strengthen the institutional framework by enhancing the role of BEREC.

(10) In its resolution of 19 January 2016 entitled ‘Towards a Digital Single Market Act’, the

European Parliament called on the Commission to integrate the digital single market

further by ensuring that a more efficient institutional framework is in place.

**1** Decision taken by common accord between the Representatives of the Governments of the
Member States of 31 May 2010 on the location of the seat of the Office of the Body of
European Regulators for Electronic Communications (BEREC) (2010/349/EU) (OJ L 156,
23.6.2010, p. 12).

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(11) BEREC and the Office have made a positive contribution towards the consistent

implementation of the regulatory framework for electronic communications. However,

there are still significant disparities between Member States as regards regulatory practice,

which affects companies engaged in cross-border business or active in a significant number

of Member States, including where BEREC guidelines exist, but could be further

developed. In order to further contribute to the development of the internal market for

electronic communications throughout the Union as well as to the promotion of access to,

and take-up of, very high capacity networks, competition in the provision of electronic

communications networks, services and associated facilities and the interests of the citizens

of the Union, this Regulation aims to strengthen the role of BEREC. Such a strengthened

role would complement the enhanced role played by BEREC following Regulations (EU)

No 531/2012 and (EU) 2015/2120 and Directive (EU) 2018/… [] .

(12) In light of market and technological developments, which often entail an increased

cross-border dimension, and of the experience gained so far in seeking to ensure consistent

implementation in the field of electronic communications, it is necessary to build on the

work of BEREC and the Office. Their governance and activities should be streamlined and

adapted to the tasks that they are to carry out. Taking into account settled procedures and

the new set of tasks assigned to BEREC and to the Office and in order to strengthen their

effectiveness, additional stability for their management should be provided for and the

decision-making process should be simplified.

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(13) BEREC should 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 carrying out its tasks. BEREC’s independence should not

prevent its Board of Regulators from deliberating on the basis of drafts prepared by

working groups.

(14) The new official name of the Office should be ‘Agency for Support for BEREC’ (the

‘BEREC Office’). The designation ‘BEREC Office’ should be used as the Agency’s short

name. The BEREC Office should enjoy legal, administrative and financial autonomy. To

that end, it is necessary and appropriate that the BEREC Office should be a body of the

Union with legal personality that exercises the powers conferred upon it. As a Union

decentralised agency, the BEREC Office should operate within its mandate and the

existing institutional framework. It should not be seen as representing a Union position to

an outside audience or as committing the Union to legal obligations.

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(15) Moreover, the rules on the governance and operation of the BEREC Office should, where

appropriate, be aligned with the principles of the Joint Statement of the

European Parliament, the Council and the European Commission of 19 July 2012 on

decentralised agencies.

(16) The Union institutions and the NRAs should benefit from BEREC’s assistance and advice,

including on the relevant regulatory impact of any issue concerning the overall dynamics

of digital markets or with regard to their relationship, discussions and exchanges with, and

the dissemination of regulatory best practices to, third parties. In addition to its

contribution to the Commission’s public consultation, BEREC should, when requested,

advise the Commission in the preparation of legislative proposals. BEREC should also be

able to provide advice to the European Parliament and to the Council, on their request or

on its own initiative.

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(17) BEREC, as a technical body with expertise on electronic communications and composed

of representatives from NRAs and the Commission, is best placed to be entrusted with

tasks such as contributing to efficient internal market procedures for draft national

measures as regards market regulation, providing the necessary guidelines to NRAs and

other competent authorities in order to ensure common criteria and a consistent regulatory

approach, and keeping certain registries, databases and lists at Union level. This is without

prejudice to the tasks established for NRAs, which are closest to the electronic

communications markets and their local conditions.

(18) In order to carry out its tasks, BEREC should continue to pool expertise from NRAs.

BEREC should aim to ensure the participation of all NRAs in the fulfilment of its

regulatory tasks and its functioning. To strengthen BEREC, make it more representative

and safeguard its expertise, experience and knowledge of the specific situation in the full

range of national markets, each Member State should ensure that its NRA has adequate

financial and human resources required to participate fully in the work of BEREC.

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(19) In light of the increasing convergence between the sectors providing electronic

communications services, and the horizontal dimension of regulatory issues related to their

development, BEREC and the BEREC Office should be allowed to cooperate with, and

without prejudice to the role of, NRAs, other Union bodies, offices, agencies and advisory

groups, in particular the Radio Spectrum Policy Group established by Commission

Decision 2002/622/EC **[1]**, the European Data Protection Supervisor established by

Regulation (EU) 2018/… of the European Parliament and of the Council **[2]** [], the European

Data Protection Board established by Regulation (EU) 2016/679 of the

European Parliament and of the Council **[3]**, the European Regulators Group for Audiovisual

Media Services established by the Directive 2010/13/EU of the European Parliament and

the Council **[4]**,

**1** Commission Decision 2002/622/EC of 26 July 2002 establishing a Radio Spectrum Policy
Group (OJ L 198, 27.7.2002, p. 49).
**2** Regulation (EU) 2018/… of the European Parliament and of the Council of 24 October 2018
on the protection of natural persons with regard to the processing of personal data by the
Union institutions, bodies, offices and agencies and on the free movement of such data, and
repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L …, …, p. …).
 OJ: Please insert in the text the number of the Regulation and in the footnote the number, the
date and the OJ publication details for the Regulation contained in 2017/0002(COD) PE-CONS 31/18.
**3** Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of personal data and on the
free movement of such data, and repealing Directive 95/46/EC (General Data Protection
Regulation) (OJ L 119, 4.5.2016, p. 1).
**4** Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 on the
coordination of certain provisions laid down by law, regulation and administrative action in
Member States concerning the provision of audiovisual media services (Audiovisual Media
Services Directive) (OJ L 95, 15.4.2010, p. 1).

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the European Union Agency for Network and Information Security established by

Regulation (EU) No 526/2013 of the European Parliament and of the Council **[1]**, the

European GNSS Agency established by Regulation (EU) No 912/2010 of the

European Parliament and of the Council **[2]**, the Consumer Protection Cooperation Network

established pursuant to Regulation (EC) No 2006/2004 of the European Parliament and the

Council **[3]**, the European Competition Network and European standardisation organisations,

as well as with existing committees (such as the Communications Committee and the

Radio Spectrum Committee). BEREC and the BEREC Office should also be able to

cooperate with relevant competent authorities of Member States responsible for

competition, consumer protection and data protection, and with the competent authorities

of third countries, in particular, regulatory authorities competent in the field of electronic

communications or groups of those authorities, as well as with international organisations

when necessary for the carrying out of their tasks. BEREC should also be able to consult

interested parties by means of public consultation.

**1** Regulation (EU) No 526/2013 of the European Parliament and of the Council of
21 May 2013 concerning the European Union Agency for Network and Information Security
(ENISA) and repealing Regulation (EC) No 460/2004 (OJ L 165, 18.6.2013, p. 41).
**2** Regulation (EU) No 912/2010 of the European Parliament and of the Council of
22 September 2010 setting up the European GNSS Agency, repealing Council Regulation
(EC) No 1321/2004 on the establishment of structures for the management of the European
satellite radio navigation programmes and amending Regulation (EC) No 683/2008 of the
European Parliament and of the Council (OJ L 276, 20.10.2010, p. 11).
**3** Regulation (EC) No 2006/2004 of the European Parliament and of the Council of
27 October 2004 on cooperation between national authorities responsible for the
enforcement of consumer protection laws (the Regulation on consumer protection
cooperation) (OJ L 364, 9.12.2004, p. 1).

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(20) BEREC should be entitled to establish working arrangements with competent Union

bodies, offices, agencies and advisory groups, with competent authorities of third countries

and with international organisations, which should not create legal obligations. The goal of

such working arrangements could be, for instance, to develop cooperative relationships and

exchange views on regulatory issues. The Commission should ensure that the necessary

working arrangements are consistent with Union policy and priorities, and that BEREC

operates within its mandate and the existing institutional framework and is not seen as

representing the Union position to an outside audience or as committing the Union to

international obligations.

(21) BEREC should be composed of the Board of Regulators and working groups. The rotation

of the role of Chair of the Board of Regulators is intended to ensure continuity of

BEREC’s work. A rotation of the roles of Vice-Chairs representing various NRAs is also

promoted.

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(22) BEREC should be able to act in the interests of the Union, independently from any external

intervention, including political pressure or commercial interference. It is therefore

important to ensure that the persons appointed to the Board of Regulators enjoy the highest

guarantees of personal and functional independence. The head of an NRA, a member of its

collegiate body, or the replacement of either of them, enjoy such a level of personal and

functional independence. More specifically, they should act independently and objectively,

should not seek or take instructions in the exercise of their functions, and should be

protected against arbitrary dismissal. The function of the alternate on the Board of

Regulators could also be performed by the head of the NRA, a member of its collegiate

body, the replacement of either of them, or by another member of staff of the NRA, who

acts on behalf of, and in accordance with the scope of the mandate of, the member of the

Board of Regulators replaced.

(23) Experience has shown that most of BEREC’s tasks are better carried out through working

groups, which should always ensure equal consideration of all NRAs’ views and

contributions. The Board of Regulators should therefore set up working groups and appoint

their Chairs. NRAs should promptly respond to nomination requests in order to ensure the

quick establishment of working groups, in particular those related to procedures with

time-limits. The working groups should be open to the participation of experts from the

Commission. The staff of the BEREC Office should support and contribute to the working

groups’ activities.

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(24) If necessary, and on a case-by-case basis, the Board of Regulators and the Management

Board should be able to invite any person whose opinion may be of interest to participate

in their meetings as an observer.

(25) Where appropriate and depending on the allocation of tasks to authorities in each

Member State, the views of other competent authorities should be taken into consideration

in the relevant working group, for example through consultation at national level or by

inviting those other authorities to the relevant meetings where their expertise is needed. In

any event, the independence of BEREC should be maintained.

(26) The Board of Regulators and the Management Board should operate in parallel, with the

former deciding mainly on regulatory matters and the latter on administrative matters such

as the budget, staff and audits. In principle and in addition to the representatives of the

Commission, the representatives of the NRAs on the Management Board should be the

same persons as those appointed to the Board of Regulators, but NRAs should be able to

appoint other representatives fulfilling the same requirements.

(27) The appointing authority powers were previously exercised by the Vice-Chair of the

Management Committee of the Office. This Regulation provides for the Management

Board to delegate relevant appointing authority powers to the Director, who is authorised

to sub-delegate those powers. This is intended to contribute to the efficient management of

the staff of the BEREC Office.

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(28) The Board of Regulators and the Management Board should hold at least two ordinary

meetings a year. In light of past experience and the enhanced role of BEREC, the Board of

Regulators or the Management Board may need to hold additional meetings.

(29) The Director should remain the representative of the BEREC Office with regard to legal

and administrative matters. The Management Board should appoint the Director following

an open and transparent selection procedure in order to guarantee a rigorous evaluation of

the candidates and a high level of independence. The term of office of the Administrative

Manager of the Office was previously three years. It is necessary that the Director has a

sufficiently long mandate in order to ensure stability and delivery of a long-term strategy

for the BEREC Office.

(30) Commission Delegated Regulation (EU) No 1271/2013 **[1]** should apply to the BEREC

Office.

(31) The BEREC Office should provide all necessary professional and administrative support

for the work of BEREC, including financial, organisational and logistical support, and

should contribute to BEREC’s regulatory work.

**1** Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the
framework financial regulation for the bodies referred to in Article 208 of Regulation (EU,
Euratom) No 966/2012 of the European Parliament and of the Council (OJ L 328,
7.12.2013, p. 42).

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(32) In order to guarantee the BEREC Office’s autonomy and independence, and in order to

provide support to the work of BEREC, the BEREC Office should have its own budget,

most of which should derive from a contribution from the Union. The budget should be

adequate and should reflect the additional tasks assigned and the enhanced role of BEREC

and the BEREC Office. The financing of the BEREC Office should be subject to an

agreement by the budgetary authority as set out in point 31 of the Inter-institutional

Agreement of 2 December 2013 between the European Parliament, the Council and the

Commission on budgetary discipline, on cooperation in budgetary matters and on sound

financial management **[1]** .

(33) The BEREC Office should be adequately staffed for the purpose of carrying out its duties.

All tasks assigned to the BEREC Office, including professional and administrative services

supporting BEREC in carrying out its regulatory tasks, together with compliance with the

financial, staff and other applicable regulations, and the increased weight of operational

tasks required of the BEREC Office vis-à-vis administrative ones should be duly assessed

and reflected in the resource programming.

**1** OJ C 373, 20.12.2013, p. 1.

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(34) In order to further extend the consistent implementation of the regulatory framework for

electronic communications, the Board of Regulators, the working groups and the

Management Board should be open to the participation of regulatory authorities of third

countries competent in the field of electronic communications where those third countries

have entered into agreements with the Union to that effect, such as EEA EFTA States and

candidate countries.

(35) In line with the principle of transparency, BEREC and the BEREC Office should, where

relevant, publish information on their work on their webpage. In particular, BEREC should

make public any final documents issued in carrying out its tasks, such as opinions,

guidelines, reports, recommendations, common positions and best practices, as well as any

study which is commissioned to support its tasks. BEREC and the BEREC Office should

also make public up-to-date lists of their tasks and up-to-date lists of members, alternates

and other participants in the meetings of their organisational bodies, and the declarations of

interests made by the members of the Board of Regulators, the members of the

Management Board and the Director.

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(36) BEREC, supported by the BEREC Office, should be able to engage in communication

activities within its field of competence, which are not detrimental to BEREC’s core tasks.

The content and implementation of the BEREC’s communication strategy should be

consistent, objective, relevant and coordinated with the strategies and activities of the

Commission and the other institutions in order to take into consideration the broader image

of the Union. The BEREC Office’s communication activities should be carried out in

accordance with relevant communication and dissemination plans adopted by the

Management Board.

(37) In order to carry out their tasks effectively, BEREC and the BEREC Office should have the

right to request all necessary information from the Commission, the NRAs, and, as a last

resort, other authorities and undertakings. Requests for information should provide

reasons, should be proportionate and should not impose an undue burden on the

addressees. NRAs should cooperate with BEREC and the BEREC Office and should

provide them with timely and accurate information to ensure that BEREC and the BEREC

Office are able to fulfil their tasks. BEREC and the BEREC Office should also, pursuant to

the principle of sincere cooperation, share with the Commission, the NRAs and other

competent authorities all necessary information. Where relevant, the confidentiality of

information should be ensured. When assessing if a request is duly justified, BEREC

should take into consideration if the information requested is related to the carrying out of

tasks exclusively attributed to the relevant authorities.

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(38) The BEREC Office should establish a common information and communication system to

avoid duplication of information requests and facilitate communications between all

authorities involved.

(39) In order to ensure a high level of confidentiality and to avoid conflicts of interests, the

rules on those matters applying to members of the organisational bodies of BEREC and the

BEREC Office should apply to their alternates.

(40) Since this Regulation confers new tasks on BEREC and the BEREC Office and other

Union legal acts may confer additional tasks, the Commission should carry out a regular

evaluation of the operation of BEREC and the BEREC Office and the effectiveness of their

institutional structure in a changing digital environment. If, as the outcome of that

evaluation, the Commission finds that the institutional structure is not suited to the carrying

out BEREC’s and the BEREC Office’s tasks, and, in particular, to ensure the consistent

implementation of the regulatory framework for electronic communications, it should

explore all possible options for improving that structure.

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(41) The Office which was established as a Community body with legal personality by

Regulation (EC) No 1211/2009, is succeeded by the BEREC Office established by this

Regulation as regards all ownership, agreements, including the Seat Agreement, legal

obligations, employment contracts, financial commitments and liabilities. The BEREC

Office should take over the staff of the Office whose rights and obligations should not be

affected. In order to ensure continuity in the work of BEREC and the Office, their

representatives, namely the Chair and Vice-Chairs of the Board of Regulators, the

Management Committee and the Administrative Manager, should continue in office until

the end of their term of office.

(42) A significant number of consumers in most Member States continue to rely on traditional

international communications such as telephony calls and SMS messages, despite an

increasing number of consumers having access to number-independent interpersonal

communications services for their international calling needs at lower charges than

traditional services or without monetary payment.

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(43) In 2013 the Commission proposed an impact-assessed Regulation which included a

provision with regulatory measures applicable to intra-EU communications. Additional

data on the intra-EU communications market was collected from 2017 to 2018 by BEREC

and by the Commission through a Commission study and the Eurobarometer. As shown by

that data, significant price differences continue to prevail, for both fixed and mobile

communications, between domestic voice and SMS communications and those terminating

in another Member State in a context of substantial variations of prices between countries,

providers and tariff packages, and between mobile and fixed voice communications.

Providers of publicly available number-based interpersonal communications services often

charge consumption based intra-EU communications prices that largely exceed the prices

for domestic tariffs plus additional costs. On average, the standard price of a fixed or

mobile intra-EU call tends to be three times higher than the standard price of a domestic

call and the standard price of an intra-EU SMS message more than twice as expensive as a

domestic one. However, those arithmetic averages hide significant differences across

Member States. In some cases the standard price of an intra-EU call can be up to eight

times higher than the standard price for domestic calls. As a consequence, customers in

several Member States are exposed to very high prices for intra-EU communications.

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Those high prices mainly affect consumers, in particular those placing such

communications infrequently or having a low volume of consumption, which represent the

vast majority of the consumers using intra-EU communications. At the same time, several

providers propose special offers particularly attractive for business customers and

consumers with a significant consumption of intra-EU communications. Such offers are

often not charged based on actual consumption and may consist in a certain number of

intra-EU call minutes or SMS messages for a fixed monthly fee (add-on offers) or in the

inclusion of a certain number of intra-EU call minutes or SMS messages in the monthly

allowance of call minutes or SMS messages, either without any surcharge or with a small

surcharge. However, the terms of those offers are often not attractive for consumers with

only occasional, unpredictable or relatively low volumes of intra-EU communications.

Consequently, those consumers risk paying excessive prices for their intra-EU

communications and should be protected.

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(44) Moreover, high prices for intra-EU communications represent a barrier to the functioning

of the internal market as they discourage seeking and purchasing goods and services from a

provider located in another Member State. It is hence necessary to set specific and

proportionate limits to the price that providers of publicly available number-based

interpersonal communications services may charge consumers for intra-EU

communications in order to eliminate such high prices.

(45) When providers of publicly available number-based interpersonal communications services

charge their consumers for intra-EU communications at rates wholly or partly based on the

consumption of such services, including in cases of consumption-based deduction from a

monthly or prepaid allowance for such services, those rates should not exceed EUR 0,19

per minute for calls and EUR 0,06 per SMS message. Those caps correspond to the

maximum prices which currently apply, respectively, to regulated roaming calls and SMS

messages. When roaming in the Union, consumers benefit from the protection of the

euro-voice tariff and the euro-SMS tariff that have been progressively replaced by roaming

‘like at home’. Those caps are also considered to be a suitable benchmark for setting the

maximum rate for regulated intra-EU communications for five years starting

from 15 May 2019. The current level of the cap represents a simple, transparent and

proven safety-net for protection against high prices and is suitable as a cap for retail prices

of all regulated intra-EU communications. Both roaming calls within the Union and

intra-EU calls share a similar cost structure.

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(46) The caps should allow the providers of publicly available number-based interpersonal

communications services to recoup their costs, thus ensuring a proportionate intervention

on both the mobile and fixed calls market. The caps will apply directly only to rates based

on actual consumption. They should have a disciplining effect also on those offers where a

certain volume of intra-EU communications is included without being charged separately

as consumers have the choice to switch to a consumption-based tariff for their intra-EU

communications. Intra-EU communication volumes which go beyond those included in a

bundle and are charged separately should be subject to the caps. The measure should

ensure, in a proportionate manner, that consumers with a low level of consumption of

intra-EU communications are protected against high prices and should, at the same time,

have only a moderate impact on providers.

(47) Providers of publicly available number-based interpersonal communications services

should be able to propose to their consumers alternative tariff offers for international

communications with different rates for regulated intra-EU communications and

consumers should be free to opt for such offers expressly, and to switch back any time and

free of charge, even for offers to which consumers subscribed before the entry into force of

such provisions. Only alternative offers for international communications, such as those

covering all or some third countries, should, where accepted by a consumer, be able to free

a provider from its obligation not to exceed the caps for regulated intra-EU

communications. Other advantages, such as subsidised terminal equipment or discounts on

other electronic communications services, offered by providers to consumers are a normal

part of competitive interaction and should not affect the applicability of the price caps for

regulated intra-EU communications.

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(48) Some providers of publicly available number-based interpersonal communications services

may be significantly more affected than the majority of other providers in the Union by a

price cap for regulated intra-EU communications. This could, in particular, be the case for

those providers which generate a particularly high share of their revenues or operational

profits with intra-EU communications or whose domestic margins are low compared to

industry benchmarks. As a consequence of margin compression as regards regulated

intra-EU communications, a provider might not be able to sustain its domestic pricing

model. Such scenarios are highly unlikely to occur because the maximum prices are clearly

above the costs for providing intra-EU communications. Nevertheless, in order to address

such very exceptional scenarios in a proportionate manner, NRAs should be able to grant a

derogation upon the request of such provider in justified and exceptional cases.

(49) Any derogation should be granted only where a provider can demonstrate, against a

relevant benchmark established by BEREC, that it is significantly more affected than most

other providers in the Union and that that impact would significantly weaken that

provider’s capacity to maintain its charging model for domestic communications. Where

an NRA grants a derogation, it should determine the maximum price level that a provider

could apply for regulated intra-EU communications and which would enable it to maintain

a competitive price level for domestic communications. Any such derogation should be

limited to one year and be renewable if the provider demonstrates that the conditions for a

derogation continue to be fulfilled.

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(50) In light of the principle of proportionality, the applicability of the price caps for regulated

intra-EU communications should be limited in time and should expire five years after its

entry into force. Such a limited duration should allow proper assessment of the effects of

the measures and evaluation to what extent there is an ongoing need to protect consumers.

(51) In order to ensure Union-wide, consistent, timely and most effective protection of

consumers negatively affected by the significant price differences of intra-EU

communications, such provisions should be directly applicable and enshrined in a

regulation. The most suitable regulation for that purpose is Regulation (EU) 2015/2120,

which was adopted after an impact assessment which proposed, _inter alia_, a provision on

intra-EU communications as a necessary means by which to complete the internal market

for electronic communications. The likely impacts on providers’ revenues generated by the

provision of intra-EU communications are further mitigated by the application of the

roaming euro-voice tariff and euro-SMS tariff as caps to both fixed and mobile

communications, which serve as a safety mechanism; and by evidence, provided by

BEREC’s 2018 analysis, of a considerable decline in relevant volumes of fixed traffic

affected by the measure in the intervening period. Those provisions should therefore be

introduced as an amendment to Regulation (EU) 2015/2120, which should also be adapted

to ensure that Member States adopt rules on penalties for the infringement of such

provisions.

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(52) Since the objectives of this Regulation, namely to ensure the consistent implementation of

the regulatory framework for electronic communications, in particular in relation to

cross-border aspects and through efficient internal market procedures for draft national

measures, and to ensure that consumers are not charged excessive prices for making

number-based interpersonal communications originating in the Member State of the

consumer’s domestic provider and terminating at any fixed or mobile number in another

Member State, cannot be sufficiently achieved by the Member States but can rather, by

reason of the scale and effects of the action, be better achieved at the level of the Union,

the Union may adopt measures, in accordance with the principle of subsidiarity as set out

in Article 5 of the Treaty on European Union. 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.

(53) This Regulation amends and extends the scope of Regulation (EC) No 1211/2009. Since

the amendments to be made are of a substantial nature, that act should, in the interests of

clarity, be repealed. References to the repealed regulation should be construed as

references to this Regulation,

HAVE ADOPTED THIS REGULATION:

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## **CHAPTER I** **SUBJECT-MATTER AND SCOPE**

_Article 1_

_Subject-matter and scope_

1. This Regulation establishes the Body of European Regulators for Electronic

Communications (‘BEREC’) and the Agency for Support for BEREC (the ‘BEREC

Office’).

2. BEREC and the BEREC Office shall, respectively, replace and succeed the Body of

European Regulators for Electronic Communications and the Office, which were

established by Regulation (EC) No 1211/2009.

_Article 2_

_Legal personality of the BEREC Office_

1. The BEREC Office shall be a body of the Union. It shall have legal personality.

2. In each Member State the BEREC Office shall enjoy the most extensive legal capacity

accorded to legal persons under national law. It shall, in particular, be capable of acquiring

and disposing of movable and immovable property and being party to legal proceedings.

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3. The BEREC Office shall be represented by its Director.

4. The BEREC Office shall have sole responsibility for the tasks assigned to and the powers

conferred on it.

5. The BEREC Office shall have its seat in Riga.

## **CHAPTER II** **OBJECTIVES AND TASKS OF BEREC**

_Article 3_

_Objectives of BEREC_

1. BEREC shall act within the scope of Regulations (EU) No 531/2012 and (EU) 2015/2120

and Directive (EU) 2018/… [] .

2. BEREC shall pursue the objectives set out in Article 3 of Directive (EU) 2018/… [] . In

particular, BEREC shall aim to ensure the consistent implementation of the regulatory

framework for electronic communications within the scope referred to in paragraph 1 of

this Article.

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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3. BEREC shall carry out its tasks independently, impartially, transparently and in a timely

manner.

4. BEREC shall draw upon the expertise available in the national regulatory authorities

(NRAs).

5. In accordance with Article 9(3) of Directive (EU) 2018/… [], each Member State shall

ensure that its NRAs are able to participate fully in the work of organisational bodies of

BEREC.

6 In Member States where there is more than one NRA responsible under Directive

(EU) 2018/… [], those NRAs shall coordinate with each other as necessary.

_Article 4_

_Regulatory tasks of BEREC_

1. BEREC shall have the following regulatory tasks:

(a) to assist and advise the NRAs, the European Parliament, the Council and the

Commission, and cooperate with the NRAs and the Commission, upon request or on

its own initiative, on any technical matter regarding electronic communications

within its competence;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(b) to assist and advise the Commission, upon request, in relation to the preparation of

legislative proposals in the field of electronic communications, including on any

proposed amendment of this Regulation or of Directive (EU) 2018/… [] ;

(c) to issue opinions as referred to in Regulation (EU) No 531/2012 and Directive

(EU) 2018/… [], in particular on:

(i) the resolution of cross-border disputes, in accordance with Article 27 of

Directive (EU) 2018/… [] ;

(ii) draft national measures related to the internal market procedures for market

regulation, in accordance with Articles 32, 33 and 68 of Directive

(EU) 2018/… [] ;

(iii) draft decisions and recommendations on harmonisation, in accordance with

Articles 38 and 93 of Directive (EU) 2018/… [] ;

(iv) end-to-end connectivity between end-users, in accordance with Article 61(2) of

Directive (EU) 2018/… [] ;

(v) the determination of a single maximum Union-wide mobile voice termination

rate and a single maximum Union-wide fixed voice termination rate, in

accordance with Article 75 of Directive (EU) 2018/… [] ;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(vi) the contract summary template, in accordance with Article 102 of Directive

(EU) 2018/… [] ;

(vii) the national implementation and functioning of the general authorisation, and

their impact on the functioning of the internal market, in accordance with

Article 122(3) of Directive (EU) 2018/… [] ;

(viii) where relevant, the market and technological developments regarding the

different types of electronic communications services and their impact on the

application of Title III of Part III of Directive (EU) 2018/… [], in accordance

with Article 123(1) of that Directive;

(d) to issue guidelines on the implementation of the Union regulatory framework for

electronic communications, in particular, as referred to in Regulations (EU)

No 531/2012 and (EU) 2015/2120 and Directive (EU) 2018/… [], on:

(i) the notification template, in accordance with Article 12 of Directive

(EU) 2018/… [] ;

(ii) the consistent implementation of obligations as regards geographical surveys

and forecasts, in accordance with Article 22 of Directive (EU) 2018/… [] ;

(iii) relevant criteria to foster a consistent application of Article 61(3) of Directive

(EU) 2018/… [] ;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(iv) common approaches to the identification of the network termination point in

different network topologies, in accordance with Article 61(7) of Directive

(EU) 2018/… [] ;

(v) common approaches to meet transnational end-user demand, in accordance

with Article 66 of Directive (EU) 2018/… [] ;

(vi) minimum criteria for a reference offer, in accordance with Article 69 of

Directive (EU) 2018/… [] ;

(vii) the fostering of the consistent application by NRAs of the conditions set out in

Article 76(1) of, and the criteria set out in Annex IV to, Directive

(EU) 2018/… [] ;

(viii) criteria for a network to be considered a very high capacity network, in

accordance with Article 82 of Directive (EU) 2018/… [] ;

(ix) common criteria for the assessment of the ability to manage numbering

resources and of the risk of exhaustion of numbering resources, in accordance

with Article 93 of Directive (EU) 2018/… [] ;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(x) relevant quality of service parameters, the applicable measurement methods,

the content and format of publication of the information, and quality

certification mechanisms, in accordance with Article 104 of Directive

(EU) 2018/… [] ;

(xi) how to assess whether the effectiveness of public warning systems under

Article 110(2) of Directive (EU) 2018/… [] is equivalent to the effectiveness of

those under paragraph 1 of that Article;

(xii) wholesale roaming access, in accordance with Article 3(8) of Regulation (EU)

No 531/2012;

(xiii) the implementation of NRAs’ obligations as regards open internet access, in

accordance with Article 5(3) of Regulation (EU) 2015/2120;

(xiv) the parameters to be taken into account by NRAs in their assessment of the

sustainability of the domestic charging model, in accordance with Article 5a(6)

of Regulation (EU) 2015/2120;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(e) to issue other guidelines ensuring the consistent implementation of the regulatory

framework for electronic communications and consistent regulatory decisions by the

NRAs, on its own initiative or upon the request of an NRA, the European Parliament,

the Council or the Commission, in particular for regulatory issues affecting a

significant number of Member States or with a cross-border element;

(f) where relevant, to participate in the Peer Review Forum on draft measures on

selection procedures, in accordance with Article 35 of Directive (EU) 2018/… [] ;

(g) to participate on issues concerning its competence relating to market regulation and

competition related to radio spectrum, in accordance with Article 4 of Directive

(EU) 2018/… [] ;

(h) to conduct analyses of potential transnational markets in accordance with Article 65

of Directive (EU) 2018/… [] and of transnational end-user demand, in accordance

with Article 66 of that Directive;

(i) to monitor and collect information and, where relevant, make up-to-date information

publicly available on the application of Regulation (EU) No 531/2012, in accordance

with Articles 16 and 19 thereof;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(j) to report on technical matters within its competence, in particular on:

(i) the practical application of the opinions and guidelines referred to in points (c),

(d) and (e);

(ii) Member States’ best practices to support the defining of adequate broadband

internet access service, in accordance with Article 84 of Directive

(EU) 2018/… [] ;

(iii) the evolution of pricing and consumption patterns both for domestic and

roaming services, the evolution of actual wholesale roaming rates for

unbalanced traffic, the relationship between retail prices, wholesale charges

and wholesale costs for roaming services as well as on transparency and

comparability of tariffs, in accordance with Article 19 of Regulation (EU)

No 531/2012;

(iv) the outcomes of the annual reports that NRAs shall provide in accordance with

Article 5 of Regulation (EU) 2015/2120, through the publication of an annual

synthesis report;

(v) the market developments in the electronic communications sector, on an annual

basis;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(k) to issue recommendations and common positions, and disseminate regulatory best

practices addressed to the NRAs in order to encourage better and consistent

implementation of the regulatory framework for electronic communications;

(l) to establish and maintain a database of:

(i) the notifications transmitted to the competent authorities by undertakings

subject to general authorisation, in accordance with Article 12 of Directive

(EU) 2018/… [] ;

(ii) the numbering resources with a right of extraterritorial use within the Union, in

accordance with the fourth subparagraph of Article 93(4) of Directive

(EU) 2018/… [] ;

(iii) where relevant, E.164 numbers of Member State emergency services, in

accordance with the third subparagraph of Article 109(8) of Directive

(EU) 2018/… [] ;

(m) to evaluate the needs for regulatory innovation and coordinate actions between NRAs

to enable the development of new innovative electronic communications;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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(n) to promote the modernisation, coordination and standardisation of the collection of

data by NRAs, such data being made available to the public in an open, reusable and

machine-readable format on the BEREC website and the European data portal,

without prejudice to intellectual property rights, personal data protection rules and

the required level of confidentiality;

(o) to carry out other tasks assigned to it by legal acts of the Union, in particular by

Regulations (EU) No 531/2012 and (EU) 2015/2120 and Directive (EU) 2018/… [] .

2. BEREC shall make public its regulatory tasks and shall update that information when new

tasks are assigned to it.

3. BEREC shall make public all of its final opinions, guidelines, reports, recommendations,

common positions and best practices, and any commissioned studies, as well as the

relevant draft documents for the purpose of the public consultations referred to in

paragraph 5.

4. Without prejudice to compliance with relevant Union law, NRAs and the Commission

shall take the utmost account of any guideline, opinion, recommendation, common position

and best practices adopted by BEREC with the aim of ensuring the consistent

implementation of the regulatory framework for electronic communications within the

scope referred to in Article 3(1).

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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Where an NRA deviates from the guidelines referred to in point (e) of paragraph 1, it shall

provide the reasons therefor.

5. BEREC shall, where appropriate, consult interested parties and give them the opportunity

to comment within a reasonable period having regard to the complexity of the matter. Save

in exceptional circumstances, that period shall not be shorter than 30 days. BEREC shall,

without prejudice to Article 38, make the results of such public consultations publicly

available. Such consultations shall take place as early as possible in the decision-making

process.

6. BEREC may, where appropriate, consult and cooperate with relevant national authorities,

such as those competent in the fields of competition, consumer protection and data

protection.

7. BEREC may, where appropriate, cooperate with competent Union bodies, offices, agencies

and advisory groups, as well as with the competent authorities of third countries and with

international organisations, in accordance with Article 35(1).

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## **CHAPTER III** **TASKS OF THE BEREC OFFICE**

_Article 5_

_Tasks of the BEREC Office_

The BEREC Office shall have the following tasks:

(a) to provide professional and administrative support services to BEREC, in particular in

fulfilling its regulatory tasks pursuant to Article 4;

(b) to collect information from NRAs and to exchange and transmit information in relation to

the regulatory tasks assigned to BEREC pursuant to Article 4;

(c) to produce, on the basis of the information referred to in point (b), regular draft reports on

specific aspects of developments in the European electronic communications market, such

as roaming and benchmarking reports, to be submitted to BEREC;

(d) to disseminate regulatory best practices among NRAs, in accordance with point (k) of

Article 4(1);

(e) to assist BEREC in establishing and maintaining registries and databases, in accordance

with point (l) of Article 4(1);

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(f) to assist BEREC in establishing and managing an information and communications system,

in accordance with Article 41;

(g) to assist BEREC in conducting public consultations, in accordance with Article 4(5);

(h) to assist in the preparation of the work and provide other administrative and content-related

support to ensure the smooth functioning of the Board of Regulators;

(i) to assist in setting up working groups, upon the request of the Board of Regulators,

contribute to the regulatory work and provide administrative support to ensure the smooth

functioning of those groups;

(j) to carry out other tasks assigned to it by this Regulation or by other legal acts of the Union.

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## **CHAPTER IV** **ORGANISATION OF BEREC**

_Article 6_

_Organisational structure of BEREC_

BEREC shall comprise:

(a) a Board of Regulators;

(b) working groups.

_Article 7_

_Composition of the Board of Regulators_

1. The Board of Regulators shall be composed of one member from each Member State. Each

member shall have the right to vote.

Each member shall be appointed by the NRA that has primary responsibility for overseeing

the day-to-day operation of the markets for electronic communications networks and

services under Directive (EU) 2018/… [] . The member shall be appointed from among the

head of the NRA, a member of its collegiate body, or the replacement of either of them.

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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2. Each member of the Board of Regulators shall have an alternate, appointed by the NRA.

The alternate shall represent the member in his or her 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.

3. Members of the Board of Regulators and their alternates 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 continuity of the work

of the Board of Regulators, all appointing NRAs shall make efforts to limit the turnover of

their members and, where possible, also of their alternates, and shall aim to achieve a

balanced representation between men and women.

4. The Commission shall participate in all deliberations of the Board of Regulators without

the right to vote and shall be represented at an appropriately high level.

5. An up-to-date list of members of the Board of Regulators and their alternates, together

with their declarations of interest, shall be made public.

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_Article 8_

_Independence of the Board of Regulators_

1. When carrying out the tasks conferred upon it and without prejudice to its members acting

on behalf of their respective NRA, the Board of Regulators shall act independently and

objectively in the interests of the Union, regardless of any particular national or personal

interests.

2. Without prejudice to coordination as referred to in Article 3(6), the members of the Board

of Regulators and their alternates shall neither seek nor take instructions from any

government, institution, person or body.

_Article 9_

_Functions of the Board of Regulators_

The Board of Regulators shall have the following functions:

(a) to fulfil the regulatory tasks of BEREC set out in Article 4, namely to adopt the opinions,

guidelines, reports, recommendations and common positions and disseminate best

practices referred to in that Article, relying, in doing so, on the preparatory work carried

out by the working groups;

(b) to take administrative decisions relating to the organisation of BEREC’s work;

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(c) to adopt BEREC’s annual work programme as referred to in Article 21;

(d) to adopt BEREC’s annual report on its activities as referred to in Article 22;

(e) to adopt rules for the prevention and management of conflicts of interests as referred to in

Article 42, as well as in respect of members of the working groups;

(f) to adopt the detailed rules on the right of access to documents held by BEREC, in

accordance with Article 36;

(g) to adopt and regularly update the communication and dissemination plans as referred to in

Article 37(2), based on an analysis of needs;

(h) to adopt, acting by a two-thirds majority of its members, and make public, its rules of

procedure;

(i) to authorise together with the Director the conclusion of working arrangements with

competent Union bodies, offices, agencies and advisory groups and with competent

authorities of third countries and with international organisations in accordance with

Article 35;

(j) to set up working groups and appoint their Chairs;

(k) to provide the Director of the BEREC Office with guidance with regard to the carrying out

of the tasks of the BEREC Office.

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_Article 10_

_Chair and Vice-Chairs of the Board of Regulators_

1. The Board of Regulators shall appoint, acting by a two-thirds majority of its members, a

Chair and at least two Vice-Chairs from among its members.

2. One of the Vice-Chairs shall automatically assume the duties of the Chair if the latter is not

in a position to perform those duties.

3. The term of office of the Chair shall be one year, renewable once. In order to ensure

continuity of BEREC’s work, the incoming Chair shall serve, where possible, one year as

Vice-Chair before his or her term of office as Chair. The rules of procedure shall provide

for a shorter term where it is not possible for the incoming Chair to serve as Vice-Chair

one year before his or her term of office as Chair.

4. Without prejudice to the role of the Board of Regulators in relation to the Chair’s tasks, the

Chair shall neither seek nor take instruction from any government, institution, person or

body.

5. The Chair shall report to the European Parliament and to the Council on the performance

of BEREC’s tasks when invited to do so.

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_Article 11_

_Meetings of the Board of Regulators_

1. The Chair shall convene the meetings of the Board of Regulators and shall set the agendas

for those meetings, which shall be made public.

2. The Board of Regulators shall hold at least two ordinary meetings a year.

Extraordinary meetings shall be convened at the initiative of the Chair, upon the request of

at least three of its members or upon the request of the Commission.

3. The Director of the BEREC Office shall take part in all deliberations without the right to

vote.

4. The Board of Regulators may invite any person whose opinion may be of interest to it, to

participate in its meetings as an observer.

5. The members and the alternates of the Board of Regulators may, subject to its rules of

procedure, be assisted at the meetings by their advisers or other experts.

6. The BEREC Office shall provide the secretariat for the Board of Regulators.

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_Article 12_

_Voting rules of the Board of Regulators_

1. The Board of Regulators shall take decisions by a simple majority of its members unless

otherwise provided for in this Regulation or in another legal act of the Union.

A majority of two-thirds of the members of the Board of Regulators shall be required for

the opinions referred to in points (c)(ii) and (v) of Article 4(1) and the guidelines referred

to in points (d)(i) to (iv), (vi), (vii) and (x) of Article 4(1).

Notwithstanding the second subparagraph of this paragraph, the Board of Regulators may

decide by a simple majority and on a case-by-case basis, to adopt opinions referred to in

point (c)(ii) of Article 4(1) of this Regulation by simple majority, related to draft measures

falling under Article 76(2) of Directive (EU) 2018/… [], that lead to the launching of the

procedure under Article 33(5) of that Directive.

The decisions of the Board of Regulators shall be made public and shall indicate any

reservations of any member upon his or her request.

2. Each member shall have one vote. In the absence of a member, the alternate shall be

entitled to exercise that member’s right to vote.

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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In the absence of a member and the alternate, the right to vote may be delegated to another

member.

The Chair may delegate the right to vote in any event. The Chair shall take part in the

voting unless he or she has delegated the right to vote.

3. The rules of procedure of the Board of Regulators shall set out in detail the arrangements

governing voting, including the conditions under which one member may act on behalf of

another member, the quorum, and the notification deadlines for meetings. Furthermore, the

rules of procedure shall ensure that the members of the Board of Regulators are provided

with full agendas and draft proposals in advance of each meeting so that they have the

opportunity to propose amendments prior to the vote. The rules of procedure may, _inter_

_alia_, set out a procedure for voting on urgent matters and other practical arrangements for

the operation of the Board of Regulators.

_Article 13_

_Working groups_

1. Where justified and, in particular, in order to implement BEREC’s annual work

programme, the Board of Regulators may set up working groups.

2. The Board of Regulators shall appoint the Chairs of the working groups, representing,

where possible, different NRAs.

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3. The working groups shall be open to the participation of experts from all the NRAs

participating in the work of BEREC and the Commission.

The working groups shall also be open to the participation of the staff of the BEREC

Office, who shall contribute to the regulatory work of, and provide administrative support

to, the working groups.

In the case of the working groups which are set up to carry out the tasks referred to in point

(c)(ii) of Article 4(1), the experts from the Commission shall not participate.

In working groups which are set up to carry out the tasks referred to in points (c)(iv), (vi),

(vii) and (viii), points (d)(i), (ii), (ix), (x) and (xi), point (j)(ii) and point (l) of Article 4(1)

and, where relevant, point (c)(iii) and point (j)(i) of Article 4(1) of this Regulation, the

views of experts from other competent authorities notified pursuant to Article 5(4) of

Directive (EU) 2018/… [] shall be taken into consideration.

The Board of Regulators or the Chairs of the working groups may invite individual experts

recognised as competent in the relevant field to participate in the working group meetings

if necessary on a case-by-case basis.

4. The Board of Regulators shall adopt rules of procedure laying down the practical

arrangements for the operation of the working groups.

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)).

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## **CHAPTER V** **ORGANISATION OF THE BEREC OFFICE**

_Article 14_

_Organisational structure of the BEREC Office_

The BEREC Office shall comprise:

(a) a Management Board;

(b) a Director.

_Article 15_

_Composition of the Management Board_

1. The Management Board shall be composed of the persons appointed as members of the

Board of Regulators and of one high level representative of the Commission. Each member

of the Management Board shall have the right to vote.

Each appointing NRA, as referred to in the second subparagraph of Article 7(1), may

appoint a person other than the member of the Board of Regulators as member of the

Management Board. That person shall be the head of the NRA, a member of its collegiate

body, or the replacement of either of them.

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2. Each member of the Management Board shall have an alternate who represents the

member in his or her absence.

The alternates of each member shall be the persons appointed as alternates of the members

of the Board of Regulators. The representative of the Commission shall also have an

alternate.

Each appointing NRA, as referred to in the second subparagraph of Article 7(1), may

appoint a person other than the alternate of the member of the Board of Regulators as the

alternate of the member of the Management Board. That person shall be the head of the

NRA, a member of its collegiate body, the replacement of either of them, or the staff of the

NRA.

3. The members of the Management Board and their alternates shall neither seek nor take

instructions from any government, institution, person or body.

4. An up-to-date list of members of the Management Board and their alternates, together with

their declarations of interests, shall be made public.

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_Article 16_

_Administrative Functions of the Management Board_

1. The Management Board shall have the following administrative functions:

(a) to provide general orientations for the BEREC Office’s activities and adopt, on an

annual basis, the BEREC Office’s single programming document by a majority of

two-thirds of its members, taking into account the opinion of the Commission and in

accordance with Article 23;

(b) to adopt, by a majority of two-thirds of its members, the annual budget of the

BEREC Office and exercise other functions in respect of the BEREC Office’s budget

pursuant to Chapter VII;

(c) to adopt, make public and proceed with an assessment of the consolidated annual

activity report on the BEREC Office’s activities referred to in Article 27 and submit

both the report and its assessment, by 1 July each year to the European Parliament,

the Council, the Commission and the Court of Auditors;

(d) to adopt the financial rules applicable to the BEREC Office in accordance with

Article 29;

(e) to adopt an anti-fraud strategy, proportionate to fraud risks taking into account the

costs and benefits of the measures to be implemented;

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(f) to ensure adequate follow-up to findings and recommendations stemming from the

internal or external audit reports and evaluations, as well as from investigations of

the European Anti-Fraud Office (OLAF);

(g) to adopt rules for the prevention and management of conflicts of interests as referred

to in Article 42(3);

(h) to adopt and regularly update the communication and dissemination plans referred to

in Article 37(2), based on an analysis of needs;

(i) to adopt its rules of procedure;

(j) to adopt implementing rules for giving effect to the Staff Regulations of Officials of

the European Union and the Conditions of Employment of Other Servants of the

European Union **[1]**, in accordance with Article 110 of the Staff Regulations;

(k) without prejudice to the decision referred to in the first subparagraph of paragraph 2,

to exercise, with respect to the staff of the BEREC Office, the powers conferred by

the Staff Regulations on the Appointing Authority and by the Conditions of

Employment of Other Servants on the Authority Empowered to Conclude a Contract

of Employment (the ‘appointing authority powers’);

**1** Regulation (EEC, Euratom, ECSC) No 259/68 of the Council of 29 February 1968 laying
down the Staff Regulations of Officials and the Conditions of Employment of Other
Servants of the European Communities and instituting special measures temporarily
applicable to officials of the Commission (OJ L 56, 4.3.1968, p. 1).

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(l) to appoint the Director and, where relevant, extend his or her term of office or

remove him or her from office in accordance with Article 32;

(m) to appoint an Accounting Officer, subject to the Staff Regulations and the Conditions

of Employment of Other Servants, who shall be wholly independent in the

performance of his or her duties;

(n) to take all decisions on the establishment of the BEREC Office’s internal structures

and, where necessary, their modification, taking into consideration the BEREC

Office’s activity needs as well as having regard to sound budgetary management.

With regard to point (m) of the first subparagraph, the BEREC Office may appoint the

same Accounting Officer as another Union body or institution. In particular, the BEREC

Office and the Commission may agree that the Commission’s accounting officer shall also

act as Accounting Officer of the BEREC Office.

2. The Management Board shall adopt, in accordance with Article 110 of the Staff

Regulations, a decision based on Article 2(1) of the Staff Regulations and on Article 6 of

the Conditions of Employment of Other Servants, delegating relevant appointing authority

powers to the Director and specifying the conditions under which this delegation of powers

can be suspended. The Director shall be authorised to sub-delegate those powers.

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Where exceptional circumstances so require, the Management Board may, by way of a

decision, temporarily suspend the delegation of the appointing authority powers to the

Director and those sub-delegated by the latter and exercise them itself or delegate them to

one of its members or to a staff member other than the Director.

_Article 17_

_Chairperson and Deputy Chairpersons of the Management Board_

1. The Chairperson and the Deputy Chairpersons of the Management Board shall be the

persons appointed as the Chair and Vice-Chairs of the Board of Regulators. The same term

of office shall apply.

By derogation from the first subparagraph, the Management Board may, by a majority of

two-thirds of its members, elect other members of the Management Board as Chairperson

or Deputy Chairperson(s) from among its members, representing Member States. Their

term of office shall be the same as that of the Chair and Vice-Chairs of the Board of

Regulators.

2. One of the Deputy Chairpersons shall automatically assume the duties of the Chairperson

if the latter is not in a position to perform those duties.

3. The Chairperson of the Management Board shall report to the European Parliament and to

the Council on the carrying out of the tasks of the BEREC Office when invited to do so.

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_Article 18_

_Meetings of the Management Board_

1. The Chairperson shall convene the meetings of the Management Board.

2. The Director of the BEREC Office shall take part in the deliberations, except those related

to Article 32, without the right to vote.

3. The Management Board shall hold at least two ordinary meetings a year. In addition, the

Chairperson shall convene extraordinary meetings on his or her own initiative, upon the

request of the Commission, or of at least three of its members.

4. The Management Board may invite any person whose opinion may be of interest to attend

its meetings as an observer.

5. The members of the Management Board and their alternates may, subject to its rules of

procedure, be assisted at the meetings by advisers or experts.

6. The BEREC Office shall provide the secretariat for the Management Board.

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_Article 19_

_Voting rules of the Management Board_

1. The Management Board shall take decisions by a simple majority of its members, unless

otherwise provided for in this Regulation.

2. Each member shall have one vote. In the absence of a member, the alternate shall be

entitled to exercise the right to vote.

In the absence of a member and the alternate, the right to vote may be delegated to another

member.

3. The Chairperson may delegate the right to vote in any event. He or she shall take part in

the voting unless he or she has delegated the right to vote.

4. The Management Board’s rules of procedure shall establish more detailed voting

arrangements, in particular the procedure for voting on urgent matters and the

circumstances in which a member may act on behalf of another member.

_Article 20_

_Responsibilities of the Director_

1. The Director shall be in charge of the administrative management of the BEREC Office.

The Director shall be accountable to the Management Board.

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2. The Director shall assist the Chair of the Board of Regulators and the Chairperson of the

Management Board in preparing the meetings of their respective bodies.

3. Without prejudice to the powers of the Management Board, the Board of Regulators, and

the Commission, the Director shall be independent in the performance of his or her duties

and shall neither seek nor take instructions from any government, institution, person or

body.

4. The Director shall report to the European Parliament and to the Council on the

performance of his or her duties when invited to do so.

5. The Director shall be the legal representative of the BEREC Office.

6. The Director shall be responsible for the implementation of the BEREC Office’s tasks and

following the guidance provided by the Board of Regulators and the Management Board.

In particular, the Director shall be responsible for:

(a) the day-to-day administration of the BEREC Office;

(b) implementing administrative decisions adopted by the Board of Regulators and the

Management Board;

(c) preparing, and submitting to the Management Board, the single programming

document referred to in Article 23;

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(d) assisting the Board of Regulators in the preparation of BEREC’s annual activity

report as referred to in Article 22;

(e) assisting the Board of Regulators in the preparation of BEREC’s annual work

programme as referred to in Article 21;

(f) implementing the single programming document, and reporting to the Management

Board on its implementation;

(g) preparing the draft consolidated annual report on the BEREC Office’s activities as

referred to in Article 27 and presenting it to the Management Board for assessment

and adoption;

(h) preparing an action plan following-up conclusions of internal or external audit

reports and evaluations, as well as investigations by the OLAF and reporting on

progress at least once a year to the Management Board;

(i) protecting the financial interests of the Union by applying preventive measures

against fraud, corruption and any other illegal activities, by carrying out effective

checks and, if irregularities are detected, by recovering amounts wrongly paid and,

where appropriate, by imposing effective, proportionate and dissuasive

administrative measures, including financial penalties;

(j) preparing an anti-fraud strategy for the BEREC Office and presenting it to the

Management Board for approval;

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(k) preparing draft financial rules applicable to the BEREC Office;

(l) preparing the BEREC Office’s draft statement of estimates of revenue and

expenditure and implementing its budget;

(m) authorising, together with the Board of Regulators, the conclusion of working

arrangements with competent Union bodies, offices, agencies and advisory groups

and with competent authorities of third countries and with international organisations

in accordance with Article 35.

7. The Director shall, under the supervision of the Management Board, take the necessary

measures, in particular with regard to adopting internal administrative instructions and

publishing notices, in order to ensure the functioning of the BEREC Office in accordance

with this Regulation.

8. The Director shall, subject to the prior consent of the Commission, the Management Board

and the Member States concerned, decide whether it is necessary for the purpose of

carrying out the BEREC Office’s tasks in an efficient and effective manner to locate one or

more staff in one or more Member States. The decision shall specify the scope of the

activities to be carried out in a manner that avoids unnecessary costs and duplication of

administrative functions of the BEREC Office. Before such a decision is taken, its impact

in terms of staff allocation and budget shall be set out in the multi-annual programming

document referred to in Article 23(4).

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## **CHAPTER VI** **BEREC PROGRAMMING**

_Article 21_

_Annual Work Programme of BEREC_

1. The Board of Regulators shall adopt the outline of the annual work programme

by 31 January of the year preceding that to which the annual work programme relates.

After consulting the European Parliament, the Council and the Commission on their

priorities, as well as other interested parties in accordance with Article 4(5), the Board of

Regulators shall adopt the final annual work programme by 31 December of that year.

2. The Board of Regulators shall transmit the annual work programme to the

European Parliament, the Council and the Commission as soon as it is adopted.

_Article 22_

_Annual Activity Report of BEREC_

1. The Board of Regulators shall adopt the annual report on the activities of BEREC.

2. The Board of Regulators shall transmit the annual activity report to the

European Parliament, the Council, the Commission and the European Economic and Social

Committee by 15 June each year.

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## **CHAPTER VII** **BUDGET AND PROGRAMMING** **OF THE BEREC OFFICE**

_Article 23_

_Annual and multi-annual programming_

1. Each year, the Director shall draw up a draft programming document containing annual

and multiannual programming (‘single programming document’) in line with Article 32 of

Delegated Regulation (EU) No 1271/2013, taking into account guidelines set by the

Commission.

By 31 January each year, the Management Board shall adopt the draft single programming

document and forward it to the Commission for it to provide its opinion. The draft single

programming document shall also be submitted to the European Parliament and to the

Council.

The Management Board shall subsequently adopt the single programming document,

taking into account the opinion of the Commission. It shall submit the single programming

document, as well as any subsequent updates, to the European Parliament, the Council and

the Commission.

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The single programming document shall become definitive after adoption of the general

budget of the Union and, if necessary, shall be adjusted accordingly.

2. The annual programming document shall comprise detailed objectives and expected

results, including performance indicators. It shall also contain a description of the actions

to be financed and an indication of the financial and human resources allocated to each

action, in accordance with the principles of activity-based budgeting and management, as

referred to in Article 31. The annual programming document shall be consistent with the

BEREC’s outline of the annual work programme and the final annual work programme as

referred to in Article 21 and with the multiannual programming document of the BEREC

Office referred to in paragraph 4 of this Article. It shall clearly indicate tasks that have

been added, changed or deleted in comparison with the previous financial year.

3. The Management Board shall, where necessary, amend the annual programming document

after adoption of BEREC’s final annual work programme referred to in Article 21 and

where a new task is assigned to BEREC or to the BEREC Office.

Any substantial amendment to the annual programming document shall be adopted by the

same procedure as that used to adopt the initial annual programming document. The

Management Board may delegate the power to make non-substantial amendments to the

annual programming document to the Director.

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4. The multiannual programming document shall set out overall strategic programming

including objectives, expected results and performance indicators. It shall also set out

resource programming including multi-annual budget and staff.

The resource programming shall be updated annually. The strategic programming shall be

updated where appropriate, and in particular to address the outcome of the evaluation

referred to in Article 48.

5. The single programming document of the BEREC Office shall include the implementation

of BEREC’s strategy for relations with competent Union bodies, offices, agencies and

advisory groups, with competent authorities of third countries and with international

organisations as referred to in Article 35(3), the actions linked to that strategy and the

specification of associated resources.

_Article 24_

_Establishment of the budget_

1. Each year, the Director shall draw up a provisional draft estimate of the BEREC Office’s

revenue and expenditure (the ‘draft estimate’) for the following financial year, including

the establishment plan, and submit it to the Management Board.

The information contained in the draft estimate shall be consistent with the draft single

programming document referred to in Article 23(1).

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2. The Director shall submit the draft estimate to the Commission by 31 January each year.

3. The Commission shall submit the draft estimate to the budgetary authority together with

the draft general budget of the Union.

4. On the basis of the draft estimate, the Commission shall enter in the draft general budget of

the Union the estimates it considers necessary for the establishment plan and the amount of

the contribution to be charged to the general budget, which it shall place before the

budgetary authority in accordance with Articles 313 and 314 of the Treaty on the

Functioning of the European Union (TFEU).

5. The budgetary authority shall authorise the appropriations for the contribution to the

BEREC Office.

6. The budgetary authority shall adopt the BEREC Office’s establishment plan.

7. The Management Board shall adopt the BEREC Office’s budget. The budget shall become

final following final adoption of the general budget of the Union. Where necessary, it shall

be adjusted accordingly.

8. For any building project likely to have significant implications for the budget of the

BEREC Office, Delegated Regulation (EU) No 1271/2013 shall apply.

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_Article 25_

_Structure of the budget_

1. Estimates of all revenue and expenditure for the BEREC Office shall be prepared each

financial year, corresponding to the calendar year and shall be shown in the BEREC

Office’s budget.

2. The BEREC Office’s budget shall be balanced in terms of revenue and of expenditure.

3. Without prejudice to other resources, the BEREC Office’s revenue shall comprise:

(a) a contribution from the Union;

(b) any voluntary financial contribution from the Member States or the NRAs;

(c) charges for publications and any other service provided by the BEREC Office;

(d) any contribution from third countries or the regulatory authorities competent in the

field of electronic communications of third countries participating in the work of the

BEREC Office, as provided for in Article 35.

4. The expenditure of the BEREC Office shall include staff remuneration, administrative and

infrastructure expenses and operational expenditure.

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_Article 26_

_Implementation of the budget_

1. The Director shall implement the BEREC Office’s budget.

2. Each year the Director shall submit to the European Parliament and the Council all

information relevant to the findings of evaluation procedures.

_Article 27_

_Consolidated Annual Activity Report_

The Management Board shall adopt consolidated annual activity reports in accordance with

Article 47 of Delegated Regulation (EU) No 1271/2013, taking into account guidelines set by the

Commission.

_Article 28_

_Presentation of accounts and discharge_

1. The BEREC Office’s accounting officer shall submit the provisional accounts for the

financial year to the Commission’s Accounting Officer and to the Court of Auditors

by 1 March of the following financial year.

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2. The BEREC Office shall submit the report on the budgetary and financial management to

the European Parliament, the Council and the Court of Auditors by 31 March of the

following financial year.

3. On receipt of the Court of Auditors’ observations on the BEREC Office’s provisional

accounts, the BEREC Office’s accounting officer shall draw up the BEREC Office’s final

accounts under his or her own responsibility. The Director shall submit the final accounts

to the Management Board for an opinion.

4. The Management Board shall deliver an opinion on the BEREC Office’s final accounts.

5. The Director shall submit the final accounts to the European Parliament, the Council, the

Commission and the Court of Auditors, together with the Management Board’s opinion

by 1 July following each financial year.

6. The BEREC Office shall publish the final accounts in the _Official Journal of the_

_European Union_ by 15 November of the following year.

7. The Director shall submit to the Court of Auditors a reply to its observations

by 30 September of the following financial year. The Director shall also submit that reply

to the Management Board.

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8. The Director shall submit to the European Parliament, upon the latter’s request, any

information required for the smooth application of the discharge procedure for the financial

year in question, in accordance with Article 165(3) of Regulation (EU,

Euratom) 2018/1046 of the European Parliament and of the Council **[1]** .

9. On a recommendation from the Council acting by a qualified majority, the

European Parliament shall, before 15 May of year N + 2, give a discharge to the Director

in respect of the implementation of the budget for year N.

_Article 29_

_Financial rules_

The financial rules applicable to the BEREC Office shall be adopted by the Management Board

after consulting the Commission. They shall not diverge from Delegated Regulation (EU)

No 1271/2013 unless such a divergence is required for the BEREC Office’s operation and the

Commission has given its prior consent.

**1** Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of
18 July 2018 on the financial rules applicable to the general budget of the Union, amending
Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU)
No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU)
No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom)
No 966/2012 (OJ L 193, 30.7.2018, p. 1).

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## **CHAPTER VIII** **STAFF OF THE BEREC OFFICE**

_Article 30_

_General provision_

The Staff Regulations and the Conditions of Employment of Other Servants and the rules adopted

by agreement between the institutions of the Union for giving effect to those Staff Regulations and

the Conditions of Employment of Other Servants shall apply to the staff of the BEREC Office.

_Article 31_

_Number of staff of the BEREC Office_

1. In accordance with the principle of activity-based management of human resources, the

BEREC Office shall have the staff required to carry out its duties.

2. The number of staff and corresponding financial resources shall be proposed in accordance

with Article 23(2) and (4) and Article 24(1), taking account of point (a) of Article 5 and all

other tasks assigned to the BEREC Office by this Regulation or by other Union legal acts,

as well as the need for compliance with the regulations applicable to all Union

decentralised agencies.

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_Article 32_

_Appointment of the Director_

1. The Director shall be engaged as a temporary agent of the BEREC Office in accordance

with point (a) of Article 2 of the Conditions of Employment of Other Servants.

2. The Director shall be appointed by the Management Board, following an open and

transparent selection procedure, on the basis of merit, management, administrative and

budgetary skills and the skills and experience relevant to electronic communications

networks and services.

The list of candidates shall not be proposed by the Chairperson or by a Deputy Chairperson

alone. The rules of procedure of the Management Board shall set out in detail the

arrangements governing a procedure to shortlist the number of eligible candidates and a

voting procedure.

3. For the purpose of concluding the contract with the Director, the BEREC Office shall be

represented by the Chairperson of the Management Board.

4. Before appointment, the candidate selected by the Management Board shall be invited to

make a statement before the competent committee of the European Parliament and to

answer questions put by its members.

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5. The term of office of the Director shall be five years. By the end of that period, the

Chairperson of the Management Board shall carry out an assessment that takes into

account an evaluation of the Director’s performance and the BEREC Office’s tasks and

challenges. That assessment shall be submitted to the European Parliament and to the

Council.

6. The Management Board, taking into account the assessment referred to in paragraph 5,

may extend the Director’s term of office once, for no more than five years.

7. The Management Board shall inform the European Parliament if it intends to extend the

Director’s term of office. Within one month before any such extension, the Director may

be invited to make a statement before the competent committee of the European Parliament

and to answer questions put by its members.

8. A Director whose term of office has been extended shall not participate in another

selection procedure for the same post after the end of the cumulative period.

9. Where the term of office is not extended, the Director shall, upon a decision of the

Management Board, remain in office beyond the expiry of the initial term of office until

the appointment of a successor.

10. The Director may be removed from office only upon a decision of the Management Board

acting on a proposal from a member.

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11. The Management Board shall reach decisions on appointment, extension of the term of

office or removal from office of the Director on the basis of a vote of a two-thirds majority

of its members.

_Article 33_

_Seconded national experts and other staff_

1. The BEREC Office may make use of seconded national experts or other staff not employed

by it. The Staff Regulations and the Conditions of Employment of Other Servants shall not

apply to such staff.

2. The Management Board shall adopt a decision laying down rules on the secondment of

national experts to the BEREC Office.

## **CHAPTER IX** **GENERAL PROVISIONS**

_Article 34_

_Privileges and immunities_

The Protocol on the Privileges and Immunities of the European Union shall apply to the BEREC

Office and its staff.

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_Article 35_

_Cooperation with Union bodies, third countries and international organisations_

1. In so far as necessary in order to achieve the objectives set out in this Regulation and carry

out its tasks, and without prejudice to the competences of the Member States and the

institutions of the Union, BEREC and the BEREC Office may cooperate with competent

Union bodies, offices, agencies and advisory groups, with competent authorities of third

countries and with international organisations.

To that end, BEREC and the BEREC Office may, subject to prior approval by the

Commission, establish working arrangements. Those arrangements shall not create legal

obligations.

2. The Board of Regulators, the working groups and the Management Board shall be 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.

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Under the relevant provisions of those agreements, working arrangements shall 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. As regards staff matters, those arrangements shall, in any event, comply with the

Staff Regulations.

3. As part of the annual work programme referred to in Article 21, the Board of Regulators

shall adopt BEREC’s strategy for relations with competent Union bodies, offices, agencies

and advisory groups, with competent authorities of third countries and with international

organisations concerning matters for which BEREC is competent. The Commission,

BEREC and the BEREC Office shall conclude an appropriate working arrangement for the

purpose of ensuring that BEREC and the BEREC Office operate within their mandate and

the existing institutional framework.

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_Article 36_

_Access to documents and data protection_

1. Regulation (EC) No 1049/2001 of the European Parliament and of the Council **[1]** shall apply

to documents held by BEREC and the BEREC Office.

2. The Board of Regulators and the Management Board shall, by … [six months after the date

of entry into force of this Regulation], adopt detailed rules for applying Regulation (EC)

No 1049/2001.

3. The processing of personal data by BEREC and the BEREC Office shall be subject to

Regulation (EU) 2018/… [] .

4. The Board of Regulators and the Management Board shall, by … [six months after the date

of entry into force of this Regulation], establish measures for the application of Regulation

(EU) 2018/… [] by BEREC and the BEREC Office, including those concerning the

appointment of a Data Protection Officer of the BEREC Office. Those measures shall be

established after consulting the European Data Protection Supervisor.

**1** Regulation (EC) No 1049/2001 of the European Parliament and of the Council of
30 May 2001 regarding public access to European Parliament, Council and Commission
documents (OJ L 145, 31.5.2001, p. 43).
 OJ: Please insert in the text the number of the Regulation contained in 2017/0002(COD) PE-CONS 31/18.

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_Article 37_

_Transparency and communication_

1. BEREC and the BEREC Office shall carry out their activities with a high level of

transparency. BEREC and the BEREC Office shall ensure that the public and any

interested parties are given appropriate, objective, reliable and easily accessible

information, in particular in relation to their tasks and the results of their work.

2. BEREC, supported by the BEREC Office, may engage in communication activities on its

own initiative within its field of competence in accordance with relevant communication

and dissemination plans adopted by the Board of Regulators. The allocation of resources

for such support for communication activities within the BEREC Office’s budget shall not

be detrimental to the effective exercise of BEREC´s tasks as referred to in Article 4 or the

BEREC Office´s tasks as referred to in Article 5.

Communication activities of the BEREC Office shall be carried out in accordance with

relevant communication and dissemination plans adopted by the Management Board.

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_Article 38_

_Confidentiality_

1. Without prejudice to Article 36(1) and Article 40(2), BEREC and the BEREC Office shall

not disclose to third parties information that they process or receive in relation to which a

reasoned request for confidential treatment has been made in whole or in part.

2. Members and other participants at the meetings of the Management Board, the Board of

Regulators and the working groups, the Director, seconded national experts and other staff

not employed by the BEREC Office shall comply with the confidentiality requirements

under Article 339 TFEU, even after their duties have ceased.

3. The Board of Regulators and the Management Board shall lay down the practical

arrangements for implementing the confidentiality rules referred to in paragraphs 1 and 2.

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_Article 39_

_Security rules on the protection_

_of classified and sensitive non-classified information_

BEREC and the BEREC Office shall adopt their own security rules equivalent to the Commission’s

security rules for protecting European Union Classified Information and sensitive non-classified

information, _inter alia_ provisions for the exchange, processing and storage of such information as

set out in Commission Decisions (EU, Euratom) 2015/443 **[1]** and (EU, Euratom) 2015/444 **[2]** .

Alternatively, BEREC or the BEREC Office may adopt a decision applying the Commission’s rules

_mutatis mutandis_ .

_Article 40_

_Exchange of information_

1. Upon the reasoned request of BEREC or the BEREC Office, the Commission and the

NRAs represented in the Board of Regulators and other competent authorities shall provide

BEREC or the BEREC Office with all the necessary information, in a timely and accurate

manner, to carry out their tasks, provided that they have legal access to the relevant

information and that the request for information is necessary in relation to the nature of the

task in question.

**1** Commission Decision (EU, Euratom) 2015/443 of 13 March 2015 on Security in the
Commission (OJ L 72, 17.3.2015, p. 41).
**2** Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for
protecting EU classified information (OJ L 72, 17.3.2015, p. 53).

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BEREC or the BEREC Office may also request such information to be provided at regular

intervals and in specified formats. Such requests shall, where possible, be made using

common reporting formats.

2. Upon the reasoned request of the Commission or an NRA, BEREC or the BEREC Office

shall provide, in a timely and accurate manner, any information that is necessary to enable

the Commission, the NRA or other competent authority, to carry out their tasks, pursuant

to the principle of sincere cooperation. Where BEREC or the BEREC Office considers

information to be confidential, the Commission, the NRA or the other competent authority

shall ensure such confidentiality in accordance with Union and national law, including

Regulation (EC) No 1049/2001. Business confidentiality shall not prevent the timely

sharing of information.

3. Before requesting information in accordance with this Article and in order to avoid the

duplication of reporting obligations, BEREC or the BEREC Office shall take account of

any relevant existing information publicly available.

4. Where information is not made available by the NRAs in a timely manner, BEREC or the

BEREC Office may address a reasoned request either to other NRAs and other competent

authorities of the Member State concerned, or directly to the relevant undertakings

providing electronic communications networks, services and associated facilities.

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BEREC or the BEREC Office shall notify the NRAs which have failed to provide the

information of requests in accordance with the first subparagraph.

Upon the request of BEREC or the BEREC Office, the NRAs shall assist BEREC in

collecting the information.

5. Member States shall ensure that NRAs and other competent authorities have the power to

require other responsible national authorities or undertakings providing electronic

communications networks and services, associated facilities, or associated services to

submit all information necessary to carry out their tasks referred to in this Article.

Other responsible national authorities or undertakings as referred to in the first

subparagraph shall provide such information promptly upon request and in accordance

with the timescales and level of detail required.

Member States shall ensure that NRAs and other competent authorities are empowered to

enforce such information requests by imposing penalties that are appropriate, effective,

proportionate and dissuasive.

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_Article 41_

_Information and communication system_

1. The BEREC Office shall establish and manage an information and communication system

with at least the following functions:

(a) a common platform for the exchange of information, providing BEREC, the

Commission and NRAs with the necessary information for the consistent

implementation of the Union regulatory framework for electronic communications;

(b) a dedicated interface for requests for information and notification of those requests as

referred to in Article 40, for access by BEREC, the BEREC Office, the Commission

and NRAs;

(c) a platform for early identification of the need for coordination between NRAs.

2. The Management Board shall adopt the technical and functional specifications for the

purpose of establishing the information and communication system referred to in

paragraph 1. That system shall be subject to intellectual property rights and the required

confidentiality level.

3. The information and communication system shall be operational by … [18 months after

the date of entry into force of this Regulation].

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_Article 42_

_Declarations of interests_

1. Members of the Board of Regulators and the Management Board, the Director, seconded

national experts and other staff not employed by the BEREC Office shall each make a

written declaration indicating their commitments and the absence or presence of any direct

or indirect interests which might be considered to prejudice their independence.

Such declarations shall be made at the time of taking up responsibilities, shall be accurate

and complete, and shall be updated where there is a risk of there being any direct or

indirect interest which might be considered to prejudice the independence of the person

making the declaration.

The declarations made by the members of the Board of Regulators, the members of the

Management Board and the Director shall be made public.

2. Members of the Board of Regulators, the Management Board and the working groups, and

other participants in their meetings, the Director, seconded national experts and other staff

not employed by the BEREC Office shall each accurately and completely declare, at the

latest at the start of each meeting, any interest which might be considered to be prejudicial

to their independence in relation to the items on the agenda, and shall abstain from

participating in the discussion and the voting on, such points.

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3. The Board of Regulators and the Management Board shall lay down the rules for the

prevention and management of conflicts of interests and, in particular, for the practical

arrangements for the application of paragraphs 1 and 2.

_Article 43_

_Combating fraud_

1. In order to facilitate combating fraud, corruption and other unlawful activities under

Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council **[1]**,

by … [six months after the date of entry into force of this Regulation], the BEREC Office

shall accede to the Interinstitutional Agreement of 25 May 1999 between the

European Parliament, the Council of the European Union and the Commission of the

European Communities concerning internal investigations by the European Anti-Fraud

Office (OLAF) **[2]** and adopt appropriate provisions applicable to all staff of the BEREC

Office using the template set out in the Annex to that Agreement.

2. The Court of Auditors shall have the power of audit, on the basis of documents and

on-the-spot inspections, over all grant beneficiaries, contractors and subcontractors who

have received Union funds from the BEREC Office.

**1** Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of
11 September 2013 concerning investigations conducted by the European Anti-Fraud Office
(OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of
the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1).
**2** OJ L 136, 31.5.1999, p. 15.

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3. OLAF may carry out investigations, including on-the-spot checks and inspections, in

accordance with the provisions and procedures laid down in Regulation (EU, Euratom)

No 883/2013 and Council Regulation (Euratom, EC) No 2185/96 **[1]** with a view to

establishing whether there has been fraud, corruption or any other illegal activity affecting

the financial interests of the Union in connection with a grant agreement or grant decision

or a contract funded by the BEREC Office.

4. Without prejudice to paragraphs 1, 2 and 3, cooperation agreements with third countries

and international organisations, contracts, grant agreements and grant decisions shall

contain provisions expressly empowering the Court of Auditors and OLAF to conduct such

audits and investigations, in accordance with their respective competences.

_Article 44_

_Liability_

1. The BEREC Office’s contractual liability shall be governed by the law applicable to the

contract in question.

**1** Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning
on-the-spot checks and inspections carried out by the Commission in order to protect the
European Communities' financial interests against fraud and other irregularities (OJ L 292,
15.11.1996, p. 2).

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2. The Court of Justice of the European Union (Court of Justice) shall have jurisdiction to

give judgment pursuant to any arbitration clause contained in a contract concluded by the

BEREC Office.

3. In the case of non-contractual liability, the BEREC Office shall, in accordance with the

general principles common to the laws of the Member States, make good any damage

caused by its departments or by its staff in the performance of their duties.

4. The Court of Justice shall have jurisdiction in disputes over compensation for damages

referred to in paragraph 3.

5. The personal liability of its staff towards the BEREC Office shall be governed by the

provisions laid down in the Staff Regulations or the Conditions of Employment of Other

Servants applicable to them.

_Article 45_

_Administrative inquiries_

The activities of BEREC and of the BEREC Office shall be subject to the inquiries of the European

Ombudsman in accordance with Article 228 TFEU.

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_Article 46_

_Language arrangements_

1. Regulation No 1/58 **[1]** shall apply to the BEREC Office.

2. The translation services required for the functioning of the BEREC Office shall be

provided by the Translation Centre of the Bodies of the European Union.

## **CHAPTER X** **FINAL PROVISIONS**

_Article 47_

_Headquarters Agreement and operating conditions_

1. The arrangements concerning the accommodation to be provided for the BEREC Office in

the host Member State and the facilities to be made available by that Member State as well

as the specific rules applicable in the host Member State to the Director, members of the

Management Board, the BEREC Office staff and members of their families shall be laid

down in a Headquarters Agreement between the BEREC Office and the host

Member State, concluded after obtaining the approval of the Management Board and no

later than … [two years after the date of entry into force of this Regulation].

**1** Regulation No 1 determining the languages to be used by the European Economic
Community (OJ 17, 6.10.1958, p. 385).

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2. The host Member State shall provide the necessary conditions to ensure the smooth and

efficient functioning of the BEREC Office, including multilingual, European-oriented

schooling and appropriate transport connections.

_Article 48_

_Evaluation_

1. By … [five years after the date of entry into force of this Regulation], and every five years

thereafter, the Commission shall carry out an evaluation in compliance with the

Commission guidelines to assess BEREC’s and the BEREC Office’s performance in

relation to their objectives, mandate, tasks and location. The evaluation shall, in particular,

address the possible need to modify the structure or mandate of BEREC and the BEREC

Office, and the financial implications of any such modification.

2. Where the Commission considers that the continuation of BEREC or the BEREC Office is

no longer justified with regard to its assigned objectives, mandate and tasks, it may

propose that this Regulation be amended or repealed accordingly.

3. The Commission shall report to the European Parliament, the Council and the Management

Board on the findings of its evaluation and shall make those findings public.

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_Article 49_

_Transitional Provisions_

1. The BEREC Office shall succeed the Office that was established by Regulation (EC)

No 1211/2009 as regards all ownership, agreements, legal obligations, employment

contracts, financial commitments and liabilities.

In particular, this Regulation shall not affect the rights and obligations of the staff of the

Office. Their contracts may be renewed under this Regulation in accordance with the Staff

Regulations and the Conditions of Employment of Other Servants and in accordance with

the budgetary constraints of the BEREC Office.

2. With effect from … [the date of entry into force of this Regulation] the Administrative

Manager appointed on the basis of Regulation (EC) No 1211/2009 shall act as Director

with the functions provided for in this Regulation. The other conditions of the

Administrative Manager’s contract shall remain unchanged.

3. The Management Board may decide to renew the term of office of the Director referred to

in paragraph 2 of this Article for a further term. Article 32(5) and (6) shall apply _mutatis_

_mutandis_ . The cumulative term of office of the Director shall not exceed ten years.

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4. The Board of Regulators and the Management Board referred to in Articles 7 and 15 of this

Regulation shall be composed of the members of the Board of Regulators and Management

Committee referred to in Articles 4 and 7 of Regulation (EC) No 1211/2009, until new

representatives are appointed.

5. The Chairs and the Vice-Chairs of the Board of Regulators and of the Management

Committee who have been appointed on the basis of Regulation (EC) No 1211/2009, shall

remain in office as Chair and Vice-Chairs of the Board of Regulators as referred to in

Article 10 of this Regulation, and as Chairperson and Deputy Chairpersons of the

Management Board as referred to in Article 17 of this Regulation for the remaining period

of their one-year term. Appointments of the Chairs and Vice-Chairs of the Board of

Regulators and of the Management Committee on the basis of Regulation (EC)

No 1211/2009, which are made before … [the date of entry into force of this Regulation]

but extend beyond that date, shall be respected.

6. The discharge procedure in respect of the budget approved on the basis of Article 11 of

Regulation (EC) No 1211/2009 shall be carried out in accordance with the rules

established by that Regulation.

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_Article 50_

_Amendments to Regulation (EU) 2015/2120_

Regulation (EU) 2015/2120 is amended as follows:

(1) the title is replaced by the following:

‘Regulation (EU) 2015/2120 of the European Parliament and of the Council

of 25 November 2015 laying down measures concerning open internet access and retail

charges for regulated intra-EU communications and amending Directive 2002/22/EC and

Regulation (EU) No 531/2012’;

(2) in Article 1, the following paragraph is added:

‘3. This Regulation also lays down common rules to ensure that consumers are not

charged excessive prices for making number-based interpersonal communications

originating in the Member State of the consumer’s domestic provider and terminating

at any fixed or mobile number in another Member State.’;

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(3) in the second paragraph of Article 2, the following points are added:

‘      (3) “regulated intra EU communications” means any number-based interpersonal

communications service originating in the Member State of the consumer’s domestic

provider and terminating at any fixed or mobile number of the national numbering

plan of another Member State, and which is charged wholly or partly based on actual

consumption;

(4) “number-based interpersonal communications service” means number-based

interpersonal communications service as defined in point (6) of Article 2 of Directive

(EU) 2018/… of the European Parliament and of the Council* [] .

________________

     - Directive (EU) 2018/… of the European Parliament and of the Council of …

’
establishing the European Electronic Communications Code (OJ L …, …, p. …). ;

 OJ: Please insert in the text the number of the Directive contained in document PE-CONS
52/18 (2016/0288(COD)) and insert the number, date and OJ reference of that Directive in
the footnote.

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(4) the following Article is inserted:

‘ _Article 5a_

_Retail charges for regulated intra-EU communications_

1. From 15 May 2019, any retail price (excluding VAT) charged to consumers for

regulated intra-EU communications shall not exceed EUR 0,19 per minute for calls

and EUR 0,06 per SMS message.

2. Notwithstanding the obligations laid down in paragraph 1, providers of regulated

intra-EU communications may additionally offer, and consumers may expressly

choose, a tariff for international communications including regulated intra-EU

communications different from that set in accordance with paragraph 1, by virtue of

which consumers benefit from a different tariff for regulated intra-EU

communications than they would have been accorded in the absence of such a

choice. Before consumers choose such a different tariff, the provider of regulated

intra-EU communications shall inform them of the nature of the advantages which

would thereby be lost.

3. Where a tariff for regulated intra-EU communications as referred to in paragraph 2

exceeds the caps laid down in paragraph 1, consumers who have not confirmed or

expressed, within a period of two months from 15 May 2019, a choice for any tariff

as referred to in paragraph 2, shall automatically be provided with the tariffs laid

down in paragraph 1.

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4. Consumers may switch from or back to the tariffs laid down in paragraph 1 within

one working day of receipt of the request by the provider, free of charge and

providers shall ensure that such a switch does not entail conditions or restrictions

with regard to elements of the subscriptions other than regulated intra-EU

communications.

5. Where the maximum prices referred to in paragraph 1 are denominated in a currency

other than the euro, the initial limits shall be determined in those currencies by

applying the average of the reference exchange rates published on 15 January,

15 February and 15 March 2019 by the European Central Bank in the _Official_

_Journal of the European Union_ . The limits in currencies other than the euro shall be

revised annually from 2020. The annually revised limits in those currencies shall

apply from 15 May using the average of the reference exchange rates published

on 15 January, 15 February and 15 March of the same year.

6. National regulatory authorities shall monitor the market and price developments for

regulated intra-EU communications and shall report to the Commission.

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Where a provider of regulated intra-EU communications establishes that, due to

specific and exceptional circumstances distinguishing it from most other Union

providers, the application of the cap referred to in paragraph 1 would have significant

impact on that provider’s capacity to sustain its existing prices for domestic

communications, a national regulatory authority may, upon that provider’s request,

grant a derogation from paragraph 1 only to the extent necessary and for a renewable

period of one year. The assessment of the sustainability of the domestic charging

model shall be based on relevant objective factors specific to the provider of

regulated intra-EU communications, as well as the level of domestic prices and

revenues.

Where the applicant provider has discharged the applicable evidentiary burden, the

national regulatory authority shall determine the maximum price level in excess of

one or both of the caps set out in paragraph 1 which would be indispensable in order

to ensure the sustainability of the provider’s domestic charging model. BEREC shall

publish guidelines on the parameters to be taken into account by national regulatory

authorities in their assessments.’;

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(5) in Article 6, the following paragraph is added:

‘Member States shall lay down the rules on penalties applicable to infringements of

Article 5a and shall take all measures necessary to ensure that they are implemented. The

penalties provided for shall be effective, proportionate and dissuasive. Member States shall

notify the Commission of the rules and measures laid down to ensure the implementation

of Article 5a by 15 May 2019 and shall notify the Commission without delay of any

subsequent amendment affecting them.’;

(6) in Article 10, the following paragraph is added:

‘5. Article 5a shall expire on 14 May 2024.’.

_Article 51_

_Repeal_

Regulation (EC) No 1211/2009 is repealed.

References to the repealed Regulation shall be construed as references to this Regulation and shall

be read in accordance with the correlation table in the Annex.

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_Article 52_

_Entry into force_

This Regulation shall enter into force on the third day following that of its publication in the

_Official Journal of the European Union_ .

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at …,

_For the European Parliament_ _For the Council_

_The President_ _The President_

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**ANNEX**

Correlation table

|Regulation (EC) No 1211/2009|This Regulation|
|---|---|
|Article 1(1)<br>Article 1(2)<br>Article 1(3)<br>Article 1(4)<br>Article 2<br>Article 3<br>Article 4(1)<br>Article 4(2)<br>Article 4(3)<br>Article 4 (4)<br>Article 4(5)<br>Article 4(6)<br>Article 4(7)<br>Article 4(8)<br>Article 4 (9)<br>Article 4 (10)<br>Article 4 (11)<br>Article 5<br>Article 6(1)<br>Article 6(2)<br>Article 6(3)<br>Article 6(4)<br>Article 6(5)<br>Article 7(1)|Article 1<br>Article 3(1)<br>Article 3(2) and (3)<br>Article 3(4) and points (a) and (b) of Article 4(1)<br>Article 4<br>Article 4<br>Article 6<br>Article 7(1), (2) and (4), Article 8(1) and (2)<br>Article 11(4) and (5), Article 36<br>Article 10(1), (2) and (3)<br>Article 10(4)<br>Article 11<br>Article 13<br>Article 7(4)<br>Article 12(1) and (2)<br>Article 12(3)<br>Article 5<br>Article 4<br>Article 2(1)<br>Article 5<br>Article 14(1)<br>Article 2(2)<br>Article 20, Article 31<br>Article 15(1)|

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|Regulation (EC) No 1211/2009|This Regulation|
|---|---|
|Article 7(2)<br>Article 7(3)<br>Article 7(4)<br>Article 7(5)<br>Article 8<br>Article 9<br>Article 10(1)<br>Article 10(2)<br>Article 10(3)<br>Article 10(4)<br>Article 11<br>Article 12<br>Article 13<br>Article 14<br>Article 15<br>Article 16<br>Article 17<br>Article 18<br>Article 19<br>Article 20<br>Article 21<br>Article 22<br>Article 23<br>Article 24<br>Article 25<br>Article 26|Article 32<br>Article 20(6)<br>Point (k) of Article 16(1)<br>Article 13<br>Article 32<br>Article 20<br>Article 30, Article 34<br>Point (j) of Article 16(1)<br>Article 16(2)<br>Article 33<br>Article 25<br>Article 24<br>Article 26<br> -<br>Article 29<br>Article 43<br>Article 4(5)<br>Article 37<br>Article 39, Article 40<br>Article 38<br>Article 42<br>Article 36<br>Article 34<br>Article 44<br>Article 48<br>Article 52|

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