Alessandro Bruni, KU Leuven, WP3
The technological novelties and new opportunities created within the framework of the Safe-DEED project aim to increase opportunities for businesses in the context of the EU Digital Single Market. Unfortunately, when it comes to the EU governance in the EU Digital Single Market, cross-border cooperation between different EU agencies and bodies is still not vibrant.
Besides the three main institutions (Parliament, Council and Commission), 45 agencies and decentralised bodies are established at the EU level. Such agencies and bodies are active in different domains and have different structures and responsibilities. Their primary roles generally constitute filling the gap between public and private parties and between European and national frameworks, as well as ensuring harmonised enforcement of EU provisions.
In the electronic communication context, a central role has been assigned to the Body of European Regulators for Electronic Communications (BEREC). BEREC, initially the European Regulators Group for Electronic Communications Networks and Services (ERG), has been created to ensure harmonised implementation of the EU electronic communication framework. Similarly to other EU agencies, BEREC aims to fill the gap between the European Commission and the NRAs. BEREC has pursued its purpose through issuing guidelines, reporting on technical issues, keeping registers, and delivering opinions. Similarly to other EU agencies and bodies, BEREC has to carry out its task independently and impartially.
Starting from 2015, both the EC and the European Parliament have called for a more efficient regulatory, institutional framework to ensure that the EU electronic communication legislation is able to support the deployment of the EU Digital Single Market. The necessity to implement BEREC tasks and broaden its activities to a new domain outside the electronic communication context was justified by the disparities in implementing electronic communication framework within the different Member States. As a result, the differences in the implementation of such framework had determined a detrimental economic effected on operators active in more than one country.
As a result, the recently approved (BEREC Regulation), implementing the tasks and capabilities of BEREC, does not affect BEREC’s autonomy and independence in favour of the EC. According to the new Regulation, BEREC’s functions are expected to go beyond the communication sector. In particular, it is specified in the Regulation that the agency is to provide assistance and advice ‘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’. Thus, BEREC is expected to become a sort of gatekeeper of digital policy initiatives, including the ones addressing data and application platforms.
In light of the analysis on effective procedural powers of BEREC in the Digital Single Market, context-specific attention should be paid to Arts. 40 and 35 of the BEREC Regulation.
Art. 40 of the BEREC Regulation foresees a detailed set of communication and information handling procedures between BEREC and national and EU agencies and bodies. To ensure efficient communication channels, Art. 40 gives BEREC enforcement powers over the addresses of its requests in case of non-compliance with any BEREC information request. Doing so, Art. 40 of the BEREC Regulation reinforces the assumption that the EU regulators wanted to appoint BEREC as a central point of contact for Digital Single Market initiatives.
According to Art. 35, BEREC can establish working arrangements with relevant EU, national and international public entities for reaching the objectives listed in the BEREC Regulation and the European Electronic Communication Code. BEREC, together with its office, can ‘cooperate with competent Union bodies, offices, agencies and advisory groups, with competent authorities of third countries and with international organisations.’ Unfortunately, after having assigned BEREC the possibility to establish working assignment, Art. 35 of the BEREC Regulation underlines that this cooperation is ‘subject to prior approval by the Commission’ and clarifies such arrangements ‘do not determine legal obligations’. The lack of legally binding nature of any collaborative work assignment that BEREC will intend to establish with relevant players risks to undermine the possibility to develop and enforce cross-sector measures that can support the development of the Digital Single Market. Furthermore, subjecting any decision on working collaborations among agencies to the EC approval undermines the independence of BEREC, in conflict with the EU acquis.
To conclude, the measures that are foreseen in the BEREC Regulation reinforce BEREC “traditional” tasks (i.e. information sharing). At the same time, the EU legislative initiative does not provide BEREC with new procedural powers, hampering the development of a cross-sector strategy to support the businesses in the Digital Single Market context.
 The content of the blog is an extract of the working paper of Alessandro Bruni from KU Leuven, Safe-DEED consortium partner and WP3 (legal and ethical issues) leader. For an extensive analysis on the topic and list of relevant sources: Bruni, Alessandro, 5G deployment: The role and challenges of regulatory bodies in ensuring convergence within the EU, (July 3, 2020)., freely available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3642489