Abstract
This chapter highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been—and still is—in the process of moving from one legal paradigm to another. The first paradigm is more traditional, static, formalistic, and self-contained (mono-disciplinary). Its hallmark is the use of legal definitions and concepts to create categories in which phenomena are placed, by way of pigeonholing or labeling, and to which consequences are attached. It was more appropriate in earlier times when EU law was concerned with establishing market access and realizing the Internal Market. The second paradigm is more dynamic, integrative, and inter-disciplinary. Its hallmark is the use of general guidelines and principles to assess specific situations in a wider sectorial setting, with progressive refinement, until the point where a conclusion can be reached and consequences attached. It leads to ‘managed competition’, where EU law integrates other objectives besides market access. As for substantive law, EU electronic communications law, since 2002, presents the best—albeit not complete—example of the new paradigm, with its reliance on technological neutrality and economic analysis. EU energy law has not gone as far down that path. Interestingly, the ECJ judgment in Altmark can be seen as an attempt to steer the law concerning SGEIs away from formalism, towards the new paradigm. However, developments following Altmark show that the other institutions have not fully followed the ECJ. As for institutions, EU electronic communications and energy law have followed a similar path, away from formalistic separations (i) between EU and Member State institutions, (ii) along national borders or (iii) between regulation and competition law. At the same time, the separation between the regulatory authority and the national legislative and executive powers has been strengthened. The policing of SGEIs under Article 106(2) TFEU would benefit from following a similar institutional path.
Leigh Hancher is Professor of European Law, Tilburg Law School, Tilburg University and a member of the Tilburg Law and Economics Center (TILEC). Of Counsel, Allen & Overy. Pierre Larouche is Professor of Competition Law, Tilburg Law School, Tilburg University and a founding director of TILEC. A version of this chapter was published as “The coming of age of EU regulation of network industries and services of general economic interest”, in Paul Craig and Grainne de Búrca, eds., The Evolution of EU Law, 2nd ed (Oxford: OUP, 2011) 743–781. Since this chapter was completed, the Commission proceeded to adopt a new package of legislation concerning Services of General Economic Interest. See Regulation 360/2012 of 25 April 2012 on the application of Articles 107 and 108 TFEU to de minimis aid granted to undertakings providing SGEIs [2012] OJ L 114/8; Decision of 20 December 2011 on the application of Article 106(2) TFEU to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of SGEIs [2012] OJ L 7/3; Communication from the Commission on the application of EU State aid rules to compensation granted for the provision of SGEIs [2012] OJ C8/4 and Communication—EU framework for State aid in the form of public service compensation [2012] OJ C 8/15.
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Notes
- 1.
Monti 2010, 73.
- 2.
Ibid., 44.
- 3.
Directive 90/388 on competition in the markets for telecommunications services [1990] OJ L 192/10, Article 1(1).
- 4.
Directive 94/46 amending Directive 88/301 and Directive 90/388 in particular with regard to satellite communications [1994] OJ L 268/15.
- 5.
Directive 95/51 amending Directive 90/388 with regard to the abolition of the restrictions on the use of cable television networks for the provision of already liberalized telecommunications services [1995] OJ L 256/49.
- 6.
Directive 96/19 amending Directive 90/388 with regard to the implementation of full competition in telecommunications markets [1996] OJ L 74/13.
- 7.
Ibid.
- 8.
Directive 90/388 supra note 3, as amended by Directive 94/46 supra note 4, Directive 95/51 supra note 5 and Directive 96/19 supra note 6.
- 9.
Directive 90/387 on the establishment of the internal market for telecommunications services through the implementation of open network provision [1990] OJ L 192/1 (as amended by Directive 97/51 amending Directives 90/387 and 92/44 for the purpose of adaptation to a competitive environment in telecommunications [1997] OJ L 295/23), Directive 92/44 on the application of open network provision to leased lines [1992] OJ L 165/27 (as amended by Directive 97/51), Directive 97/33 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) [1997] OJ L 199/32, Directive 98/10 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment [1998] OJ L 101/24 and Directive 97/13 on a common framework for general authorizations and individual licenses in the field of telecommunications services [1997] OJ L 117/15.
- 10.
As reflected in the text of Articles 4a, 4c of Directive 90/388 supra note 3, as amended by Directive 96/19, supra note 6.
- 11.
Ibid.
- 12.
Supra note 9.
- 13.
With the possibility to stray from the 25 % threshold either way: Directive 97/33 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) [1997] OJ L 199/32, Article 4(3).
- 14.
These are defined peremptorily in Annex I of Directive 97/33, ibid. as (i) fixed public telephone network, (ii) fixed public telephone services, (iii) leased lines as well as (iv) interconnection for mobile networks and services.
- 15.
Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) [2002] OJ L 108/7, Directive 2002/20 on the authorization of electronic communications networks and services (Authorization Directive) [2002] OJ L 108/21, Directive 2002/21 on a common regulatory framework for electronic communications networks and services (Framework Directive) [2002] OJ L 108/33, Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) [2002] OJ L 108/51, to which one should add Directive 2002/77 on competition in the markets for electronic communications networks and services [2002] OJ L 249/21.
- 16.
The first recommendation on relevant markets, Recommendation 2003/311 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21 on a common regulatory framework for electronic communication networks and services [2003] OJ L 114/45, was based on a list of markets found in Annex I to Directive 2002/21, ibid. but the second one was established without prior legislative determination: Commission Recommendation 2007/879 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21 on a common regulatory framework for electronic communications networks and services [2007] OJ L 344/65.
- 17.
Regulatory authorities can also propose other remedies, subject to Commission approval: Directive 2002/19 supra note 15 Article 8(3).
- 18.
Larouche and de Visser 2006.
- 19.
Recommendation 2007/879, para 2. In fact, it can be argued that market selection is the ‘triggering factor’ that is most material in the outcome, much like ‘abuse’ is the triggering factor in the application of Article 102 TFEU (given that dominant firms will not infringe Article 102 TFEU unless they abuse their position).
- 20.
Directive 2002/22 supra note 15, Article 3, 8–14.
- 21.
Directive 2002/21 supra note 15, Rec. 18.
- 22.
Van der Haar 2008, upon which the following discussion is based.
- 23.
See for instance the continued reluctance to include broadband networks based on cable TV, on the one hand, and on ADSL, on the other hand, on the same market for the purpose of SMP analysis: Recommendation 2007/879 supra note 16 and the Explanatory Note, C(2007)5406 (17 December 2007), p. 31.
- 24.
This was the outcome of one of the key policy discussions which fed into the 2002 framework, concerning the convergence between the telecommunications, media, and ICT sectors: see Green Paper on the Convergence of the Telecommunications, Media and Information Technology Sectors, and the Implications For Regulation, COM(97)623 (3 December 1997) and the subsequent consultation rounds.
- 25.
This did not eliminate all game-playing around definitions, given that Directive 2002/19 supra note 15, Article 4 extends the obligation to negotiate interconnection only to the benefit of providers of public electronic communications networks: the ECJ became entangled in this issue in Case C-227/07 Commission v Poland [2008] ECR I-8403.
- 26.
Common to the whole of the 2002 framework: Directive 2002/21 supra note 15, Article 8.
- 27.
Directive 2002/21, ibid., Articles 14–16.
- 28.
Directive 2002/19 supra note 15, Articles 9–13, Directive 2002/22 supra note 15, Article 17.
- 29.
Indeed, when revising the first Recommendation on relevant markets supra note 16, the Commission removed 11 markets from the list to reflect the changes which took place between 2003 and 2008.
- 30.
Directive 2002/21, Rec 5, Articles 1(3) and 2(c).
- 31.
Directive 89/552 on the coordination of certain provisions laid down by law, regulation, or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) [1989] OJ L 298/23, as amended by Directive 2007/65 amending Directive 89/552 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities [2007] OJ L 332/27.
- 32.
Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) [2000] OJ L 178/1.
- 33.
Directive 2002/21 supra note 15, Article 2(c).
- 34.
Directive 2000/31 supra note 32, Article 2(a).
- 35.
Directive 89/552 supra note 31, Article 1(a).
- 36.
Ibid., Articles 1(a), (e) and (g), as well as Directive 2007/65 supra note 31, Rec. 16-25. See also Van der Haar 2008.
- 37.
Chirico et al. 2007.
- 38.
Larouche 2002.
- 39.
For instance, since the 2002 framework was enacted, regulation of mobile operators has increased, with regulatory intervention on mobile termination, international roaming, SMS termination, and international data roaming.
- 40.
For one, the most regarded NRA, Ofcom, has taken the habit of launching broad consultations—on the FCC model—on various topics of interest, in order to assess whether and if so, which regulatory intervention is warranted. See in recent years the Strategic Review of Telecoms or the Next Generation Access consultation round, to name but the main ones.
- 41.
Directive 96/92 concerning common rules for the internal market in electricity [1997] OJ L 27/20.
- 42.
Directive 98/30 concerning common rules for the internal market in natural gas [1998] OJ L 204/1.
- 43.
Roggenkamp 2006.
- 44.
Directive 2003/54 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC [2003] OJ L 176/37; Directive 2003/55 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC [2003] OJ L 176/57; Regulation 1228/2003 on conditions for access to the network for cross-border exchanges in electricity [2003] OJ L 176/1 and Regulation 1775/2005 on conditions for access to the natural gas transmission networks [2005] OJ L 289/1.
- 45.
See generally, Jones and Webster 2006.
- 46.
24 April 2010, Case C-265/08 Federutility [2010] ECR I-3377.
- 47.
Ibid., Rec 20.
- 48.
Ibid., Rec 37.
- 49.
Directive 2009/72 concerning common rules for the internal market in electricity and repealing Directive 2003/54 [2009] OJ L 211/55; Directive 2009/73 concerning common rules for the internal market in natural gas and repealing Directive 2003/55 [2009] OJ L 211/94.
- 50.
See Directive 2009/72, ibid., Article 36 and Directive 2009/73, ibid., Article 30.
- 51.
See Directive 2009/72, ibid., Article 34(5) and Directive 2009/73, ibid., Article 38(5).
- 52.
Directive 2009/28 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L 140/16, Article 16.
- 53.
For a detailed discussion see Cabau 2010.
- 54.
One needs only to think of the directives concerning the harmonization of regulation in the financial sector, be it in the banking, insurance or other financial markets.
- 55.
See the TFEU Protocol (No 26) on Services of General Interest [2010] OJ C 83/310, as well as Article 36 of the Charter of Fundamental Rights of the EU.
- 56.
See for instance in public service broadcasting—where the position of Member States is further bolstered by TFEU Protocol (No 29) on the system of public broadcasting in the Member States [2010] OJ C 83/312—where under the guise of marginal control, the Commission reviews the scope of the public mission of public broadcasters in great detail: Commission Communication on the application of State aid rules to public service broadcasting [2009] OJ C 257/1, paras 43–49 and for a good illustration, Case E-3/05, Financing of public broadcasting in Germany [2007] OJ C 185/1, Rec. 237-242.
- 57.
Case C-41/90 Höfner [1991] ECR I-1979.
- 58.
Case C-180/98 Pavlov [2000] ECR I-6451.
- 59.
Case C-475/99 Ambulanz Glöckner [2001] ECR I-8089.
- 60.
Case C-159/91 Poucet and Pistre [1993] ECR I-637.
- 61.
Case C-264/01 AOK [2004] ECR I-2493.
- 62.
Case 263/86 Humbel [1988] ECR 5365.
- 63.
Green Paper on Services of General Interest, COM(2003)270 final (21 May 2003), White Paper on services of general interest, COM(2004) 374 final (12 May 2004), Commission Communication on services of general interest, including social services of general interest: a new European commitment, COM(2007) 725 final (20 November 2007).
- 64.
Supra note 55.
- 65.
See further, Hancher 1999.
- 66.
Case 155/73 Sacchi [1974] ECR 409.
- 67.
Case C-202/88 France v. Commission [1991] ECR I-1223 and Case C-271/90 Spain v. Commission [1992] ECR I-5833.
- 68.
Case C-320/91 Corbeau [1993] ECR I-2533.
- 69.
Supra note 59.
- 70.
Case C-244/94 FFSA [1995] ECR I-4013; Case C-53/00 Ferring [2001] ECR I-9067; Case T-46/97 SIC [2000] ECR II-2125.
- 71.
These two approaches are best outlined in AG Jacobs’ opinion in Case C-126/01 GEMO [2003] ECR I-13769.
- 72.
Of course, it is also possible that the aid would qualify for one of the exemptions set out under Article 107(2) and (3) TFEU and implementing legislation.
- 73.
Case C-280/00 Altmark [2003] ECR I-7747.
- 74.
Ibid., paras 88–95.
- 75.
The Guidelines on State aid to public service broadcasting supra note 56 aptly generalize this attitude when Altmark is mentioned and dealt with in a single paragraph (para 23).
- 76.
Case N-37/03, BBC Digital Curriculum [2003] OJ C 271/47.
- 77.
Case T-266/02, Deutsche Post AG v. Commission [2008] ECR II-1233, para 74.
- 78.
Of course, one could argue that the term ‘public service obligation’ made sense in the specific context of Altmark supra note 73 which concerned the transport sector. After all, Article 93 TFEU refers to ‘public service obligations’. Yet it can be seen that, in subsequent cases, the Court continued to use ‘public service obligation’, even outside of the transport sector: see for instance Case C-451/03 Servizi Ausiliari Dottori Commercialisti [2006] ECR I-2941, para 63 (provision of tax advice to individuals) or Case T-274/01, Valmont Nederland BV [2004] ECR II-3145, para 132 (public use of a car park).
- 79.
Commission Guidelines for the application of State aid rules in relation to rapid deployment of broadband networks [2009] OJ C 235/7, paras 20–30.
- 80.
This narrow reading of SGEI is put forward in the Green Paper on Services of General Interest supra note 63.
- 81.
Case T-289/03 BUPA v. Commission [2008] ECR II-81.
- 82.
The issue was uncontested as between the parties.
- 83.
Ibid., Rec. 162 and ff. The Court goes on by completely collapsing the Altmark and Article 106(2) tests by examining, in its discussion of Altmark supra note 73, the extent of the Commission review power over whether the service is an SGEI and then the actual conclusion that the service if an SGEI.
- 84.
Ibid, Rec. 186-190.
- 85.
See Deutsche Post AG supra note 77 Rec 72-74; Case T-254/00 Hotel Cipriani v. Commission [2008] ECR II-3269 Rec 110; Case T-189/03 ASM Brescia v. Commission [2009] ECR II-1831 Rec 124 and ff.
- 86.
Case T-354/05 TF1 v. Commission [2009] ECR II-471 Rec. 126-140.
- 87.
In its previous ruling in Ferring supra note 70, the Court had not addressed this concept at all. Its ruling was criticized for leaving a wide discretion to Member States to finance the activities of inefficient, and invariably incumbent, firms. This would not only prevent the optimal allocation of taxpayers’ money but might also allow these same firms to expand their activities into neighboring, liberalized markets.
- 88.
Case C-231/03 Coname [2005] ECR I-7287; Case C-458/03 Parking Brixen [2005] ECR I-8585.
- 89.
See in this respect, EP and Council Regulation 1370/2007 on public passenger transport services by rail and road and repealing Regulation 1191/69 and 1107/70 [2007] OJ L 315/1, Rec. 27. See also Case C16/07 Postbus-Austria [2009] OJ L 306/26, para 86.
- 90.
Case C-83/01 P Chronopost [2003] ECR I-6993.
- 91.
Ibid., para 38.
- 92.
Ibid., para 40.
- 93.
In the meantime, some commentators have contended that Chronopost stands for a ‘lex specialis’ which must be applied when no market exists for the services provided, and consequently no comparable operator can be found as a suitable comparator.
- 94.
Supra note 81.
- 95.
Community framework for State aid in the form of public service compensation [2005] OJ C 297/4.
- 96.
See supra note 56 and the accompanying text.
- 97.
For a comparison between the Article 106(2) test and the tests applied under the Decision and Framework, see Case NN-54/2009, Financing of public hospitals in Brussels region [2010] OJ C 74/1, para 167.
- 98.
See its subsequent decision in Case N-582/2008, Health Insurance Intergenerational Solidarity Relief [2009] OJ C 186/2, paras 41–42 and 60.
- 99.
See Case T-442/03 SIC v. Commission [2008] ECR II-1161 Rec 219-256; Case T-309/04 TV 2/Danmark v. Commission [2008] ECR II-2935 Rec. 192-223.
- 100.
Directive 2009/72 supra note 49 Article 9; Directive 2009/73 supra note 49 Article 9.
- 101.
Directive 2002/19 supra note 15 Articles 13a and 13b as introduced by Directive 2009/140 amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and associated facilities, and 2002/20/EC on the authorization of electronic communications networks and services [2009] OJ L 337/37. Contrary to energy regulation, separation is not compulsory in the electronic communications sector. It is one of the remedies at the disposal of NRAs and its use must be justified to the Commission.
- 102.
Member States remain subject to general principles of EU law—including loyalty (now Article 4(3) TEU), effectiveness and equivalence (the two exceptions to the principle of national procedural autonomy)—when designing and operating the national-level institutions which are meant to give effect to EU law. Within the boundaries set by these principles, Member States retain a significant amount of discretion.
- 103.
EU energy regulation did not deal with national regulatory authorities until the 2nd generation of Directives in 2003.
- 104.
Directive 90/388 supra note 3 Article 7.
- 105.
Directive 90/387 supra note 9 Article 5a.
- 106.
Ibid.
- 107.
Directive 2002/21 supra note 15 Articles 3–6.
- 108.
Ibid. Article 8. In fact, this detailed statement of objectives has been criticized for its open-endedness: the objectives listed therein will often point in contradictory directions, i.e., the promotion of investment in infrastructure and the lowering of consumer prices.
- 109.
Ibid. Article 7. The Article 7 procedure has given rise to a large decision body, with the Commission having so far reviewed more than 1000 draft NRA decisions (as of 1 January 2010) and issued 7 veto decisions over the years.
- 110.
Directive 2003/54 supra note 44 Article 23; Directive 2003/55 supra note 44 Article 25.
- 111.
See Decision 2002/627 establishing the European Regulators Group for Electronic Communications Networks and Services [2002] OJ L 200/38 and Decision 2003/796 establishing the European Regulators Group for Electricity and Gas (ERGEG) [2003] OJ L 296/34.
- 112.
Including the massive effort of the ERG to draw up a Common Position on Remedies, ERG (06) 33 (May 2006), available at http://berec.europa.eu/.
- 113.
- 114.
Tridimas 2011.
- 115.
‘Rights of use’ must still be sought by each market player, however, in order to have access to scarce resources such as frequencies, numbers or rights-of-way: Directive 2002/20 supra note 15 Article 5.
- 116.
Under Regulation 1228/2003 supra note 44, the relevant national authorities involved had jurisdiction over cross-border infrastructure and had a duty of cooperation but remained fully entitled to take autonomous decisions.
- 117.
Larouche and de Visser 2006.
- 118.
See Lavrijssen and Hancher, Chap. 8 in this book.
- 119.
Directive 2002/21 supra note 15 Article 15.
- 120.
Ibid.
- 121.
Ibid., Article 7. See also Larouche 2005.
- 122.
Larouche 2000.
- 123.
Case COMP/37.451 Deutsche Telekom AG [2003] OJ L 263/9 (upheld in Case T-271/03 Deutsche Telekom [2008] ECR II-477), Case COMP/38.233 Wanadoo Interactive, available on ec.europa.eu/competition (upheld in Case C-202/07 P France Télécom [2009] ECR I-2369), Case COMP/38.784 Telefónica, available on ec.europa.eu/competition.
- 124.
- 125.
EP and Council Regulation 717/2007 on roaming on public mobile telephone networks within the Community [2007] OJ L 171/32.
- 126.
Inquiry pursuant to Article 17 of Regulation 1/2003 into the European gas and electricity sectors (Final Report) COM(2006) 851 (10 January 2007).
- 127.
Council Regulation 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty [2003] OJ L 1/1.
- 128.
Case T-87/05 EDP v. Commission [2005] ECR II-3745.
- 129.
Case COMP/M.1853 EDF/EnBW [2002] OJ L 59/1; Case COMP/M.4180 Gaz de France/Suez [2007] OJ L 88/47.
- 130.
In Case C 441/07 Alrosa [2010] ECR I-5949, however, the ECJ subjects commitments received under Article 9 of Regulation 1/2003 to a much looser proportionality test than conditions or obligations unilaterally imposed by the Commission pursuant to Article 7 of Regulation 1/2003.
- 131.
Cases COMP/39.388 and COMP/39.389 German Electricity Wholesale and Balancing Markets [2009] OJ 36/8.
- 132.
Case COMP/39.402 RWE Gas Foreclosure (Decision of 18 March 2009), available on http://ec.europa.eu/competition.
- 133.
Case COMP/39.351 Swedish Interconnectors [2010] OJ C 142/28.
- 134.
Directive 90/387 supra note 9 Article 5a; Directive 2002/21 supra note 15 Article 3(2).
- 135.
Thatcher 2007.
- 136.
For instance, short-term gains in consumer welfare from lower prices and increased competition routinely have to be weighed against longer-term gains from investments in new technologies and increased dynamic efficiency. Similarly, the interests of one category of customers often have to be balanced with those of another category.
- 137.
The same debate took place in common law systems when regulatory authorities were put in place, but that debate dates back from the mid-20th century.
- 138.
Hancher et al. 2003.
- 139.
This is not to say that NRAs are not vulnerable to rent-seeking behavior as well, as public choice theory argues with regulatory capture, etc.
- 140.
See ECJ, 3 December 2009, Case C-424/07, Commission v. Germany [2009] ECR I-11341, in particular Rec. 91 and the Opinion of AG Maduro at Rec. 63. In ECJ, 29 October 2009, Case C-274/08, Commission v. Sweden [2009] ECR I-10647 the Court also defended the position of the NRA as against the Legislature, this time in the energy sector.
- 141.
Directive 2009/140 supra note 101 Rec 13 and the new Article 3a added to Directive 2002/21 supra note 15; Directive 2009/72 supra note 49 Rec 33-34 and Article 35.
- 142.
Lavrijssen and Hancher, Chap. 8 in this book.
- 143.
As is the case with some US authorities, such as the FCC.
- 144.
Directive 2002/21 supra note 15 Article 8.
- 145.
Ibid.
- 146.
Throughout the Directives making up the 2002 framework supra note 15.
- 147.
Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services [2002] OJ C 165/6.
- 148.
As was the case in Commission v. Germany supra note 140 where one principal (the German Parliament) disagreed with another one (the Commission) on the proper treatment of emerging markets.
- 149.
In terms of internal governance, ACER broadly follows the principles of the Draft Interinstitutional Agreement on the Operating Framework for the European Regulatory Agencies, COM(2005)59 final (25 February 2005). It comprises an Administrative Board, a Board of Regulators regrouping the NRAs and a Director. As for BEREC, even if, for institutional reasons, it is expressly not set up as a ‘Community agency’ within the meaning of EU law (Regulation 1211/2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office [2009] OJ L 337/1 Rec 6), for the purposes of discussion here it will be treated as such. Its institutional structure is not far from the model set out in the Draft Interinstitutional Agreement either: it comprises a Board of Regulators on which NRAs sit, assisted by a Management Committee and a Administrative Manager. In comparison to ACER, BEREC leaves more power in the hands of the NRAs acting together as Board of Regulators.
- 150.
Lavrijssen and Hancher, Chap. 8 in this book.
- 151.
Case 9/56, Meroni [1958] ECR 11.
- 152.
These now include the network codes, the certification of TSOs, rules on the provision of information, rules for the trading of electricity and lastly, rules on investment incentives for the construction of interconnector capacity.
- 153.
Supra note 151.
- 154.
One need only parse the various acronyms which gained currency during the legislative procedure to see that the lawmaking institutions were at odds: the Commission proposed a European Electronic Communications Market Authority (EECMA), whereas the Council in its common position wanted a Group of European Regulators in Telecoms (GERT), and not a Body of European Regulators in Telecoms (BERT), as found in the first reading of the EP.
- 155.
Regulation 1211/2009 supra note 149 Article 6.
- 156.
Ibid., Article 4(9).
- 157.
Tridimas 2009.
- 158.
Pelkmans et al. 2000, 519.
- 159.
The pressure for ‘consistency’ essentially concerns remedies, since market definition and SMP designation are already subject to Commission supervision (and ultimately veto) under Directive 2002/21 supra note 15 Article 7. Whether BEREC will succeed in bringing more consistency in the remedies imposed by NRAs will also depend on how the intricate review procedure of Directive 2002/21, Article 7a (as added by Directive 2009/140) works out in practice. On the face of Article 7a, NRAs may ultimately persist with their original proposal concerning remedies, but they will face considerable pressure to follow the views of the Commission and BEREC.
- 160.
Directive 80/723 on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings [1980] OJ L 195/35, as amended.
- 161.
Monti 2010, 73–75.
- 162.
Supra note 95.
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Hancher, L., Larouche, P. (2013). From a Formalistic to an Integrative Model: The Case of EU Economic Regulation. In: Larouche, P., Cserne, P. (eds) National Legal Systems and Globalization. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-885-9_6
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