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How Regulatory Networks Shaped Institutional Reform under the EU Telecoms Framework

  • Nina Boeger and Joseph Corkin

Abstract

This chapter considers the evolving institutional responses to the challenge of regulating telecoms in the EU, taking in the Commission’s push for creating an EU agency versus the resilience of the transnationally networked model, which is usually attributed to the Member States’ sovereignty reflex. Were recent negotiations over the reform of the Regulatory Framework for telecoms, concluded in 2009, simply a turf-war in which the Commission sought to extend the EU’s role against resistance from the Member States, or did the national telecoms regulators and their existing transnational network influence the eventual compromise to retain the soft law, networked model, albeit with some hardening? Characterised as a classic integration struggle, the Member States’ intergovernmental instincts were pitched against the Commission’s supranational instincts and its preference for instruments of control premised on the centralised exercise of hierarchical power. But this chapter paints a more fine-grained picture of the negotiation’s dynamics and especially the influence of the national regulatory authorities (NRAs) and their existing transnational network; a community of expertise that stood to have its role either strengthened or diminished in the revised institutional architecture. In doing so, the chapter moves beyond orthodox (intergovernmental and neofunctionalist) accounts of these dynamics to take an institutionalist approach that is better suited to analysing the EU as a mature system of governance.

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2 Dir 2002/21/EC on a common regulatory framework for electronic communications networks and services as amended by Dir 2009/140/EC.

3 Commission (EC), ‘Progress Report on the thinking and work done in the field and initial proposals for an Action Programme’ (Communication) COM (84) 277 final.

4 In 1998, this was merged with the European Interconnect Forum to form the European Telecommunications Platform.

5 Dir 97/13/EC of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services; Goodman, JW., Telecommunications Policy-Making in the European Union (Cheltenham, Edward Elgar, 2006).

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9 This view is set out in the Commission Communication, ‘The Results of the Public Consultation on the 1999 Communications Review’ COM (2000) 239 final.

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11 Commission (EC) ‘Proposal for a Directive on a Common Regulatory Framework’ (Communication) COM (2000) 393 final.

12 Commission position on the Council common position, 18 September 2001.

13 Commission Decision 2002/627/EC establishing the European Regulators Group for Electronic Communications Networks and Services, as amended by Commission Decision 2004/641/EC.

14 Including Dir 2002/21/EC on a common regulatory framework for electronic communications networks and services.

15 D Geradin and P Pettit, The Development of Agencies at EU and National Levels: Conceptual Analysis and Proposals for Reform, Jean Monnet Working Paper 01/04 (NYU School of Law, 2004), at p 16.

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19 V Reding letter to the ERG, 6 December 2007.

20 V Reding, ‘The Review 2006 of EU Telecom Rules: Strengthening Competition and Completing the Internal Market’, a speech at the annual meeting of BITKOM, Brussels, Bibliothèque Solvay, 27 June 2006. A closer parallel is in fact the European Medicines Agency, which is not a creature of the treaties but of a humble Regulation, and it works together with its national counterparts to foster scientific excellence in the evaluation and supervision of medicines. See also the Financial Times (16 November 2006).

21 V Reding, Speech to the European Parliament, Plenary session, 2 September 2008.

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23 Press Release IP/07/237 of 26 February 2007.

24 Malcolm Harbour MEP, EurActiv.com, 14 November 2007.

25 Speech to the ERG, 8 February 2006.

26 Commission Communication COM (2007) 697 final and COM (2007) 699 final; see also Commission (EC) ‘On the Review of the EU Regulatory Framework’ (Communication) COM (2006) 334 final, together with ‘Proposed Changes’ (SEC (2006) 816) and ‘Impact Assessment’ (SEC (2006) 817); the consultations are available at www.ec.europa.eu/information_society/policy/ecomm/doc/library.

27 Regulation 1211/2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office, 25 November 2007 (hereafter, BEREC Regulation).

28 Thatcher, M, ‘The Creation of European Regulatory Agencies and its Limits: A Comparative Analysis of European Delegation’ (2011) 18(6) Journal of European Public Policy 790, 803.

29 Levi-Faur, D, ‘Regulatory Networks & Regulatory Agencification: Towards a Single European Regulatory Space?’ (2010) Jerusalem Papers in Regulation and Governance, Working Paper no 30, 5 and 17–19 .

30 Art 2(1) and 2(2), BEREC Regulation.

31 Art 2(3), BEREC Regulation.

32 Art 2(4), BEREC Regulation.

33 Art 2(5), BEREC Regulation.

34 Arts 7 and 7a, Framework Directive.

35 Recital 11, BEREC Regulation.

36 Art 5(1), BEREC Regulation.

37 Art 9(1), Rules of Procedures of the Board of Regulators as revised in May 2011, BoR (11) 23.

38 Art 7(3) and 7a(1), Framework Directive.

39 Art 7a(3), (5), Framework Directive.

40 Art 7a(7), Framework Directive.

41 Art 7(5), Framework Directive.

42 Arrow, K, ‘The Economics of Agency’ in Pratt, J and Zeckhauser, R (eds), Principals and Agents: The Structure of Business (Boston, Mass, Harvard Business School Press, 1985); Sened, I, ‘Contemporary Theory of Institutions in Perspective’ (1991) 3(4) Journal of Theoretical Politics 379 ; Pollack, M, The Engines of European Integration: Delegation: Agency and Agenda setting in the EU (Oxford, Oxford University Press, 2003).

43 Levi-Faur, D, ‘The Politics of Liberalisation: Privatisation and Regulation-for-Competition in Europe’s and Latin America’s Telecoms and Electricity Industries’ (2003) 42(5) European Journal of Political Research 705 .

44 C Fonteijn, Chair of the Dutch NRA OPTA and of BEREC in 2011, the Communications and Competition law Conference of the International Bar Association, 16 May 2011 (Vienna).

45 Madeira commitments, 6 October 2006, ERG (06) 51, available at www.erg.eu.int/documents/erg/index_en.htm.

46 The trail of correspondence between the ERG and Commission from 2006 through to December 2007 is available at www.ec.europa.eu/information_society/policy/ecomm/tomorrow/erg_discussion/index_en.htm.

47 ERG letter to V Reding, 27 February 2007.

48 ERG letter to V Reding, 6 November 2007.

49 A Blowers, International Director of Ofcom, Westminster eForum keynote seminar on The European Framework Review, as reported in www.zdnet.co.uk, 20 October 2006.

50 For a contemporaneous understanding of the government’s position on competitiveness and open markets in the EU, see Cabinet Office and the Foreign and Commonwealth Office, Global Europe: Meeting the Economic and Security Challenges (London, HMSO, 2007).

51 E Richards (Ofcom CEO), Financial Times (14 January 2007 and 31 October 2007).

52 Reported in the Financial Times (30 October 2007).

53 The Italian regulator AGCOM for example appeared in principle not to be opposed to the idea of creating an EU agency whereas others, such as the Portuguese authority ANACOM, argued strongly in favour of the status quo with only minor institutional changes.

54 ERG letter to V Reding, 27 February 2007.

55 Saz-Carranza, and Longo, , ‘The Evolution of the Governance of Regulatory Networks’ (n 10) 29 .

56 Reported in www.europeanvoice.com, 6 March 2008.

57 ITRE Committee Report on the Proposal for a Regulation establishing EECMA, A6–0316/2008, 17 July 2008, p 89.

58 Reported in www.theparliament.com, 28 April 2008.

59 2835th Council meeting on Transport, Telecommunications and Energy, 29–30 November and 3 December 2007, Press Release 15891/07 (Presse 274); 2877th Council meeting on Transport, Telecommunications and Energy, 12–13 June 2008, Press Release 10410/08 (Presse 165).

60 Coen, and Thatcher, , ‘Network Governance and Multi-level Delegation’ (n 16) 55 .

61 Commission (EC), ‘Proposal for a Regulation of the European Parliament and of the Council establishing an Agency for the Cooperation of Energy Regulators’ (Communication) COM (2007) 530 final.

62 ITRE Committee, ‘Working Document on a Proposal for a Regulation establishing an Agency for the Cooperation of Energy Regulators’, Rapporteur R Brunetta, PE400. 297v01 - 00.

63 Commission (EC), ‘European Agencies: The Way Forward’, MEMO/08/159, 11 March 2008.

64 Note by Lord Carter of Barnes, Parliamentary Under-Secretary, Department for Culture and Media and Sport, 4 December 2008, Hansard Written Answers and Statements, reported at www.theyworkforyou.com; Minister’s letter to the UK House of Commons European Scrutiny Committee, 15 December 2008, in: House of Common European Scrutiny Committee, 16th Report (2008–9), 22 April 2009, ch 1.

65 ITRE Committee, ‘Report on the Proposal for a Regulation establishing EECMA’, A6-0316/2008, 17 July 2008; European Parliament, ‘Legislative Resolution on the Proposal for a Regulation establishing EECMA’, 24 September 2008, P6_TA-PROV(2008) 0450.

66 See, eg, Explanatory Statement, ITRE Committee Report on the Proposal for a Regulation establishing EECMA, A6-0316/2008, 17 July 2008, pp 88–91.

67 ITRE Committee, ‘Report on the Framework Directive’, A6-0321/2008, 22 July 2008, p 109.

68 ITRE Committee, ‘Report on the Proposal for a Regulation establishing EECMA’, A6-0316/2008, 17 July 2008, p 90; European Parliament, ‘Legislative Resolution on the Proposal for a Regulation establishing EECMA’, 24 September 2008, P6_TA-PROV(2008) 0450, Amendment 37.

69 2907th Council meeting on Transport, Telecommunications and Energy, 27 November 2008, Press Release 16326/1/08 (Presse 345), pp 10–11.

70 COREPER meeting on 20 February 2009, recorded in Council Presidency Meeting Document DS 167/09 of 26 February 2009.

71 Council Common Position on the Framework Directive, 16496/08, 9 February 2009; 2923rd Council meeting on Education, Youth and Culture, 16 February 2009, Press Release 6071/09 (Presse 33).

72 V Reding speech to the European Parliament, Plenary session, 2 September 2008.

73 E Richards, Speech to the Communications and Competition Law Conference, Brussels, 20 October 2008.

74 European Parliament, ‘Position on the BEREC Regulation’, adopted at Second Reading, 6 May 2009, EP-PE_TC2-COD(2007)0249.

75 European Parliament, ‘Legislative Resolution on the Council Common Position on the Framework Directive’, adopted at Second Reading, 6 May 2009, P6_TA(2009)0361.

76 Meeting Document DS 167/09 of 26 February2009.

77 European Parliament, ‘Position on the BEREC Regulation’, adopted at Second Reading, 6 May 2009, EP-PE_TC2COD(2007)0249; European Parliament, ‘Legislative Resolution on the Council Common Position on the Framework Directive’, adopted at Second Reading, 6 May 2009, P6_TA(2009)0361.

78 Progress Report from COREPER to Council on the Proposal for a Regulation establishing EECMA, 6 June 2008, 10337/08, p 2; 2877th Council meeting on Transport, Telecommunications and Energy, 12 13 June 2008, Press Release 10410/08 (Presse 165), p 9.

79 Exemplary for the supranational and intergovernmental theoretical frame respectively: Martens, M, ‘Administrative Integration through the Back Door? The Role and Influence of the European Commission in Transgovernmental Networks within the Environmental Policy Field’ (2008) 30(5) European Integration 635 ; McNamara, K, ‘Rational Fictions: Central Bank Independence and the Social Logic of Delegation’ (2002) 25(1) Western European Politics 47 .

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