Judgments nº T-370/19 of Tribunal General de la Unión Europea, September 23, 2020

• Resolution Date: September 23, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-370/19

(External relations - Technical cooperation - Electronic communications - Regulation (EU) 2018/1971 - Body of European Regulators for Electronic Communications - Article 35(2) of Regulation 2018/1971 - Participation of regulatory authorities of third countries in that body - Participation of the national regulatory authority of Kosovo - Concept of third country - Error of law)

In Case T-370/19,

Kingdom of Spain, represented by S. Centeno Huerta, acting as Agent,

applicant,

v

European Commission, represented by F. Castillo de la Torre, M. Kellerbauer and T. Ramopoulos, acting as Agents,

defendant,

ACTION pursuant to Article 263 TFEU seeking annulment of the decision of the Commission of 18 March 2019 on the participation of the National Regulatory Authority of Kosovo in the Body of European Regulators for Electronic Communications (OJ 2019 C 115, p. 26),

THE GENERAL COURT (Ninth Chamber),

composed of M.J. Costeira (Rapporteur), President, M. Kancheva and T. Perišin, Judges,

Registrar: E. Coulon,

gives the following

Judgment

Background to the dispute

1 By 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 2009 L 337, p. 1), the EU legislature decided to create BEREC and entrust it with contributing to the development and better functioning of the internal market for electronic communications networks and services, by aiming to ensure a consistent application of the EU regulatory framework for electronic communications. Under that regulation, BEREC was required to perform its tasks independently, in cooperation with national regulatory authorities (‘NRAs’) and the European Commission. Likewise, it was required to promote cooperation between NRAs themselves and between NRAs and the Commission.

2 In terms of Article 4 of Regulation No 1211/2009, BEREC was composed of a Board of Regulators. According to Article 6 of that regulation, BEREC was assisted by the Office, under the guidance of the Board of Regulators. The Office comprised, in particular, a Management Committee. The Board of Regulators and the Management Committee were both composed of one member per Member State, who was the head or nominated high-level representative of the NRA established in each Member State. Pursuant to Article 4(3) of that regulation, NRAs from European Economic Area (EEA) States and from States that were candidates for accession had observer status and participated in the Board of Regulators of BEREC and the Management Committee of the Office. Third countries other than EEA countries and candidate countries were excluded from participating in BEREC and its organs.

3 Furthermore, between 2001 and 2015, the European Union signed a number of stabilisation and association agreements (‘SAAs’) with the Western Balkan countries, which contain specific provisions on cooperation in the field of electronic communications. One such example is the Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part (OJ 2016 L 71, p. 3; ‘the Kosovo SAA’), Article 111 of which lays down such provisions under the heading ‘Electronic communications networks and services’ and is worded as follows:

‘Cooperation shall primarily focus on priority areas related to the EU acquis in this field.

The Parties shall, in particular, strengthen cooperation in the area of electronic communications networks and electronic communications services, with the ultimate objective of the adoption by Kosovo of the EU acquis in the sector five years after the entry into force of this Agreement, paying particular attention to ensuring and strengthening the independence of the relevant regulatory authorities.’

4 The overall aim of the Kosovo SAA is, inter alia, to take concrete steps to realise Kosovo’s European perspective and rapprochement with the European Union. However, Article 2 of the Kosovo SAA states that ‘none of the terms, wording or definitions used in this Agreement, including the Annexes and Protocols thereto, constitute recognition of Kosovo by the EU as an independent State nor does it constitute recognition by individual Member States of Kosovo in that capacity where they have not taken such a step’.

5 On 6 February 2018, the Commission adopted a Communication to the European Parliament, the Council of the European Union, the European Economic and Social Committee and the Committee of the Regions, entitled ‘A credible enlargement perspective for and enhanced EU engagement with the Western Balkans’ (COM(2018) 65 final). In its communication, the Commission stated that it intends to launch a digital agenda for the Western Balkans, including steps to facilitate the lowering of roaming costs, to support the deployment of broadband, to develop digital society and, more generally, to support the adoption, implementation and enforcement of the acquis in the area of the digital single market.

6 On 22 June 2018, the Commission published a working document entitled ‘Measures in support of a Digital Agenda for the Western Balkans’ (SWD(2018) 360 final). One of the five main areas covered by that digital agenda concerns support for the adoption, implementation and enforcement of the acquis in the digital single market. One of the steps in that main area involves incorporating the Western Balkans into existing regulatory bodies or expert groups, such as BEREC, which is expressly mentioned. Section 8.3.1 of that document, dealing with BEREC, states that ‘a closer relationship between EU and Western Balkans NRAs will help bring regulatory practice in the region closer to the Union … While four out of six Western Balkan economies are currently observers of BEREC, the BEREC Board agreed to work more closely with all six NRAs of the region. This will still be possible under the revised … Regulation [No 1211/2009]’.

7 On 11 December 2018, the Parliament and the Council adopted Regulation (EU) 2018/1971 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 No 1211/2009 (OJ 2018 L 321, p. 1). That regulation came into force on 20 December 2018.

8 In particular, Article 35 of Regulation 2018/1971, headed ‘Cooperation with Union bodies, third countries and international organisations’, is worded as follows:

‘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.

   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.’

   9 On 18 March 2019, the Commission adopted six decisions concerning the participation in BEREC of the NRAs of the six countries of the Western Balkans. Those decisions were taken on the basis of the new legal framework and, in particular, Article 35(2) of Regulation 2018/1971, governing the participation of NRAs of third countries in the organs of BEREC and the BEREC Office, with the aim of ensuring the participation of the NRAs of those six countries in the work of BEREC and the BEREC Office, in accordance with the digital agenda for the Western Balkans mentioned in paragraphs 5 and 6 above.

   10 The six decisions in question include the decision of the Commission of 18 March 2019 on the participation of the National Regulatory Authority of Kosovo in the Body of European Regulators for Electronic Communications (OJ 2019 C 115, p. 26; ‘the contested decision’). In that decision, the Commission established that the NRA of Kosovo with primary responsibility for overseeing the day-to-day operation of the markets for electronic communications networks and services could...