Opinion of Advocate General Kokott delivered on 16 June 2022.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2022:473
• Date: 16 June 2022
• Celex Number: 62020CC0632
• Court: Court of Justice (European Union)

Provisional text

OPINION OF ADVOCATE GENERAL

KOKOTT

delivered on 16 June 2022 (1)

Case C‑632/20 P

Kingdom of Spain

v

European Commission

(Appeal – External relations – Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part – Electronic communications – Regulation (EU) 2018/1971 – Body of European Regulators for Electronic Communications (BEREC) – Article 35(2) – Participation of the national regulatory authority (NRA) of Kosovo in that body – Concepts of ‘third country’ and ‘third State’ – Institutional competence of the Commission)

I. Introduction

1. The BEREC Regulation (2) is the legal basis for the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (‘the BEREC Office’).

2. Article 35 of the regulation governs, in particular, cooperation between those bodies and national regulatory authorities (NRAs) of third countries. Pursuant to that provision, the Commission decided, by the contested decision of 18 March 2019, (3) that the NRA of Kosovo was permitted to participate in the Board of Regulators and working groups of BEREC and the Management Board of the BEREC Office.

3. Spain challenges that decision and, specifically, takes the view that the participation of the NRA of Kosovo is precluded because some Member States, including Spain, have not recognised Kosovo as a sovereign State and, in addition, the European Union has not adopted a position on the matter. Furthermore, Spain questions the Commission’s competence to make a unilateral decision on such participation.

4. While the parties disagree strongly as to the rules of primary law governing these questions, on closer analysis the present dispute can be settled on the basis of the BEREC Regulation and the Stabilisation and Association Agreement with Kosovo. (4)

II. Legal framework

A. Stabilisation and Association Agreement with Kosovo

5. Between 2001 and 2016 the European Union concluded Stabilisation and Association Agreements (SAAs) with North Macedonia, (5) Albania, (6) Montenegro, (7) Serbia, (8) Bosnia and Herzegovina (9) and Kosovo. The Kosovo SAA is of particular relevance in the present case.

6. The use of the designation ‘Kosovo’ in the title of the agreement and at the beginning of the preamble is accompanied by the following footnote, which is also reproduced substantively in the recital 17in the preamble:

‘This designation is without prejudice to positions on status, and is in line with UNSCR 1244/1999 and the ICJ Opinion on the Kosovo declaration of independence.’

7. Article 2 of the Kosovo SAA also concerns the question of recognition of Kosovo as an independent State:

‘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.’

8. Article 111 of the Kosovo SAA concerns electronic communications networks and services:

‘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.’

9. Similar provisions are laid down in Article 95 of the North Macedonia SAA, Article 104 of the Albania SAA, Article 106 of the Montenegro SAA, Article 106 of the Serbia SAA and Article 104 of the Bosnia and Herzegovina SAA.

B. BEREC Regulation

10. The BEREC Regulation repealed Regulation (EC) No 1211/2009, (10) by which BEREC and the BEREC Office had originally been established.

11. According to recital 5 of the BEREC Regulation, 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 EU regulatory framework. It further states that BEREC was established to provide expertise and to act independently and transparently.

12. Recital 13 of the BEREC Regulation describes the function of BEREC:

‘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.’

13. Recital 20 of the BEREC Regulation concerns cooperation with bodies of third countries:

‘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.’

14. Recital 34 of the BEREC Regulation likewise addresses cooperation with third countries:

‘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.’

15. Under Article 3(1) of the BEREC Regulation, BEREC is to act within the scope of the Roaming Regulation, (11) the Open Internet Access Regulation (12) and the Directive establishing the European Electronic Communications Code. (13) Within that field, Article 3(2) provides that, in particular, BEREC is to aim to ensure the consistent implementation of the regulatory framework for electronic communications within the scope referred to in Article 3(1).

16. Article 3(3) and (4) of the BEREC Regulation establishes the basic principles for the work of BEREC:

‘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 [NRAs].’

17. Article 4 of the BEREC Regulation provides that BEREC is to assist other institutions in regulation of electronic communications. In particular, it is to produce certain opinions, recommendations, common positions and best practices, of which the NRAs and the Commission must take the utmost account.

18. Under Article 7 of the BEREC Regulation, BEREC’s Board of Regulators is to be composed of one member from each Member State. Each member is to be appointed by the NRA of the Member State concerned. Members of the Board of Regulators and their alternates are to be appointed in light of their knowledge in the field of electronic communications, taking into account relevant managerial, administrative and budgetary skills.

19. Article 8 of the BEREC Regulation provides that the Board of Regulators and its members are to act independently and in the interests of the European Union.

20. The central provision on cooperation with third countries is Article 35 of the BEREC Regulation:

‘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.

…’

C. Contested Commission decision of 18 March 2019

21. On 18 March 2019, the Commission adopted the contested decision together with five similar decisions concerning the participation in BEREC of the NRAs of Montenegro, (14) North Macedonia, (15) Bosnia and Herzegovina, (16) Serbia (17) and Albania. (18)

22. The contested decision makes reference in the first two recitals to Article 17(1) TEU and Article 35(2) of the BEREC Regulation respectively.

23. The footnotes to the title of the contested decision and to point 1.1 of its annex reproduce, with regard to the designation ‘Kosovo’, the...