               26.3.2021

               EN

               Official Journal of the European Union

               C 108/141

      P8_TA(2019)0330
      Decision establishing a European Peace Facility
      European Parliament recommendation of 28 March 2019 to the Council and the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy concerning the Proposal of the High Representative of the Union for Foreign Affairs and Security Policy, with the support of the Commission, to the Council for a Council Decision establishing a European Peace Facility (2018/2237(INI))
      (2021/C 108/14)

         The European Parliament,

                  —

                  having regard to the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU),

                  —

                  having regard to the UN Sustainable Development Goals (SDGs), in particular SDGs 1, 16 and 17, aimed at the promotion of peaceful and inclusive societies for sustainable development (1),

                  —

                  having regard to the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000,

                  —

                  having regard to Council Regulation (EU) 2015/322 of 2 March 2015 on the implementation of the 11th European Development Fund (2),

                  —

                  having regard to Council Decision (CFSP) 2015/528 of 27 March 2015 establishing a mechanism to administer the financing of the common costs of European Union operations having military or defence implications (Athena) and repealing Decision 2011/871/CFSP (3),

                  —

                  having regard to Regulation (EU) No 230/2014 of the European Parliament and of the Council of 11 March 2014 establishing an instrument contributing to stability and peace (4),

                  —

                  having regard to Regulation (EU) 2017/2306 of the European Parliament and of the Council of 12 December 2017 amending Regulation (EU) No 230/2014 establishing an instrument contributing to stability and peace (5),

                  —

                  having regard to the Interinstitutional Declaration, annexed to Regulation (EU) 2017/2306, concerning sources of funding of assistance measures under Article 3a of Regulation (EU) No 230/2014 of the European Parliament and of the Council of 11 March 2014 establishing an instrument contributing to stability and peace (6),

                  —

                  having regard to Council Regulation (EU) 2015/323 of 2 March 2015 on the financial regulation applicable to the 11th European Development Fund (7),

                  —

                  having regard to Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment (8), and Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items (9),

                  —

                  having regard to the Internal Agreement between the Representatives of the Governments of the Member States of the European Union, meeting within the Council, on the financing of European Union aid under the multiannual financial framework for the period 2014 to 2020, in accordance with the ACP-EU Partnership Agreement, and on the allocation of financial assistance for the Overseas Countries and Territories to which Part Four of the Treaty on the Functioning of the European Union applies (10),

                  —

                  having regard to the Proposal of 13 June 2018 of the High Representative of the Union for Foreign Affairs and Security Policy, with the support of the Commission, to the Council for a Council Decision establishing a European Peace Facility (HR(2018) 94),

                  —

                  having regard to the European Council conclusions of 20 December 2013, 26 June 2015, 15 December 2016, 9 March 2017, 22 June 2017, 20 November 2017, 14 December 2017 and 28 June 2018,

                  —

                  having regard to the document entitled ‘Shared Vision, Common Action: A Stronger Europe — A Global Strategy for the European Union’s Foreign and Security Policy’, presented by the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy (VP/HR) on 28 June 2016,

                  —

                  having regard to the Council conclusions of 13 November 2017, 25 June 2018 and 19 November 2018 on security and defence in the context of the EU Global Strategy,

                  —

                  having regard to the Commission communication of 7 June 2017 entitled ‘Reflection Paper on the Future of European Defence’ (COM(2017)0315),

                  —

                  having regard to the Joint Communication of the Commission and the EEAS of 5 July 2016 on ‘Elements for an EU-wide strategic framework to support security sector reform’,

                  —

                  having regard to the European Court of Auditors’ special report No 20 of 18 September 2018 on ‘The African Peace and Security Architecture: need to refocus EU support’,

                  —

                  having regard to its resolution of 21 May 2015 on financing the Common Security and Defence Policy (11),

                  —

                  having regard to its resolution of 22 November 2016 on the European Defence Union (12),

                  —

                  having regard to its resolutions of 13 December 2017 (13) and 12 December 2018 (14) on the Annual Report on the implementation of the Common Security and Defence Policy (CSDP),

                  —

                  having regard to Rule 113 of its Rules of Procedure,

                  —

                  having regard to the report of the Committee on Foreign Affairs (A8-0157/2019),

                  A.

                  whereas the EU’s ambition is to be a global actor for peace, striving for the maintenance of international peace and security and respect for international humanitarian and human rights law;

                  B.

                  whereas the EU has a growing responsibility to safeguard its own security within a strategic environment that has significantly deteriorated over the last few years;

                  C.

                  whereas the challenging security environment surrounding the EU requires it to have strategic autonomy, which was acknowledged in June 2016 by the 28 Heads of State and Government in the EU Global Strategy, and which necessitates the provision of instruments which enhance the EU’s ability to preserve peace, prevent conflicts, promote peaceful, just and inclusive societies and strengthen international security; whereas it has been acknowledged that secure and peaceful societies are a prerequisite for lasting development;

                  D.

                  whereas the purpose of the European Peace Facility (hereinafter ‘EPF’ or ‘the Facility’) is not to militarise the European Union’s external action but to yield synergies and efficiency gains by providing a package approach to operational funding of external action that already exists today, and where funding from the EU budget is not possible;

                  E.

                  whereas the Treaty requires the EU and its institutions to implement a common foreign and security policy (CFSP), including the progressive framing of a common defence policy, which might lead to a common defence in accordance with the provisions of Article 42, thereby reinforcing European identity and its independence in order to promote peace, security and progress in Europe and in the world; whereas the proposed Facility is to be welcomed as a progressive step in this direction, and the VP/HR is to be encouraged to pursue its further development and implementation;

                  F.

                  whereas the EU is the world’s biggest provider of development and humanitarian aid, strengthening its security and development nexus towards achieving sustainable peace;

                  G.

                  whereas further use of Union funding and instruments should be encouraged for the purposes of improving cooperation, developing capabilities and deploying missions in the future, as well as to preserve peace, to prevent, manage and resolve conflicts, and to address threats to international security; underlines that the EPF should, in particular, finance the Union’s military missions, strengthen the military and defence capacities of third states, regional and international organisations, and contribute to the financing of peace support operations led by a regional or international organisation or by third states;

                  H.

                  whereas the EU has found it challenging in the past to finance operations with defence implications; whereas Parliament has repeatedly emphasised the need for funding that is more flexible and efficient and expresses solidarity and determination; whereas additional instruments and tools are necessary to ensure that the EU can play its role as a global actor in the field of security; whereas any such instruments need to be subject to proper parliamentary control and EU legislation;

                  I.

                  whereas women’s participation in peace processes remains one of the most unfulfilled aspects of the women, peace and security agenda, despite women being the primary victims of security and humanitarian crises and in spite of the fact that when women have an explicit role in peace processes, there is a 35 % increase in the probability of an agreement lasting at least 15 years;

                  J.

                  whereas internal and external security are increasingly intertwined; whereas the EU has taken significant steps to increase cooperation between its Member States in the area of defence; whereas the EU has always prided itself on its soft power and will keep doing so; whereas an evolving reality that gives rise to concerns, however, requires the EU not to remain an exclusively ‘civilian power’, but to develop and strengthen its military capabilities, which should be used in a consistent and coherent manner with all other EU external action; whereas development in third countries is not possible without security and peace; whereas the military plays a key role in this, especially in countries where civilian authorities are unable to fulfil their tasks in the light of the security situation; whereas the Facility has the clear potential to lead to a stronger engagement of the EU towards partner countries and will increase the effectiveness of EU external action, allowing the EU to become a relevant stability and security provider in the future;

                  K.

                  whereas the EU’s external action must not be instrumentalised as ‘migration management’, and all efforts to work with third states must go hand in hand with improving the human rights situation within these countries;

                  L.

                  whereas non-proliferation and disarmament will have a significant effect in reducing the fuelling of conflicts and contributing to more stability, in accordance with the obligations stemming from the Treaty on the Non-Proliferation of Nuclear Weapons and Parliament’s related resolution on nuclear security and non-proliferation (15); whereas a world without weapons of mass destruction is a safer one; whereas the EU has been a leading actor in banning nuclear weapons and should expand its role in this sense;

                  M.

                  whereas the Treaties do not provide for any external military action of the Union outside the framework of the CSDP; whereas a genuine CFSP for all EU Member States increases the EU’s scope for external policy action; whereas the only external military action possible under the CSDP takes the form of missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the UN Charter as referred to in Article 42(1) of the TEU;

                  N.

                  whereas support to partners’ military peace support operations has up to now been provided outside of the EU budget through the African Peace Facility (APF), established under and funded by the European Development Fund (EDF); whereas the APF is currently limited to operations led by the African Union (AU) or by African regional organisations;

                  O.

                  whereas the EPF is expected to give the Union the capacity to contribute directly to the financing of peace support operations led by third states, as well as to the relevant international organisations, on a global basis and not limited to Africa or to the AU;

                  P.

                  whereas the proposed Facility will replace the Athena mechanism and the APF; whereas it will complement the Capacity Building for Security and Development initiative by financing the costs of EU defence activities such as AU peace-keeping missions, common costs of own military CSDP operations, and military capacity building of partners, which are excluded from the EU budget in accordance with Article 41(2) of the TEU;

                  Q.

                  whereas operations carried out under the Facility must comply with the principles and values enshrined in the Charter of Fundamental Rights and respect international humanitarian and human rights law; whereas operations which are not defined as ethically acceptable from the point of view of human safety, health and security, freedom, privacy, integrity and dignity, must be thoroughly assessed and reconsidered;

                  R.

                  whereas the current proportion of the common costs remains very low (estimated at approximately 5-10 % of all costs), and the high share of nation-borne costs and responsibilities in military operations based on the ‘costs lie where they fall’ principle runs counter to the principles of solidarity and burden-sharing, and further deters Member States from taking an active part in CSDP operations;

                  S.

                  whereas the proposed average annual envelope for the EPF is EUR 1 500 000 000, while the combined spending under the Athena mechanism and the APF has fluctuated between EUR 250 000 000 and EUR 500 000 000 annually; whereas the potential purposes of the additional EUR 1 000 000 000 per year are not adequately specified or guaranteed in the proposal;

                  T.

                  whereas as an off-budget mechanism financed through yearly contributions by Member States, based on a GNI distribution key, the EPF is expected to allow the EU to fund a higher proportion of the common costs (35-45 %) of military missions and operations, as is currently the case with the Athena mechanism; whereas the EPF is also expected to ensure that EU funding is available on a permanent basis, ensuring adequate programming for crisis preparedness and making rapid deployment easier, and improving flexibility in case of rapid response; whereas the ambitious inclusion and expansion of the Athena mechanism for the common funding of CSDP missions and operations has been a long-standing demand of Parliament; whereas, however, the proposed Council Decision does not have the same binding character as the internal agreement of the APF, which means that Member States may opt out from funding EPF actions;

                  U.

                  whereas through the increase of the common costs, the proposed Facility will enhance solidarity and burden-sharing between Member States, and encourage Member States, especially those lacking financial or operational resources, to contribute to CSDP operations;

                  V.

                  whereas in its conclusions of 19 November 2018, the Council is reserved in its support for the EPF proposal; whereas it is nonetheless important to work towards the adoption of an ambitious proposal containing all proposed components, including the Athena mechanism;

                  W.

                  whereas all military tasks under the Facility, such as joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peacekeeping tasks, tasks of combat forces in crisis management, including peacemaking and post-conflict stabilisation, the fight against terrorism, including by supporting third countries in combating terrorism in their territories as listed in Article 43(1) of the TEU, with full respect for human rights, fall within the remit of the CSDP; whereas the exception of Article 41(2) of the TEU applies to the operating expenditure arising from those military missions only; whereas all other operating expenditure arising from the CSDP, including expenditure arising from any other action referred to in Article 42 of the TEU, should be charged to the Union budget; whereas the administrative expenditure of the EPF should be charged to the Union budget;

                  X.

                  whereas under Article 41(2) of the TEU all operating expenditure to which the CFSP gives rise shall be charged to the Union budget except for expenditure arising from operations having military or defence implications; whereas Article 2 (a) and (d) of the proposal for a decision state respectively that the EPF should fund both ‘operations having military or defence implications’ and ‘other Union operational actions having military or defence implications’;

                  Y.

                  whereas under Article 21(2) (d) of the TEU, the Union shall define and pursue common policies and actions and shall work for high degree of cooperation in all fields of international relations, in order to foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;

                  Z.

                  whereas according to Article 208(1), second paragraph of the TFEU: ‘Union development cooperation policy shall have as its primary objective the reduction and, in the long term, the eradication of poverty’; whereas, according to the same paragraph, ‘the Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries’; whereas the second sentence forms a Treaty provision, and as such, a constitutional duty for the EU, referred to as ‘Policy Coherence for Development’ (PCD);

                  AA.

                  whereas military and civilian missions outside the Union need to be kept separate from each other in order to ensure that the civilian missions are funded from the Union budget only;

                  AB.

                  whereas the EU should grant the personnel of CSDP missions a status similar to that of seconded national experts by providing them with a uniform status and the best possible protection under the Union’s Staff Regulations; whereas all allowances arising from that status and all travel, subsistence and healthcare expenditure should be charged to the Union budget as administrative expenditure;

                  AC.

                  whereas the European Court of Auditors (ECA) has published a special report on the African Peace and Security Architecture funded via the APF, which is proposed to be included and expanded in the EPF; whereas the ECA finds that this support was poorly prioritised and had limited effect; whereas the recommendations from the ECA must be duly taken into account in view of the ambitious increased funding for the new Facility;

                  AD.

                  whereas no financial impact assessment regarding the administrative expenditure accompanied the proposal; whereas the administrative expenditure for the EPF has substantial implications for the EU budget; whereas no extra staff should be hired by or delegated to the EPF beyond the staff currently working on the instruments being replaced; whereas the synergies arising from bringing together the current distinct instruments in one administrative structure should facilitate managing the larger geographical scope of the EPF; whereas additional staff should only be recruited if and when the revenue for a mission or measure has been effectively collected from all participating Member States; whereas the time-limited character of the revenue calls for the contracts of staff recruited by the Facility or the secondments to the Facility for a particular mission or measure to have corresponding time limits; whereas no staff should be recruited by or seconded to the Facility from a Member State where it has made a formal declaration under Article 31(1) of the TEU for a particular mission or measure;

                  AE.

                  whereas the VP/HR should regularly consult Parliament on all main aspects and basic choices of the CFSP and CSDP and their subsequent evolution; whereas Parliament should be consulted and informed in a timely manner to allow it to present its views and ask questions, including on PCD, to the VP/HR and the Council before decisions are made or decisive action is taken; whereas the VP/HR should consider Parliament’s views, including on PCD, and incorporate them into his or her proposals, should reconsider decisions or parts of decisions that Parliament opposes, or withdraw such proposals, notwithstanding the possibility of a Member State advancing the initiative in such a case, and should propose Council decisions relating to the CSDP where invited by Parliament to do so; whereas Parliament should have a yearly debate with the VP/HR on operations funded by the Facility;

                  1.

                  Recommends the following to the Council:

                              (a)

                              not to decrease a Member State’s contribution to the Facility if the Member State has recourse to Article 31(1) of the TEU, as this would undermine the GNI key underlying the financing mechanism and the overall financing of the Facility;

                              (b)

                              to include in the decision a reference to Parliament’s role as discharge authority, as is currently the case with the EDF and therefore for the APF, in accordance with the relevant provisions of the financial regulations applicable to the EDF, with a view to preserving the consistency of the EU’s external action under the Fund and under its other relevant policies in line with Article 18 of the TEU and Article 21(2)(d) of the TEU read in combination with Article 208 of the TFEU;

                              (c)

                              to work on putting in place a mechanism within the European Parliament providing timely access, within strictly defined parameters, to information, including original documents, regarding the EPF annual budget, amending budgets, transfers, action programmes (including during the preparatory phase), implementation of assistance measures (including ad hoc measures), agreements with implementing actors, and reports on the implementation of revenue and expenditure, as well as the annual accounts, the financial statement, the evaluation report and the annual report by the ECA;

                              (d)

                              to agree to include access to all confidential documents in the negotiations for the updated Interinstitutional Agreement between the European Parliament and the Council concerning access of Parliament to sensitive information of the Council in the field of security and defence policy;

                              (e)

                              to ensure that operations, action programmes, ad hoc assistance measures and other operational actions funded by the Facility will not in any way violate or be used to violate the fundamental principles laid down in Article 21 of the TEU or be used to violate international law, in particular international humanitarian and human rights law;

                              (f)

                              to conclude the revision of the Athena mechanism before the end of this year if possible, and to incorporate it seamlessly into the EPF while preserving the mechanism’s operational efficiency and flexibility;

                              (g)

                              to ensure that the efficiency gains and the improved effectiveness offered by a single instrument are preserved when making the necessary adjustments to the proposal;

                              (h)

                              to incorporate the following amendments:

                                          —

                                          to replace ‘Common Foreign and Security Policy’ by ‘Common Security and Defence Policy’ in recital (4) and Article 1;

                                          —

                                          to add a new recital (10a) as follows: ‘(10a) Military advice and assistance tasks referred to in Article 43(1) of the TEU may take the form of strengthening the military and defence capacities of third states, regional and international organisations to preserve peace, to prevent, manage and resolve conflicts and to address threats to international security while strictly complying with international humanitarian law and international human rights law, and the criteria of Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, and Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items’;

                                          —

                                          to add a new recital (10b) as follows: ‘(10b) Conflict prevention and peace-keeping tasks referred to in Article 43 (1) of the TEU may take the form of contributing to the financing of peace support operations led by a regional or international organisation or by third states.’;

                                          —

                                          to add a new recital (10c) as follows: ‘(10c) Operations supported with EU funding must incorporate UN resolution 1325 on women, peace and security’;

                                          —

                                          to amend point a) of Article 2 as follows: ‘a) contributing to the financing of missions under the Common Security and Defence Policy (CSDP) having military or defence implications’;

                                          —

                                          to amend point b) of Article 2 as follows: ‘b) strengthening the military and defence capacities of third states, regional and international organisations to preserve peace, to prevent, manage and resolve conflicts and to address threats to international security and cybersecurity’;

                                          —

                                          to add a new point 2a to Article 3 as follows: ‘2a. The annual breakdown of the administrative expenditure for this facility that is charged to the Union budget shall be set out in Annex I a (new) for information.’;

                                          —

                                          to amend point c) of Article 5 as follows: ‘c) “operation” means a military operation established under the Common Security and Defence Policy in accordance with Article 42 of the TEU to fulfil the tasks referred to in Article 43(1) of the TEU having military or defence implications, including a task entrusted to a group of Member States in accordance with Article 44 of the TEU’;

                                          —

                                          to add a new subparagraph at the end of Article 6 as follows: ‘All civilian aspects, assets or missions under the CFSP and in particular under the CSDP, or parts thereof, shall be exclusively funded from the Union budget.’;

                                          —

                                          to amend Article 7 as follows: ‘Any Member State, the High Representative or the High Representative with the support of the Commission may submit proposals for Union actions under Title V of the TEU to be financed by the Facility. The High Representative shall inform the European Parliament in a timely manner of any such proposal.’;

                                          —

                                          to amend paragraph 1 of Article 10 as follows: ‘Consistency between the actions of the Union to be financed under the Facility and other Union actions under its other relevant policies shall be ensured in accordance with Articles 21 (3) and 26 (2) TEU. Actions of the Union to be financed under the Facility shall also be consistent with the objectives of those other Union policies towards third countries and international organisations;)’;

                                          —

                                          to add a new paragraph 3a to Article 10 as follows: ‘3a. Twice a year the High Representative shall report to the European Parliament on the consistency referred to in paragraph 1.’;

                                          —

                                          to add a new paragraph 2a to Article 11: ‘2a. The facility shall have a liaison officer to the European Parliament. In addition, the Deputy Secretary General for CSDP and Crisis Response shall have annual exchange of views with the relevant parliamentary body in order to provide regular briefings.’;

                                          —

                                          to amend paragraph 1 of Article 12 as follows: ‘A Facility Committee (hereafter “the Committee”) composed of one representative of each participating Member State is established. Representatives of the European External Action Service (EEAS) and of the Commission shall be invited to attend the meetings of the Committee without taking part in its votes. Representatives of the European Defence Agency (EDA) may be invited to attend Committee meetings for items under discussion that relate to the EDA’s area of activity, without taking part in or being present at its votes. Representatives of the European Parliament may be invited to attend the Committee meetings without taking part in or being present at its votes.’;

                                          —

                                          to amend paragraph 8 of Article 13 as follows: ‘8. The administrator shall ensure continuity of his/her functions through the administrative structure of the competent military EEAS structures referred to in Article 9.’;

                                          —

                                          to add a new paragraph 8a. to Article 13 as follows: ‘8a. The administrator shall be involved in briefing the European Parliament.’;

                                          —

                                          to add a new paragraph 8a. to Article 16 as follows: ‘8a. The operation commanders shall be involved in briefing the European Parliament.’;

                                          —

                                          to amend paragraph 1 of Article 34 as follows: ‘The administrator shall propose to the Committee the appointment of an internal auditor of the Facility, and at least one deputy internal auditor, for a period of four years, renewable up to a total period not exceeding 8 years. Internal auditors must have the necessary professional qualifications and offer sufficient guarantees of security, objectivity and independence. The internal auditor may not be either the authorising officer or the accounting officer; he or she may not take part in the preparation of financial statements.’;

                                          —

                                          to amend paragraph 4 of Article 47 as follows: ‘4. The final destination of equipment and infrastructure financed in common shall be approved by the Committee, taking into account operational needs, human rights, security and diversion risk assessment as regards certified end-use and end-users, and financial criteria. The final destination may be as follows:

                                                      (i)

                                                      in the case of infrastructure, be sold or transferred through the Facility to the host country, a Member State or a third party;

                                                      (ii)

                                                      in the case of equipment, be sold through the Facility to a Member State, the host country or a third party, or be stored and maintained by the Facility, a Member State or such a third party, for use in a subsequent operation.’;

                                          —

                                          to amend paragraph 6 of Article 47 as follows: ‘6. Sale or transfer to the host country or a third party should be in accordance with international law, including the relevant human rights provisions and the “do no harm” principles, and with the relevant security rules in force and strictly comply with the criteria of Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, and Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items’;

                                          —

                                          to amend paragraph 1 of Article 48 as follows: ‘The High Representative may submit to the Council a concept for a possible Action Programme or a possible ad hoc assistance measure. The High Representative shall inform the European Parliament about any such Concept.’;

                                          —

                                          to amend paragraph 1 of Article 49 as follows: ‘Action Programmes shall be approved by the Council on a proposal from the High Representative. The European Parliament shall be informed of the approved Action Programmes once adopted by the Council.’;

                                          —

                                          to amend paragraph 3 of Article 50 as follows: ‘Where a request falls outside the existing Action Programmes, the Council may approve an ad hoc assistance measure on a proposal from the High Representative. The European Parliament shall be informed of the approved ad hoc assistance measures once adopted by the Council;’;

                                          —

                                          to add a new point fa) to Article 52, paragraph 2 as follows: ‘fa) A detailed list of equipment funded under the Facility shall be made available;’;

                                          —

                                          to amend point b) of Article 53, paragraph 1, as follows: ‘b) delivered effectively to the armed forces of the third state concerned provided that compliance with the criteria of Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, and Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items has been assessed;’;

                                          —

                                          to amend point d) of Article 53, paragraph 1, as follows: ‘d) used in accordance with Union policies, with due regard for international law, notably concerning human rights, and end-user certificates, in particular clauses on retransfers;’;

                                          —

                                          to amend point e) of Article 53, paragraph 1 as follows: ‘e) managed in compliance with any restriction or limitation on their use, sale or transfer decided by the Council or by the Committee, and in accordance with the relevant end-user certificates, the criteria of Council Common Position 2008/944/CFSP of 8 December 2008 defining common rules governing control of exports of military technology and equipment, and Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items;’;

                                          —

                                          to amend paragraph 1 of Article 54 as follows: ‘Any implementing actor entrusted with the implementation of expenditure financed through the Facility shall respect the principles of sound financial management and transparency, shall have undertaken the necessary risk assessments and end-use checks, and shall have due regard for EU fundamental values and international law, notably concerning human rights and the “do no harm” principles. Any such implementing actor shall be submitted to a prior risk assessment to gauge the possible human rights and governance risks.’;

                  2.

                  Recommends the following to the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy:

                              (a)

                              to consult Parliament on the recommended amendments, and to ensure that Parliament’s views are taken into consideration, in line with Article 36 of the TEU;

                              (b)

                              in line with Article 36 of the TEU, to fully implement Parliament’s views when preparing proposals for multi-year ‘action programmes’ or ad hoc assistance measures, including by withdrawing proposals that are opposed by Parliament;

                              (c)

                              to provide a full financial impact assessment for the decision, given its implications for the EU budget, outlining in particular additional personnel needs;

                              (d)

                              to submit draft Council decisions relating to the EPF to Parliament for consultation at the same time as they are submitted to the Council or to the Political and Security Committee, leaving Parliament time to present its views; invites the VP/HR to amend draft Council decisions where asked to do so by Parliament;

                              (e)

                              to ensure, in line with Article 18 of the TEU, complementarity with existing EU funds, programmes and instruments, the consistency of the EPF with all other aspects of the EU’s external action, notably as regards the Capacity Building for Security and Development initiative (CBSD) and the proposed Neighbourhood, Development and International Cooperation Instrument (NDICI), which should in all cases be implemented in the framework of the wider security sector reform programme, which must have strong components on good governance, provisions against gender-based violence, and, in particular, on civilian oversight over the security system and democratic control of the armed forces;

                              (f)

                              to provide regular feedback to Parliament on the progress made in implementing Resolution 1325 on women and peace and security, and to consult Parliament on the recommended gender component focusing on the role of women in the prevention and resolution of conflicts, and in post-conflict reconstruction and peace negotiations, as well as regular assessments of the measures taken to protect vulnerable people, including women and girls, from violence in conflict situations;

                              (g)

                              to ensure, in line with Article 18 of the TEU, the consistency of the EPF with all other aspects of the EU’s external action, including its development and humanitarian policies, and with a view to fostering the development of the third countries concerned, and to reducing and eradicating poverty in them;

                  3.

                  Instructs its President to forward this recommendation to the Council and the Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy and, for information, to the European External Action Service and the Commission.

         (1)  https://sustainabledevelopment.un.org/

         (2)  OJ L 58, 3.3.2015, p. 1.

         (3)  OJ L 84, 28.3.2015, p. 39.

         (4)  OJ L 77, 15.3.2014, p. 1.

         (5)  OJ L 335, 15.12.2017, p. 6.

         (6)  OJ L 335, 15.12.2017, p. 6.

         (7)  OJ L 58, 3.3.2015, p. 17.

         (8)  OJ L 335, 13.12.2008, p. 99.

         (9)  OJ L 134, 29.5.2009, p. 1.

         (10)  OJ L 210, 6.8.2013, p. 1.

         (11)  OJ C 353, 27.9.2016, p. 68.

         (12)  OJ C 224, 27.6.2018, p. 18.

         (13)  OJ C 369, 11.10.2018, p. 36.

         (14)  Texts adopted, P8_TA(2018)0514.

         (15)  OJ C 215, 19.6.2018, p. 202.


title: Commission Recommendation (EU) 2021/554 of 30 March 2021 on the form, content, time limits and level of detail to be given in notifications under the procedures set in Article 32 of Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code

text:
               31.3.2021

               EN

               Official Journal of the European Union

               L 112/5

      COMMISSION RECOMMENDATION (EU) 2021/554
      of 30 March 2021
      on the form, content, time limits and level of detail to be given in notifications under the procedures set in Article 32 of Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code
      THE EUROPEAN COMMISSION,
      Having regard to the Treaty on the Functioning of the European Union,
      Having regard to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (1) (the Code), and in particular Article 34 thereof,
      Whereas:

                  (1)

                  Under the Code, the national regulatory authorities (NRAs) are to contribute to the development of the internal market by working with each other, with the Commission and with the Body of European Regulators of Electronic Communications (BEREC) under Regulation (EU) 2018/1971 of the European Parliament and of the Council (2), in a transparent manner in order to ensure the consistent application of the Code in all Member States.

                  (2)

                  To ensure that decisions taken at national level do not adversely affect the internal market for electronic communications or the objectives of the regulatory framework, NRAs are required to notify the Commission, BEREC and the NRAs in other Member States of the draft measures referred to in Article 32(3) of the Code. This notification therefore constitutes an essential procedural requirement. Consequently, failure to comply with this requirement, including in the case of draft decisions specifying or modifying previously notified regulatory obligations, may lead to the annulment of the measure in conformity with national law (3).

                  (3)

                  Articles 32 and 33 of the Code lay down certain procedures and binding time limits for the consideration of the notifications.

                  (4)

                  To ensure the effectiveness of cooperation and the consultation mechanism, and to contribute to legal certainty, recommendations concerning the main procedural aspects of the notifications made under the relevant provisions were introduced by Commission Recommendation 2003/561/EC (4). Recommendation 2003/561/EC was later replaced by Recommendation 2008/850/EC (5) with a view to further simplifying and improving guidance on the notification process. This Recommendation updates the applicable guidance to reflect recent practice and accommodates the provisions of the Code.

                  (5)

                  Pre-notification contacts to discuss formal and substantive issues concerning draft measures before formal notification have proven to be very useful for both the Commission and the NRAs, which have often requested them. During such exchanges, NRAs have the opportunity to present their draft measures and have an open discussion with the Commission services on the proposed national measures. Therefore, NRAs should be encouraged to request pre-notification contacts as early as possible, before or/and after their national consultations, especially for draft measures concerning market reviews.

                  (6)

                  Contacts between the Commission services and the notifying NRAs are foreseen at different stages of the notification process, including when the Commission services request additional information from the NRA or immediately after the Commission adopts comments or no comments letters or decisions opening an in-depth phase of investigation.

                  (7)

                  The Code allows NRAs to withdraw a notified draft measure at any time. Where a notified draft measure is withdrawn in the initial 1-month period, the notified measure is always removed from the register in the secure electronic interface (6). Where, however, the notified draft measure is withdrawn only after the Commission has issued a decision requiring the NRA to withdraw that draft measure under Article 32(6), point (a) of the Code, the initially notified measure remains in the secure electronic interface for transparency purposes. In either case, a notice of withdrawal is published in the public section of the secure electronic interface.

                  (8)

                  To give further guidance to NRAs on the content of draft measures, this Recommendation identifies certain minimum information that should be provided on the content of draft measures in order for them to be properly assessed. This should also reduce the amount of information subsequently requested by the Commission during the assessment of the notification.

                  (9)

                  Account has to be taken of the need to ensure effective assessment, on the one hand, and to simplify administrative procedures as far as possible, on the other. In this respect, the notification mechanism should not involve any unnecessary administrative burdens on the parties concerned. To help simplify the examination of a notified draft measure by the Commission, BEREC and other NRAs, and to make the process faster, NRAs should use a set of forms for notifications.

                  (10)

                  In order to increase transparency on a notified draft measure and to facilitate the exchange of information about such measures between NRAs, BEREC and the Commission, both the Standard and the Short Notification Forms that are made public should contain a clear, summarised description of the main elements of the draft measure to be notified. The templates of those forms indicate that the information required in the template sections should be provided where applicable, meaning that not all the information may be relevant in every single case.

                  (11)

                  A Short Notification Form should be used for certain categories of draft measures of a recurring and/or technical character in order to reduce the administrative burden on all parties concerned. NRAs frequently amend technical details of the remedies previously imposed to take account of changes in relevant economic indicators or factors (such as changes in the cost of equipment, cost of labour, inflation rate, or property rental rates), or to update forecasts or assumptions. Only changes or updates of details that do not change the nature or the general scope of pre-existing remedies should be notified by means of the Short Notification Form. The assessment of such types of draft measures is likely to be less complex; therefore, as it has happened already in the past, it may be completed by the Commission in less than 1-month period. Similarly, the Commission’s past practice shows that the assessment of those types of draft measures has often not given rise to comments by the Commission to the NRA in accordance with Article 32(3) of the Code. Therefore, it is clarified in the Recommendation in which situations a Short Notification Form can be used.

                  (12)

                  On the other hand, material changes to the nature or scope of remedies that have an appreciable impact on the market, such as amendments to the methodologies used to calculate costs or prices (7), determination of glide paths or changes in price levels (except for price updates that simply reflect changes in the relevant economic indicators or factors described above), should be notified using the Standard Notification Form.

                  (13)

                  The set of notification forms should also include, where applicable, indications on the content of notifications related to the new provisions introduced by the Code. This includes in particular notifications falling under the scope of Articles 61 and 76 of the Code (symmetric access obligations and co-investment offers) and under the scope of Articles 78 to 81 of the Code (voluntary separation, commitments, wholesale-only undertakings and migration from legacy infrastructure).

                  (14)

                  The mechanism allowing the Commission to require NRAs to withdraw planned measures concerning market definition and the designation of undertakings as having significant market power, where such measures would create a barrier to the internal market or would be incompatible with Union law, has contributed significantly to consistent regulatory approaches amongst Member States. The mechanism has proven to be effective in clarifying the circumstances in which ex ante regulation should be applied.

                  (15)

                  The experience of the internal market procedure under Articles 7 and 7a of Directive 2002/21/EC of the European Parliament and of the Council (8) has shown that inconsistencies in the NRAs’ application of remedies under similar market conditions may undermine the internal market in electronic communications.

                  (16)

                  The Code has conferred new powers on the Commission, where BEREC shares its concerns, to require an NRA to withdraw draft measures relating to (i) the extension of obligations beyond the first concentration or distribution point to address high and non-transitory economic or physical barriers to replication (Article 61(3) of the Code), or (ii) to the regulatory treatment of new very high-capacity networks (VHCN) (Article 76 of the Code).

                  (17)

                  To meet the general objectives laid down in Article 3 of the Code, in particular the objectives of removing remaining obstacles to the internal market and promoting regulatory predictability, full compliance with the notification mechanism laid down in Article 32 of the Code is essential.

                  (18)

                  With the aim to increase the transparency and effectiveness of Article 32 consultation mechanism, the Commission, other NRAs and BEREC should be able to verify readily whether and how the notifying NRA has taken into account the comments provided on a notified draft measure. To this purpose, when an NRA communicates the adopted measure to the Commission, BEREC or other NRAs, after having received comments from them, it should specify the manner in which it took the utmost account of those comments.

                  (19)

                  NRAs’ requests to extend the deadline to notify a new market analysis under Article 67(5) of the Code are to contain sufficient and reasoned information to allow the Commission to assess whether to grant the requested extension.

                  (20)

                  Pursuant to Article 34 of the Code, BEREC provided its opinion on this Recommendation (9) on 12 February 2021,

            HEREBY RECOMMENDS:

         Communication channels

                  1.

                  NRAs are encouraged to avail themselves of the opportunity to discuss informally with the Commission services any preliminary findings or questions related to future draft measures in a pre-notification meeting (including a phone call or videoconference, where more convenient). These pre-notification contacts should be encouraged, before and/or after the national consultation provided for in Article 23(1) of the Code. These pre-notification contacts are of particular importance for draft measures consisting of market reviews but also relevant for remedies. In those cases, in particular where the draft measure is subject to significant changes following the public consultation, additional pre-notification contacts are encouraged before the formal notification of such measures under Article 32(3) of the Code.

                  2.

                  NRAs should submit notifications via the secure electronic interface identified by the Commission.

                  3.

                  Where, for technical or other reasons, documents related to the notification cannot be uploaded to the secure electronic interface, the NRA may send the documents to the Commission by electronic mail. Other NRAs and BEREC may nevertheless access those documents in the secure electronic interface where they are saved without delay by the Commission. The NRA should upload any document, exceptionally sent by electronic mail, to the secure electronic interface as soon as technically possible.

                  4.

                  Following the upload of a notification to the secure electronic interface (registration) of a notification, the Commission may send the NRA a request for information or clarification, in accordance with Article 20(2) of the Code. It is recommended that NRAs provide the information requested within 3 working days (10), where this is readily available. NRAs should inform the Commission services of any problem they might encounter to meet this deadline.

                  5.

                  Where another NRA or BEREC makes comments on a notification, it may issue these comments in any official language it chooses, which may facilitate their consultation by all other NRAs. It should communicate those comments to the Commission, BEREC and the other NRAs, by electronic means, preferably by uploading them into the public section of the Commission’s secure electronic interface.

                  6.

                  NRAs should identify and redact any confidential information, and request correction of any errors contained in the Commission comments or no comments letter within 3 working days, before the latter is published in the public section of the Commission secure electronic interface.

                  7.

                  An NRA may decide at any time to withdraw the notified draft measure. In this case, the NRA should upload a Notice of Withdrawal in the secure electronic interface.

                  8.

                  Where an NRA adopts a draft measure, previously notified under Article 32(3) of the Code, after having received comments from the Commission, BEREC or another NRA, it should communicate to the Commission, BEREC and other NRAs both the adopted measure and the manner in which it took the utmost account of the comments made. In order to increase transparency, and facilitate procedures for the communication of adopted measures, NRAs should communicate to the Commission their adopted measures by completing and submitting the form set out in Annex IV, along with the adopted measure.

         Level of detail to be contained in notifications

                  9.

                  Notifications should be in any of the official languages of the Union. The Standard Notification Form (Annexes I and II) or the Short Notification Form (Annex III), together referred to as the ‘set of notification forms’, and the communication of adopted measures (Annex IV) may be in any official language, which may facilitate exchanges between NRAs and BEREC.

                  10.

                  Draft measures notified by an NRA should be duly substantiated and accompanied by any other documentation needed for the assessment of the measure. All information submitted by NRAs should be complete and summarised in the notification form.

                  11.

                  In order to improve the efficiency of the notification mechanism, to increase legal certainty for NRAs and market players and to ensure timely implementation of regulatory measures, it is desirable that a notification by an NRA covering a market analysis also include the remedies proposed by the NRA to address the market failures identified, where possible. Where the draft measure relates to a market that is found to be competitive and remedies already exist in relation to that market, the notification should also include the proposal to withdraw those obligations.

                  12.

                  The set of notification forms are not meant to replace the notified draft measure, but their correct use should enable the Commission, BEREC and the NRAs of other Member States to verify that the notified draft measure does indeed contain all the information needed to carry out their tasks under Articles 32 and 33 of the Code within the time frame set therein.

                  13.

                  The requested information should be provided by the NRA in the relevant sections of the notification form, with cross-references to the part of the notified draft measure where this information is to be found.

                  14.

                  NRAs are encouraged to discuss in advance with the Commission, especially during informal pre-notification contacts any questions on whether a given national measure would fall in the scope of Article 32(3) of the Code, and on the form or substance of planned notifications. Accordingly, NRAs are encouraged to consult the Commission on any aspect of or question on the set of notification forms and, in particular, on the kind of information they are requested to supply.

         Notification by way of Standard Notification Form

                  15.

                  Draft measures should be made available to the Commission, BEREC and other NRAs accompanied by a duly completed Standard Notification Form as set out in Annex I and II, except in the cases referred in point 18 of this Recommendation.

                  16.

                  The notified draft measures should include each of the following, where applicable:

            (a)
            information required for all notifications by way of a Standard Notification Form

                  (1)

                  the dates and results of the prior public consultation carried out by the NRA;

                  (2)

                  the opinion issued by the national competition authority, where provided;

            (b)
            additional information required for notifications of draft measure related to market analysis and imposition of remedies (Articles 64, 67 and 68 of the Code)

                  (1)

                  the relevant product or service market (11), in particular, a description of the products and services to be included in and excluded from the relevant market on the basis of demand-side and supply-side substitutability; where, for the purposes of the market analysis, a draft measure defines a relevant market which differs from those in the Commission Recommendation (EU) 2020/2245 (12), NRAs should demonstrate that the criteria set in Article 67(1) of the Code are met;

                  (2)

                  the relevant geographic market, including a reasoned analysis of the competitive conditions on the basis of demand-side and supply-side substitutability as well as information and data used in the geographic analysis, regarding the choice of the basic geographic unit, the structural and behavioural indicators used (that is to say, where applicable, number of competing networks, market shares and shares trends, analysis of pricing behaviours or different prices at regional level, and behavioural patterns) (13);

                  (3)

                  the main undertakings active on the relevant market;

                  (4)

                  the results of the analysis of the relevant market, in particular findings on the presence or absence of effective competition on the relevant wholesale market and, the analysis of the corresponding retail market, including the reasons for that presence or absence i.e. the notified draft measure should contain the market shares (preferably both in terms of value and volume) of the different undertakings and trends in these market shares and a reference to other relevant criteria, as appropriate, such as barriers to entry, economies of scale and scope, vertical integration, control of infrastructure not easily duplicated, technological advantages or superiority, absence of or low countervailing buying power, easy or privileged access to capital markets/financial resources, overall size of the undertaking, product/services diversification, highly developed distribution and sales network, absence of potential competition and barriers to expansion;

                  (5)

                  where the case, the undertakings to be designated as having, individually or jointly, significant market power and the reasoning, evidence and any other relevant factual information in support of such designation;

                  (6)

                  in the case of notification of draft measures which fall within the scope of Articles 68 of the Code, the specific regulatory obligations proposed to address the lack of effective competition in the relevant market concerned or, in cases where a relevant market is found to be effectively competitive and such obligations have already been imposed on that market, the draft measures proposed to withdraw those obligations;

                  (7)

                  for draft measures falling in the scope of Article 76(2) of the Code, the notification should contain in particular: a detailed description of the commitment offered by the significant market power operator and how it complies with the conditions of Article 76(1) of the Code, a description of the regulatory treatment of the new very high-capacity networks network elements subject to the commitment, the entities co-investing, the degree of their co-investment and their likely competitive role on the market, and, where relevant a description of the remedies imposed on the basis of the third subparagraph of Article 76(2) of the Code and the justification for imposing, maintaining or adapting such remedies;

                  (8)

                  for draft measures falling under Article 79 of the Code, the notification should include the commitment decision (where it is distinct from the draft measure), a detailed description of the conditions accepted by the NRA and the nature and results of the market test performed;

                  (9)

                  for draft measures falling under the scope of Article 80 of the Code, the notification should include the relevant information showing in detail that the conditions for removing some of the significant market power obligations, under Article 80(1) of the Code, are met;

                  (10)

                  notifications made in accordance with Article 68(3) second subparagraph of the Code should also contain adequate reasoning to support the request to the Commission as to why obligations for access or interconnection other than those listed in Articles 69 to 74 and Articles 76 and 80 of the Code should be imposed on operators with significant market power;

                  (11)

                  notifications falling within the scope of Article 68(5) of the Code should also contain adequate reasoning as to why the intended draft measures are required in order to comply with international commitments;

            (c)
            additional information required for notifications of other type of draft measures (Article 61 of the Code)

                  (1)

                  in the case of notification of draft measures falling under Article 61(1) to 61(4) of the Code, the draft measure should include the affected undertakings, the justification of the draft measure under the legal basis used, the description of the obligations to be imposed, and a reference to any related previously notified draft measures including the results of the analysis of the relevant market which may be affected, as described in point (4);

                  (2)

                  in particular, draft measures falling under Article 61(3) of the Code should include a description of how the NRA determined the first concentration or distribution point (FCDP), and/or the point beyond the FCDP capable of hosting a sufficient number of end-user connections to enable an efficient undertaking to overcome the significant replicability barriers identified, and information and reasoning supporting the conclusion that the concerned network elements are not replicable, and that therefore obligations are justified; in particular, regarding obligations proposed under Article 61(3), second subparagraph, NRAs should include a description of which economic or physical barriers to replication they consider high and non-transitory and the competition problems and market failures at the retail level that the proposed obligations seek to address, and the justifications for any exception that would apply, such as the determination of which network deployments can be considered new and which projects can be considered small.

         Notifications by way of Short Notification Form

                  17.

                  The following draft measures should be made available by duly completing the Short Notification Form, set out in Annex III:

                              (a)

                              draft measures of a purely technical nature that update details of previously imposed regulatory remedies and do not have an appreciable impact on the market; such draft measures may be modifications to reference offers that contain minor adjustments of the obligations already defined, and notifications in second instances (14) when there is no change made or it is of technical nature;

                              (b)

                              updates of decisions concerning the Economic Replicability Test, which do not change the underlying methodology (such as testing of new prices/offers);

                              (c)

                              subsequent notifications of other operators’ obligations using the same approach/methodology that was already used (such as update of obligations on termination markets), if those amendments are limited to remedies, and do not concern market definition and significant market power designation;

                              (d)

                              draft measures falling under the scope of Article 76(2) of the Code, only to the extent that they are limited to subsequent individual draft decisions under a previously notified and assessed co-investment scheme, and provided there was no material change in circumstances since the assessment of the co-investment scheme (15).

                  18.

                  For draft measures listed in point 17, it should be sufficient for the NRA to complete and submit a Short Notification Form and to upload the draft measure to the Commission’s secure electronic interface so that it can be publicly accessible. In case the Commission considers, during the assessment of the notified measure, that additional documentation is needed, it can request it at any stage of the procedure.

                  19.

                  However, if the Commission, upon verification of the conditions for a Short Notification Form to fall within the categories listed under point 17 within 5 working days, considers that those conditions are not met, the notifying NRA should submit the draft measure using the Standard Notification Form without delay. In such cases the 1-month review period would not be interrupted.

                  20.

                  In planning notifications made pursuant to Article 68(3), second to fourth subparagraphs, of the Code, the NRAs should envisage that a period of at least 5 months would be necessary for the adoption of the authorising decision by the Commission, given the need to consult with BEREC these measures that need to be adopted as implementing acts under Article 118(3).

         Registration of notifications

                  21.

                  Notifications made by means of the set of notification forms listed in points 16 and 17, are registered in the order in which they are notified. NRAs should note that the 1-month review period starts immediately at the moment of reception of the notification of the draft measure.

                  22.

                  The acknowledgement and allocation of a notification number should be registered, and notice by electronic means should be given to all NRAs, BEREC and other registered users of the Commission’s secure electronic interface. This registration notice should include the following:

                              (a)

                              the registration date of the notification;

                              (b)

                              the subject matter of the notification;

                              (c)

                              the notification form;

                              (d)

                              any supporting documentation received.

         Processing of Confidential Information

                  23.

                  Where the NRA considers that information related to a notification is confidential in accordance with Union and national rules on commercial confidentiality the originator of the information should mark it clearly as ‘Confidential’, before uploading it to the Commission’s secure electronic interface or, where applicable, sending it by electronic means.

                  24.

                  To ensure transparency for notifications, any notification submitted as ‘Confidential’ should also be submitted in a redacted or adapted non-confidential version that will be made public.

                  25.

                  When completing the notification forms referred to in point 9, NRAs should not include confidential information.

                  26.

                  This Recommendation is addressed to the Member States.

         Done at Brussels, 30 March 2021.

               For the Commission

            Thierry BRETON

               Member of the Commission

         (1)  OJ L 321, 17.12.2018, p. 36.

         (2)  Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 December 2018 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 (EC) No 1211/2009 (OJ L 321, 17.12.2018, p. 1).

         (3)  Judgment of the European Court of Justice of 20 December 2017, Polkomtel sp. z o.o v Prezes Urzędu Komunikacji Elektronicznej, C-277/16 paragraph 45, ECLI:EU:C:2017:989; judgment of the European Court of Justice of 14 April 2016, Polkomtel, C-397/14, paragraph 56 and reply of the Court to question 2, EU:C:2016:256; judgment of the European Court of Justice of 17 September 2015, KPN BV v Autoriteit Consument en Markt (ACM) C-85/14 point 47, ECLI:EU:C:2015:610. Please also see national court judgments of the Italian Consiglio di Stato, n. 3722/2019, which annulled AgCom’s decision n. 259/14/CONS based on purely procedural grounds (without entering in the merits of the dispute) for failure to comply with the internal market consultation procedure. Also, the Polish courts annulled the national regulatory decisions, affecting trade between Member States which imposed regulatory obligations without mandatory prior EU consultations (VI ACa 1148/11, VI ACa 137/14).

         (4)  Commission Recommendation 2003/561/EC of 23 July 2003 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 190, 30.7.2003, p. 13).

         (5)  Commission Recommendation 2008/850/EC of 15 October 2008 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 301, 12.11.2008, p. 23).

         (6)  CIRCABC, https://circabc.europa.eu/ui/welcome

         (7)  For example, information regarding the calculation of the Weighted Average Cost of Capital in line with the Notice on the calculation of the cost of capital for legacy infrastructure (WACC Notice) (2019/C 375/01).

         (8)  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (OJ L 108, 24.4.2002, p. 33).

         (9)  BoR (21) 20.

         (10)  Time limits are calculated according to Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ L 124, 8.6.1971, p. 1).

         (11)  See in particular point 24 to 51 of the Commission Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (2018/C 159/01).

         (12)  Commission Recommendation (EU) 2020/2245 of 18 December 2020 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (OJ L 439, 29.12.2020, p. 23).

         (13)  See Recommendation (EU) 2020/2245 and Explanatory Note (SWD(2020) 337 final) accompanying the Recommendation.

         (14)  That may be the case when a national court annuls an NRA’s decision on procedural grounds, and that NRA has to renotify the Commission the same measure.

         (15)  See recital 201 of the Code: in the specific case of co-investment schemes falling under Article 76 of the Code. Recital 201 indicates that: ‘In the interest of efficiency, a national regulatory authority should be able to submit a single notification to the Commission of a draft measure that relates to a co-investment scheme that meets the relevant conditions. Where the Commission does not exercise its powers to require the withdrawal of the draft measure, it would be disproportionate for subsequent simplified notifications of individual draft decisions of the national regulatory authority on the basis of the same scheme, including in addition evidence of actual conclusion of an agreement with at least one co-investor, to be subject to a decision requiring withdrawal in the absence of a change in circumstances.’

         ANNEX I
         STANDARD NOTIFICATION FORM

            Draft measure related to market analysis and imposition of remedies (Articles 64, 67 and 68 of the Code)

         (referred to in points 16(a) and (b))

                        Section 1 – Market definition

                     Please provide information on the following, where applicable:

                                 1.1

                                 The relevant product/service market.

                                 1.2.

                                 The relevant geographic market/s

                                 1.3.

                                 If the National Competition Authority (‘NCA’) issued an opinion, indication of whether it agrees or not with the proposed draft analysis of the relevant market

                        Agreement

                     ☐

                        Disagreement

                     ☐

                     If the NCA disagrees, please outline the reasons:

                                 1.4

                                 Dates of the national public consultation

                        From________ to__________

                                 1.5

                                 A brief overview of the results of the public consultation on the proposed market definition. Please indicate whether any change was made to the draft measure subsequently to the public consultation, and if so, briefly describe the changes.

                        (e.g. how many comments were received, which respondents agreed with the proposed market definition, which respondents disagreed with it and for which reasons).

                                 1.6.

                                 Where the relevant market is different from those listed in the Recommendation (EU) 2020/2245, a summary of the main reasons justifying the proposed market definition in light of the three criteria set in Article 67(1) of the Code (1).

                        Section 2 – Designation of undertakings with Significant Market Power (SMP)

                     Please provide information on the following, where applicable:

                                 2.1.

                                 The name of the undertakings designated as having, individually or jointly, SMP.
                                 Where applicable, the name of the undertakings considered as no longer having SMP.

                                 2.2.

                                 The criteria used to designate whether or not an undertaking has individual or joint SMP.

                                 2.3.

                                 The name of the main undertakings (competitors) active in the relevant market.

                                 2.4.

                                 The market shares of the undertakings mentioned above and the basis for calculation of market share (e.g. turnover, number of subscribers).

                                 2.5.

                                 If the National Competition Authority (‘NCA’) issued an opinion, indication of whether it agrees or not with the proposed draft SMP assessment.

                        Agreement

                     ☐

                        Disagreement

                     ☐

                     If the NCA disagrees, please outline the reasons:

                                 2.6.

                                 The results of the public consultation on the proposed designation(s) as undertakings having SMP (e.g. total number of comments received, numbers agreeing/disagreeing). Please indicate whether any change was made to the draft measure subsequently to the public consultation, and if so, briefly describe the changes.

                        Section 3 - Regulatory obligations

                     Please provide information on the following, where applicable:

                                 3.1.

                                 The legal basis for the obligations to be imposed, maintained, amended or withdrawn (Articles 69 to 74 and Articles 76 to 81 of the Code).

                                 3.2.

                                 The reasons for which the imposition, maintenance or amendment of obligations on undertakings is considered proportional and justified in light of the legal provision they are based on. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found.

                                 3.3.

                                 Where the remedies proposed are other than those set out in Articles 69 to 74, and Articles 76 and 80 of the Code, please indicate what ‘exceptional circumstances’ within the meaning of Article 68(3) of the Code justify the imposition of such remedies. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found.

                        Section 3a - Draft measures under Article 76(2) of the Code

                     Please provide information on the following, where applicable:

                                 3a.1.

                                 Short description of the commitments offered by the SMP operator and how they comply with the conditions of Article 76(1).

                                 3a.2.

                                 A description of the regulatory treatment of the new VHCN network elements subject to the commitment under Article 76(2), first subparagraph.

                                 3a.3.

                                 If applicable, a description of the remedies imposed on the basis of the third subparagraph of Article 76(2).

                        Section 3b – Draft measures under Article 79 of the Code

                     Please provide information on the following, where applicable:

                                 3b.1.

                                 Short description of the attached commitment decision (or, indication of the paragraphs, sections or pages of the draft measure where such information is to be found).

                        Section 3c – Draft measures under Article 80 of the Code

                     Please provide information on the following, where applicable:

                                 3c.1.

                                 Short description of the structure of the undertaking (or indication of the paragraphs, sections or pages of the draft measure where such information is to be found).

                                 3c.2.

                                 If applicable, a description of the remedies imposed or withdrawn.

            (1)  Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code.

         ANNEX II
         STANDARD NOTIFICATION FORM

            Symmetric obligations under Article 61 of the Code

         (referred to in points 16(a) and (c))

                        Section 1 – Draft measures concerning imposition of symmetric obligations

                     Please provide information on the following, where applicable:

                                 1.1.

                                 A brief summary of the content of the notified draft measure.

                                 1.2.

                                 The legal basis for the obligations to be imposed, maintained, amended or withdrawn (Articles 61 paragraph 1, 2, 3 or 4).

                                 ☐

                                    Article 61(1)

                                 Article 61(2)

                                 ☐

                                 point (a)

                                 ☐

                                 point (c)

                                 ☐

                                 point (b)

                                 ☐

                                 point (d)

                        Article 61(3)

                                 ☐

                                 First subparagraph

                                 ☐

                                 Second subparagraph

                                 ☐

                                    Article 61(4)

                                 1.3.

                                 The Article 32 notification reference of any related previously notified draft measures, where applicable.

                                 1.4.

                                 The names of the affected undertakings.

                                 1.5.

                                 The obligations to be imposed, maintained or withdrawn.

                                 1.6.

                                 The reasons for which the imposition, maintenance or amendment of obligations on undertakings is considered proportional and justified in the light of the legal provision they are based on. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found.

                                 1.7.

                                 The opinion of the national competition authority, where provided.

                                 1.8.

                                 The date(s) of the public consultation on the proposed obligations and a brief overview of the results of that public consultation. Please indicate whether any change was made to the draft measure subsequently to the public consultation, and if so, briefly describe the changes.

         ANNEX III
         SHORT NOTIFICATION FORM
         (referred to in point 17)

                        Section 1 – Draft measures that change the technical details of previously imposed regulatory remedies
                         (1)
                        or subsequent notifications of other operators’ obligations using the same approach/methodology that was already used

                     Please provide information on the following, where applicable:

                                 1.1

                                 The notification reference number/s of the previously notified draft measure/s).

                                 1.2

                                 Short description of the technical detail/s being changed (indicating the relevant market concerned), or in the case of a subsequent notification of other operators’ obligations using the same approach/methodology that was already used, indication of the remedies to be imposed.

                                 1.3.

                                 If the technical details updated relate to a pricing structure (e.g. annual updates of costs and estimates of accounting models) explanation on whether this is a routine update.

                                 1.4.

                                 Was the NCA consulted on the proposed draft measure? If so, what was its opinion?

                                 1.5

                                 Comments:

                        Section 2 - Draft measures in the form of subsequent individual draft decision under a previously notified and assessed co-investment scheme provided there was no change in circumstances. (Article 76 of the Code)

                     Please provide information on the following, where applicable:

                                 2.1.

                                 Short description of the content of the draft measure, indicating evidence of conclusion of an agreement with at least one co-investor.

                                 2.2.

                                 Notification reference number/s of the previously notified draft measure/s

                                 2.3.

                                 List of the operators to whom this draft measure is applicable.

                                 2.4.

                                 Was the NCA consulted on the proposed draft measure? If so, what was its opinion?

                                 2.5.

                                 Comments.

            (1)  NRAs frequently amend technical details of the remedies previously imposed to take account of changes in relevant economic indicators or factors (such as changes in the cost of equipment; cost of labour; inflation rate; or property rental rates), or to update forecasts or assumptions. Only changes or updates of details that do not change the nature or the general scope of pre-existing remedies should be notified by means of the Short Notification Form. On the other hand, material changes to the nature or scope of the remedies (such as amendments to the methodologies used to calculate costs or prices; to the determination of glide paths or to price levels, except for the price changes that simply reflect changes in relevant economic indicators or factors mentioned above,) should be notified using the Standard Notification Form.

         ANNEX IV
         COMMUNICATION OF ADOPTED MEASURE/S
         (referred to in point 8)

                        Section 1 - Identification of Adopted Measure

                     Please provide information on the following, where applicable:

                                 1.1.

                                 Date of entry into force of the adopted measure

                                 1.2.

                                 Registration number and title of notification previously made to the Commission on the measure at draft stage.

                                 1.3.

                                 Did your NRA receive comments from the Commission, other NRAs or BEREC in reaction to the notification of the draft measure under Article 32(3) Code?

                        Yes

                     ☐

                        No

                     ☐

                        Section 2 – Detail on how utmost account was taken of comments made

                     Please provide information on the following, where applicable:

                                 2.1.

                                 Explanation on how the NRA took utmost account of the comments raised. Where, in order to reflect comments made, changes have been made to the text of the draft measure please provide the relevant references to the updated Articles/section/page number.

                     [Heading of the comment 1]

                        Explanations how it was taken into account and/or reference to the section of the adopted measure where this information can be found

                     [Heading of the comment 2]

                        Explanations how it was taken into account and/or reference to the section of the adopted measure where this information can be found

                     [Heading of the comment 3]

                        Explanations how it was taken into account and/or reference to the section of the adopted measure where this information can be found