As a contribution to the ongoing debate on the proposed Digital Markets Act (DMA), the Board of European Regulators for Electronic Communications (BEREC) recently released three papers providing a perspective on the proposal's potential impact on the telecoms market.
Remedies-tailoring and structured participation
In its paper on remedies-tailoring and structured participation processes for stakeholders, BEREC focuses on the experience of National Regulatory Authorities (NRAs) concerning the regulation of telecommunications markets. BEREC believes that, in addition to directly-applicable obligations, the DMA proposal could include ex-ante principles and a set of remedies ("toolbox"). This would provide the European Commission, as the competent EU body, the possibility to tailor these remedies to reach the objective of the regulation.
BEREC considers that other interested third parties, such as business users or alternative platforms, should be properly involved in the process to ensure transparency and fairness. Experience with market analysis in the electronic communications sector has shown that a principles-based approach enables the analysis, adoption and full implementation of the measures to reach objectives faster than directly applicable regulation. Moreover, static obligations may not be sufficiently future-proof.
According to BEREC, the DMA should facilitate the imposition of tailored remedies that, in the longer term, are more efficient and quicker to solve identified issues, as they provide the necessary flexibility to adapt the regulatory measures to a specific gatekeeper, service or market situation. The Board sees a need for ex-ante principles to be used to tailor general remedies such as access, inter-operability and detailed non-discrimination, executed by the Commission and supported by National Independent Authorities (NIAs).
Secondly, BEREC finds it of pivotal importance that the DMA provides transparency and allows the structured participation of all relevant parties providing their views, not only the regulated entities, through due process.
Additionally, instead of an Implementing Act, BEREC proposes that the DMA foresees the publication of guidelines based on a set of principles or elements that should be included in all agreements between "gatekeeper" platforms and business users. This is similar to the BEREC guidelines on minimum criteria for a reference offer used in the regulatory framework for electronic communications.
Setup of advisory board
BEREC also released a proposal on the establishment of an Advisory Board in the context of the DMA. BEREC notes that the DMA envisages a central role for the European Commission and an inter-governmental Committee (DMAC). Apart from the Committee, no further national intervention in support of the Commission seems to be envisaged for the enforcement of the DMA provisions. BEREC sees merit in providing support from National Independent Authorities for the enforcement of the DMA through an Advisory Board in order to:
Interplay with number-independent interpersonal communication services
In a report on the interplay between the European Electronic Communications Code ('the Code') and the Commission's DMA proposal with respect to number-independent interpersonal communication services, BEREC emphasised the need to avoid potential regulatory overlap, conflicting remedies and legal uncertainty. In this context, the Board considers that the provision of electronic communications networks and services should be addressed by prioritising measures within the existing regulatory framework (i.e. the Code).
Furthermore, BEREC suggests a series of amendments to better address the potential overlap between the DMA and the Code. The aim is to clarify that the DMA does not and will not include any core platform services other than the number-independent interpersonal communication services provided by "gatekeepers". All powers in the Code remain applicable to such services. A cooperation mechanism should be implemented between the Commission, BEREC, the National Regulatory Authorities and/or the future DMA Advisory Board.
Since BEREC has no institutional means to participate in the legislative process, it remains to be seen if the Commission, the Council of Ministers and the European Parliament will adopt BEREC's proposals in the final version of the Digital Markets Act.
For further information contact Feyo Sickinghe