Decision No BoR/2024/02 of the Board of Regulators to establish Working Arrangements between the NRAs of Ukraine and the Body of European Regulators for Electronic Communications (BEREC)

In March 2019, the Commission adopted six decisions concerning the participation of the NRAs of those countries in BEREC. In particular, it allowed the NRAs of Western Balkans (including Kosovo*) to participate in the Board of Regulators and working groups of BEREC and in the management board of the BEREC Office. A few months later, BoR and MB adopted relevant decisions about the working arrangements which were then signed. Similar procedure was followed in 2022 with the Ukrainian NRA.

In June 2019, Spain brought an action for annulment of that decision before the General Court of the European Union. That action was dismissed by judgment of 23 September 2020, Spain vs Commission (T-370/19). Spain lodged an appeal against that judgment in November 2020.

As a result the Court of Justice annulled the Commission’s decision, since the Commission did not have the power to adopt it (See Provisional text of the Judgement of the Court in Case C-632/20 P). In particular, according to the Court of Justice the power to draw up working arrangements applying to the participation of NRAs of third countries lies with BEREC and the BEREC Office.

However, in order not to jeopardise the participation of the NRA of Kosovo* in BEREC, the Court of Justice rules that the effects of the Commission’s decision are to be maintained until the entry into force of any new working arrangements concluded between BEREC, the BEREC Office and the NRA of Kosovo*. The effects of that decision may not, however, be maintained beyond a reasonable period of six months from the day of the decision.

This Judgement refers only to a specific Commission decision, however, it has implications for all the other Commissions’ decisions concerning participation of NRAs in the work of BEREC and BEREC Office. As a result new Working Arrangement was agreed with the NRA of Ukraine which was adopted via electronic voting procedure on 31 January 2024.