Case T‑370/19

Kingdom of Spain

v

European Commission

Judgment of the General Court (Ninth Chamber), 23 September 2020

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

1. International agreements – Technical cooperation – Electronic communications – Body of European Regulators for Electronic Communications – Participation of the regulatory authorities of third countries in that body – Third country – Concept – Entities subject to international law which may have rights and obligations – Kosovo – Included

   (Arts 212 and 216 to 218 TFEU; European Parliament and Council Regulation 2018/1971, Art. 35(2))

   (see paragraphs 28-30, 35, 36)

2. International agreements – Technical cooperation – Electronic communications – Body of European Regulators for Electronic Communications – Participation of the regulatory authorities of third countries in that body – ‘Agreement with the Union to that effect’ – Concept – Agreement entered into between the European Union and another entity subject to international public law – Agreement containing provisions used as a basis for cooperation between the European Union and the third country concerned in the field of electronic communications – Stabilisation and Association Agreement between the European Union and Kosovo – Included

   (European Parliament and Council Regulation 2018/1971, Art. 35(2); Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part, Art. 111)

   (see paragraphs 46-48, 53, 54)

3. International agreements – Technical cooperation – Electronic communications – Body of European Regulators for Electronic Communications – Participation of the regulatory authorities of third countries in that body – Working arrangements applicable to that participation – Determination procedure – Requirement for compliance with the provisions of agreements entered into with the European Union for the purposes of that participation – Commission’s jurisdiction to prescribe such working arrangements unilaterally

   (Art. 17 TEU; European Parliament and Council Regulation 2018/1971, Art. 35(2), second subpara.)

   (see paragraphs 70, 72, 76, 77, 79, 81, 82)

Résumé

In the judgment in Spain v Commission (T‑370/19), delivered on 23 September 2020, the Court dismissed the action brought by the Kingdom of Spain (‘the applicant’), based on Article 263 TFEU and seeking annulment of the Commission decision which permitted the National Regulatory Authority of Kosovo to participate in the bodies of the Body of European Regulators for Electronic Communications (BEREC) and of the BEREC Office (‘the contested decision’). ( 1 )

BEREC, established by Regulation No 1211/2009, ( 2 ) was tasked with contributing to the development of the internal market for electronic communications networks and services and with improving its functioning. In accordance with that regulation, BEREC had to carry out its tasks independently and in cooperation with national regulatory authorities (‘NRAs’) and the European Commission. That regulation was repealed by Regulation 2018/1971, ( 3 ) Article 35 of which sets out arrangements for cooperation among BEREC, the bodies of the European Union, third countries and international organisations. Between 2001 and 2015, the European Union entered into stabilisation and association agreements with the countries of the Western Balkans (‘SAAs’) which contain specific provisions on cooperation in the field of electronic communications. That is particularly the case in respect of the Stabilisation and Association Agreement between the European Union and the European Atomic Energy Community, of the one part, and Kosovo, of the other part (‘the Kosovo SAA’). ( 4 ) On 18 March 2019, the Commission adopted six decisions, including the contested decision, on the participation of the NRA of the six countries of the Western Balkans in BEREC. Those decisions were adopted on the basis of Article 35(2) of Regulation 2018/1971 in particular.

As regards the Commission’s compliance with that provision, in so far as the applicant considers that Kosovo, which is not a sovereign State equipped with a state-like organisational structure, cannot be a ‘third country’, the Court found, first of all, that this concept of ‘third country’ is not defined, either in Regulation 2018/1971 or in other relevant EU regulations. The Court also noted that the TFEU uses the term ‘third country’, in particular in numerous provisions dealing with issues of external relations, as well as the term ‘third State’. Thus for the Court, the provisions of the TFEU which deal with ‘third countries’ are intended to allow the conclusion of international agreements with entities ‘other than States’, including territorial entities, under the flexible concept of ‘country’. In that regard, the Court took the view that the concept of ‘third country’, referred to in the TFEU in order to designate entities subject to international law which may have rights and obligations, cannot be overlaid with a different meaning, when that same concept appears in the text of secondary legislation such as Regulation 2018/1971. The Court found that the concept of ‘third country’, within the meaning of Article 35(2) of Regulation 2018/1971, is not the same as ‘third State’ but has a wider scope that goes beyond just sovereign States. Thus Kosovo is likely to fall within the scope of this concept of ‘third country’, without prejudice to the position of the European Union or of Member States on Kosovo’s status as an independent State.

Furthermore, the applicant claimed that the Commission had infringed that same provision, inasmuch as the applicant was of the view that no ‘agreement’ within the meaning of that provision existed, for the purposes of the participation of the NRA of Kosovo in BEREC. In particular, the applicant considered that the Kosovo SAA did not constitute such an agreement on participation in BEREC. On this point, the Court found that Article 35(2) of Regulation 2018/1971 made the participation of the NRA of third countries in the BEREC bodies subject to two conditions: first, the existence of an ‘agreement’ between the third country concerned and the European Union; and, secondly, that the agreement had been entered into ‘to that effect’. After having determined that the first of these conditions had been met – the Kosovo SAA undoubtedly being capable of constituting such an agreement, namely an international agreement made between two legal persons governed by public international law – the Court analysed the expression ‘to that effect’. In this regard, it stated that this expression demonstrated that the agreements concerned must contain provisions which serve as a basis for cooperation between the European Union and the third country concerned in the field in question, namely that of electronic communications. In this instance, the Court considered that Article 111 of the Kosovo SAA, in making express reference to ‘strengthen[ing]’ cooperation between the European Union and Kosovo, anticipated such close cooperation, in several ways. In particular, the Court specified that it is notably the participation, with limited rights attached, intended by Article 35(2) of Regulation 2018/1971 that corresponds with the close cooperation intended by the said Article 111 of the Kosovo SAA, without, however, amounting to an ‘integration’ of the NRA of Kosovo in the BEREC structure. The Court found that Article 111 of the Kosovo SAA constitutes an agreement ‘to that effect’, within the meaning of Article 35(2) of Regulation 2018/1971.

Lastly, the applicant claimed, in essence, that the Commission had infringed Article 35(2) of Regulation 2018/1971, in that it had, in the contested decision, unilaterally set ‘working arrangements’, within the meaning of that provision, for the purposes of the participation of the NRA of Kosovo in the BEREC bodies. In its opinion, those stringent working arrangements should have been set out in the actual agreements for participation in BEREC, so the Commission, in adopting the contested decision, had acted without legal basis. First, the Court stated that the use in that provision of the term ‘relevant provisions [of the] agreements’, accompanied by the word ‘under’, intended to convey that the adoption of the ‘working arrangements’ must be implemented ‘in accordance with’ the provisions of those participation agreements. As a consequence, it found that it is not legally necessary to make the NRA of a third country’s ‘openness to participation’ subject to specific authorisation set out in an international agreement. Secondly, as regards the Commission’s powers, the Court noted that, since neither Regulation 2018/1971 nor any other EU regulation has expressly granted, either to the BEREC Office or to any other body, the competence to establish working arrangements applicable to the participation of the NRA of third countries, that competence rests with the Commission. Finally, the Court found that Article 17 TEU, on which, inter alia, the contested decision is based, constitutes a sufficient legal basis, a finding not called into question by the fact that Article 17 TEU is a general provision.

Accordingly the Court held, first, that the Commission had jurisdiction, in the contested decision, to prescribe unilaterally the ‘working arrangements’ applicable to the participation of the third-country NRA in BEREC, as intended by the second subparagraph of Article 35(2) of Regulation 2018/1971. Secondly, it dismissed the claim made against the Commission that that decision had no legal basis.

( 1 ) Commission Decision of 18 March 2019 on the participation of the National Regulatory Authority of Kosovo in the Body of European Regulators for Electronic Communications (OJ 2019 C 115, p. 26).

( 2 ) Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the BEREC Office (OJ 2009 L 337, p. 1).

( 3 ) 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 2018 L 321, p. 1).

( 4 ) OJ 2016 L 71, p. 3.