Independence, accountability and perceived quality of regulators / Pierre Larouche

Public ISBD Titre : Independence, accountability and perceived quality of regulators Type de document : document électronique Auteurs : Pierre Larouche, Auteur ; Chris Hanretty, Auteur ; Andreas Reindl, Auteur Editeur : Bruxelles : Centre on Regulation in Europe (CERRE) Année de publication : 2012 Importance : 95 p. Format : Pdf Langues : Anglais Catégories : MEDIAS Tags : régulation  médias Index. décimale : 302.234 Cinéma, radio, télévision (média) Résumé : "A specific EU model for national regulatory authorities (NRAs) has evolved in the course of the liberalization processes in network industries (electronic communications, energy and others). It rests on two broad lines: NRAs are independent and accountable. The CERRE Report on Independence and Accountability of national regulatory authorities (NRAs) provides empirical backing for that model, using a sample of NRAs from three sectors (energy, telecommunications and rail) plus the national competition authorities, and five member states (Belgium, Netherlands, France, Germany and the United Kingdom). In their report, CERRE researchers compile an index of independence, towards market parties and most importantly towards the legislative and executive powers. They also develop a new index of accountability, comprising the main elements that define accountability towards market parties, the legislative and executive powers, the European Commission, the courts and peers. These two indexes are then analysed against an index of perceived quality of the work of NRAs." Note de contenu : Table des matières abrégée : 1. Background 2. Independence 3. Accountability 4. Perceived Quality 5. Empirical links between independence, accountability and perceived quality 6. Conclusions and policy recommendations Independence, accountability and perceived quality of regulators [document électronique] / Pierre Larouche, Auteur ; Chris Hanretty, Auteur ; Andreas Reindl, Auteur . - Bruxelles (42 rue de l'Industrie - Bte 6, 1040) : Centre on Regulation in Europe (CERRE), 2012 . - 95 p. ; Pdf. Langues : Anglais Catégories : MEDIAS Tags : régulation  médias Index. décimale : 302.234 Cinéma, radio, télévision (média) Résumé : "A specific EU model for national regulatory authorities (NRAs) has evolved in the course of the liberalization processes in network industries (electronic communications, energy and others). It rests on two broad lines: NRAs are independent and accountable. The CERRE Report on Independence and Accountability of national regulatory authorities (NRAs) provides empirical backing for that model, using a sample of NRAs from three sectors (energy, telecommunications and rail) plus the national competition authorities, and five member states (Belgium, Netherlands, France, Germany and the United Kingdom). In their report, CERRE researchers compile an index of independence, towards market parties and most importantly towards the legislative and executive powers. They also develop a new index of accountability, comprising the main elements that define accountability towards market parties, the legislative and executive powers, the European Commission, the courts and peers. These two indexes are then analysed against an index of perceived quality of the work of NRAs." Note de contenu : Table des matières abrégée : 1. Background 2. Independence 3. Accountability 4. Perceived Quality 5. Empirical links between independence, accountability and perceived quality 6. Conclusions and policy recommendations

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Enforcement and judicial review of decisions of national regulatory authorities. A CERRE study / Pierre Larouche 

Public ISBD Titre : Enforcement and judicial review of decisions of national regulatory authorities. A CERRE study Type de document : document électronique Auteurs : Pierre Larouche, Auteur ; Xavier Taton, Auteur Editeur : Bruxelles : Centre on Regulation in Europe (CERRE) Année de publication : 2011 Importance : 182 p. Format : Document électronique Langues : Anglais Catégories : DROIT : Droit européen Tags : régulation  Europe  rapport  législation  droit européen Index. décimale : 349.4 Droit européen Résumé : Présentation sur le site de l'éditeur : "While much attention is given at EU level to the design and operation of National Regulatory Authorities (NRAs), the enforcement and review of NRA decisions has been largely left to the Member States to organize. With this report, CERRE provides a comprehensive examination of Member State law and practice regarding the enforcement and review of NRA decisions. This report is based on a study of energy, electronic communications and rail regulation in Belgium, France, Germany, the Netherlands and the UK. We review EU and Member State legislation, and the case law of national review courts. We make recommendations based on the best practices we identified. In general, we found that that the harmonization of substantive law at EU level seems to exert a greater influence on Member State law and practice than the diversity of national procedural laws. Accordingly, the degree of divergence between the Member States under study is more limited than one might have expected at first sight. Furthermore, it is also apparent that Member States have by and large taken a horizontal approach to the design of enforcement and review regimes, since for any Member State, we observed that the solutions tend to converge as between sectors. As a starting point, the design of the enforcement and review of NRA decisions must find a balance between three policy objectives, namely the protection of the rights of market players and interested parties, the effectiveness of the regulatory regime and the efficiency of the enforcement and review process. Against that background, we studied 12 key issues. From our study, the following recommendations emerge as to the best practices for the enforcement and review of NRA decisions. - Enforcement of NRA decisions: It is preferable to give NRAs the power to impose penalties directly for failure to comply with their own decisions (as opposed to a power to act against breaches of the regulatory framework, which would comprise their own decisions). - Stay of NRA decisions during appeal proceedings: An appeal against an NRA decision should have no automatic or systematic suspensive effect, with the possible exception of appeals against NRA decisions ordering the payment of fines. As compared to the situation some years ago, concerns for the effectiveness of regulation, stemming from excessive use of stays of enforcement, seem to have abated. - Nature of review court: Member States should allocate the review of NRA decisions to a specialist court (or a specialist body within an existing court). We recommend a horizontal, cross-sector approach in designing the review regime, such that a single court would be responsible across the various sectors, in order to maximalise the chances of cross-fertilisation and synergies between sectors. - Standing and third-party intervention: Standing to appeal against an NRA decision should be granted to all parties who are affected by the decision, subject perhaps to a requirement that the party has participated in the proceedings before the NRA. Third parties whose interests are affected should be able to join review proceedings. The NRA itself should appear before the review court in order to defend its decision. As long as the review court has the ability to join related proceedings, the study shows that the conduct of proceedings has not been significantly affected by the presence of multiple parties. - Length of proceedings: In general, review proceedings take long: in observable cases, the average duration has been close to a year and a half. An EU-level benchmark norm on duration might be envisaged. Some Member States do not commit enough resources to the handling of the appeal proceedings; in particular, enough qualified judges should be available. - Confidential information and business secrets: That information is well protected in all Member States, although procedures vary. The best practice is to allow the review court to gain knowledge of the information, which is then shared with a restricted circle of counsel for the parties to the case, without being available to the parties themselves. Scope of review. Review courts should be entitled to review all factual, legal and policy issues, as long as the parties to the case brought these issues before the court. - Investigating powers: Since the NRA file is usually quite extensive and the parties provide the NRA with comprehensive submissions, review courts have not been using much of their current investigating powers in practice. There is no need to increase such powers. - Standard for review: All review courts should use the same standard for review, namely a full review of issues of law, a broad review of the errors of fact and a marginal review of the exercise of discretion by the NRA. - Formal or substantive analysis: If marginal review is the standard, where the NRA enjoys discretion, substantive analysis would best suit review proceedings. In any event, multiple-stage review (because a review of the substance would be pre-empted by a first stage of formal review) should be avoided. - EU-level coordination: Cross-fertilisation is lacking as between the various sectors and the various jurisdictions under study. A complete and coherent case-law database on NRA review should be established, and the various Member State courts discharging the review of NRA decisions should be regrouped in a European association, on the model of the Association of European Competition Law Judges. - Retroactive effect of remedies upon review: It is difficult to choose between the ex tunc and ex nunc models, i.e. to decide whether the remedies granted by review courts should have retroactive effect or not. On balance, leaving aside dogmatic considerations arising from one or the other national legal system, it would be preferable, from a pragmatic perspective, not to give retroactive effect to the remedies granted by the review court (be it quashing of the NRA decision or substitution of a new decision by the review court). It must be underlined that these questions are interrelated, so that for instance the risks linked with not giving retroactive effect to the remedies granted by the review court would be minimized by a shorter duration of review proceedings. Ultimately, even when the regime of enforcement and review of NRA decisions is optimally designed and operated, this is but one of the elements which contributes to the success of regulation. Other measures can be taken to increase the quality of NRA decisions ex ante (better procedures before the NRA, adequate resources, etc.), so as to reduce the need for review and thereby procure even greater improvements in the effectiveness of regulation." Source : http://www.cerre.eu/activities/studies (Consulté le 09/07/2012) En ligne : http://www.cerre.eu/studies/enforcement-and-judicial-review-decisions-nras Enforcement and judicial review of decisions of national regulatory authorities. A CERRE study [document électronique] / Pierre Larouche, Auteur ; Xavier Taton, Auteur . - Bruxelles (42 rue de l'Industrie - Bte 6, 1040) : Centre on Regulation in Europe (CERRE), 2011 . - 182 p. ; Document électronique. Langues : Anglais Catégories : DROIT : Droit européen Tags : régulation  Europe  rapport  législation  droit européen Index. décimale : 349.4 Droit européen Résumé : Présentation sur le site de l'éditeur : "While much attention is given at EU level to the design and operation of National Regulatory Authorities (NRAs), the enforcement and review of NRA decisions has been largely left to the Member States to organize. With this report, CERRE provides a comprehensive examination of Member State law and practice regarding the enforcement and review of NRA decisions. This report is based on a study of energy, electronic communications and rail regulation in Belgium, France, Germany, the Netherlands and the UK. We review EU and Member State legislation, and the case law of national review courts. We make recommendations based on the best practices we identified. In general, we found that that the harmonization of substantive law at EU level seems to exert a greater influence on Member State law and practice than the diversity of national procedural laws. Accordingly, the degree of divergence between the Member States under study is more limited than one might have expected at first sight. Furthermore, it is also apparent that Member States have by and large taken a horizontal approach to the design of enforcement and review regimes, since for any Member State, we observed that the solutions tend to converge as between sectors. As a starting point, the design of the enforcement and review of NRA decisions must find a balance between three policy objectives, namely the protection of the rights of market players and interested parties, the effectiveness of the regulatory regime and the efficiency of the enforcement and review process. Against that background, we studied 12 key issues. From our study, the following recommendations emerge as to the best practices for the enforcement and review of NRA decisions. - Enforcement of NRA decisions: It is preferable to give NRAs the power to impose penalties directly for failure to comply with their own decisions (as opposed to a power to act against breaches of the regulatory framework, which would comprise their own decisions). - Stay of NRA decisions during appeal proceedings: An appeal against an NRA decision should have no automatic or systematic suspensive effect, with the possible exception of appeals against NRA decisions ordering the payment of fines. As compared to the situation some years ago, concerns for the effectiveness of regulation, stemming from excessive use of stays of enforcement, seem to have abated. - Nature of review court: Member States should allocate the review of NRA decisions to a specialist court (or a specialist body within an existing court). We recommend a horizontal, cross-sector approach in designing the review regime, such that a single court would be responsible across the various sectors, in order to maximalise the chances of cross-fertilisation and synergies between sectors. - Standing and third-party intervention: Standing to appeal against an NRA decision should be granted to all parties who are affected by the decision, subject perhaps to a requirement that the party has participated in the proceedings before the NRA. Third parties whose interests are affected should be able to join review proceedings. The NRA itself should appear before the review court in order to defend its decision. As long as the review court has the ability to join related proceedings, the study shows that the conduct of proceedings has not been significantly affected by the presence of multiple parties. - Length of proceedings: In general, review proceedings take long: in observable cases, the average duration has been close to a year and a half. An EU-level benchmark norm on duration might be envisaged. Some Member States do not commit enough resources to the handling of the appeal proceedings; in particular, enough qualified judges should be available. - Confidential information and business secrets: That information is well protected in all Member States, although procedures vary. The best practice is to allow the review court to gain knowledge of the information, which is then shared with a restricted circle of counsel for the parties to the case, without being available to the parties themselves. Scope of review. Review courts should be entitled to review all factual, legal and policy issues, as long as the parties to the case brought these issues before the court. - Investigating powers: Since the NRA file is usually quite extensive and the parties provide the NRA with comprehensive submissions, review courts have not been using much of their current investigating powers in practice. There is no need to increase such powers. - Standard for review: All review courts should use the same standard for review, namely a full review of issues of law, a broad review of the errors of fact and a marginal review of the exercise of discretion by the NRA. - Formal or substantive analysis: If marginal review is the standard, where the NRA enjoys discretion, substantive analysis would best suit review proceedings. In any event, multiple-stage review (because a review of the substance would be pre-empted by a first stage of formal review) should be avoided. - EU-level coordination: Cross-fertilisation is lacking as between the various sectors and the various jurisdictions under study. A complete and coherent case-law database on NRA review should be established, and the various Member State courts discharging the review of NRA decisions should be regrouped in a European association, on the model of the Association of European Competition Law Judges. - Retroactive effect of remedies upon review: It is difficult to choose between the ex tunc and ex nunc models, i.e. to decide whether the remedies granted by review courts should have retroactive effect or not. On balance, leaving aside dogmatic considerations arising from one or the other national legal system, it would be preferable, from a pragmatic perspective, not to give retroactive effect to the remedies granted by the review court (be it quashing of the NRA decision or substitution of a new decision by the review court). It must be underlined that these questions are interrelated, so that for instance the risks linked with not giving retroactive effect to the remedies granted by the review court would be minimized by a shorter duration of review proceedings. Ultimately, even when the regime of enforcement and review of NRA decisions is optimally designed and operated, this is but one of the elements which contributes to the success of regulation. Other measures can be taken to increase the quality of NRA decisions ex ante (better procedures before the NRA, adequate resources, etc.), so as to reduce the need for review and thereby procure even greater improvements in the effectiveness of regulation." Source : http://www.cerre.eu/activities/studies (Consulté le 09/07/2012) En ligne : http://www.cerre.eu/studies/enforcement-and-judicial-review-decisions-nras

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Media Pluralism: regulation or universal service obligation? / Martin Cave 

Public ISBD Titre : Media Pluralism: regulation or universal service obligation? Type de document : document électronique Auteurs : Martin Cave, Auteur ; Richard Collins, Auteur Editeur : Bruxelles : Centre on Regulation in Europe (CERRE) Année de publication : 2012 Importance : 21 p. Format : Document numérique Langues : Anglais Catégories : MEDIAS: COMMUNICATION & JOURNALISME - Aspects généraux Tags : pluralisme  médias  démocratie Index. décimale : 011.37 médias visuels et audiovisuels Résumé : "Concerns about media pluralism are pervasive, recurrent and remarkable. In Australia, media ownership regulation came under review in 2001 (updated in 2002, 2003 and 2006) and again in 2007 (Parliament of Australia 2001 and 2007). In Canada, the Canadian Radio-television and Telecommunications Commission (CRTC) promulgated new media ownership rules in 2008 (CRTC 2008). In October 2011, a European Commission Vice-President, Neelie Kroes, established a Committee on Freedom and Pluralism of the Media “to advise and provide recommendations for the respect, protection, support and promotion of media freedom and pluralism in Europe” (European Commission 2011) following extensive earlier studies and publications (eg Council of Europe 1994, European Commission 2007 and KUL 2009). In the USA, the Federal Communications Commission (FCC) began the latest of its four yearly reviews of media ownership in 2010 (FCC 2010), though in 2011 most of its earlier recommendations for liberalisation of media ownership in the USA were blocked by a judgement of the US Court of Appeals (see United States Court of Appeals for the ThirdCircuit 2011). In Germany, the Kommission zur Ermittlung der Konzentration im Medienbereich (see KEK 2010 and 2011) regulates commercial broadcasting to secure diversity of opinion (Meinungsvielfalt), and in the UK Jeremy Hunt, the Secretary of Statefor Culture, Media and Sport, announced that he has asked Ofcom to look at whether or not it is practical or advisable to set absolute limits on news market share; whether they believe a framework for measuring levels of plurality could or should include websites and if so which ones; and whether or how it should include the BBC (Hunt 2011)." (Source : http://cerre.eu/publications/media-pluralism-regulation-or-universal-service-obligation - Consulté le 07/01/2013) En ligne : http://cerre.eu/sites/default/files/mediapluralismejc_2081211.pdf Media Pluralism: regulation or universal service obligation? [document électronique] / Martin Cave, Auteur ; Richard Collins, Auteur . - Bruxelles (42 rue de l'Industrie - Bte 6, 1040) : Centre on Regulation in Europe (CERRE), 2012 . - 21 p. ; Document numérique. Langues : Anglais Catégories : MEDIAS: COMMUNICATION & JOURNALISME - Aspects généraux Tags : pluralisme  médias  démocratie Index. décimale : 011.37 médias visuels et audiovisuels Résumé : "Concerns about media pluralism are pervasive, recurrent and remarkable. In Australia, media ownership regulation came under review in 2001 (updated in 2002, 2003 and 2006) and again in 2007 (Parliament of Australia 2001 and 2007). In Canada, the Canadian Radio-television and Telecommunications Commission (CRTC) promulgated new media ownership rules in 2008 (CRTC 2008). In October 2011, a European Commission Vice-President, Neelie Kroes, established a Committee on Freedom and Pluralism of the Media “to advise and provide recommendations for the respect, protection, support and promotion of media freedom and pluralism in Europe” (European Commission 2011) following extensive earlier studies and publications (eg Council of Europe 1994, European Commission 2007 and KUL 2009). In the USA, the Federal Communications Commission (FCC) began the latest of its four yearly reviews of media ownership in 2010 (FCC 2010), though in 2011 most of its earlier recommendations for liberalisation of media ownership in the USA were blocked by a judgement of the US Court of Appeals (see United States Court of Appeals for the ThirdCircuit 2011). In Germany, the Kommission zur Ermittlung der Konzentration im Medienbereich (see KEK 2010 and 2011) regulates commercial broadcasting to secure diversity of opinion (Meinungsvielfalt), and in the UK Jeremy Hunt, the Secretary of Statefor Culture, Media and Sport, announced that he has asked Ofcom to look at whether or not it is practical or advisable to set absolute limits on news market share; whether they believe a framework for measuring levels of plurality could or should include websites and if so which ones; and whether or how it should include the BBC (Hunt 2011)." (Source : http://cerre.eu/publications/media-pluralism-regulation-or-universal-service-obligation - Consulté le 07/01/2013) En ligne : http://cerre.eu/sites/default/files/mediapluralismejc_2081211.pdf

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Public Service Obligations and Competition / Catherine Waddams 

Public ISBD Titre : Public Service Obligations and Competition Type de document : document électronique Auteurs : Catherine Waddams, Auteur ; Michael Harker, Auteur ; Antje Kreutzmann, Auteur Editeur : Bruxelles : Centre on Regulation in Europe (CERRE) Année de publication : 2013 Importance : 97 p. Format : Document numérique Langues : Anglais Catégories : ECONOMIE - Aspects Généraux Tags : service public  concurrence  régulation  Europe  étude  télécommunications Index. décimale : 330 Economie Résumé : "One objective of market liberalisation is to reduce average costs and prices, so that consumers as a whole, and the economy, will benefit. Markets are not, however, good at delivering benefits to vulnerable consumers, or protecting them from increasing prices. While universal service obligations are a useful way of managing the transition from a monopoly, as liberalisation increases they become increasingly difficult to sustain. This report outlines the current provision made for public service obligations across telecoms, postal service, electricity, gas and railways at the European level and as implemented in four EU countries (Belgium, France, Germany and the UK). The focus is on how universal service obligations – which often involve an element of cross-subsidy – may distort competition. The findings have been informed both by examining the experience in different EU countries and by responses to the survey delivered across the CERRE membership, which has provided valuable examples of how these obligations work in practice for different players and regulators across a number of sectors. The study’s main conclusions are: - Some distortion of competition and innovation may be inevitable, but the costs can be minimised by defining these obligations flexibly to reflect changing social needs and technological developments. - Where public service obligations are maintained, transparency is crucial, especially regarding principles and mechanisms for compensation. It is also important to ensure that they do not reduce the incentives for innovation or new infrastructure investment. - Given PSOs’ distortionary effect, their delivery should, where possible, be eventually transferred to those parts of the supply chain which are naturally monopolistic. This may however still prove problematic where there is vertical integration between monopoly and competitive elements of the supply chain." (Source : http://www.cerre.eu/publications/new-cerre-study-public-service-obligations-and-competition - Consulté le 06/05/2013) En ligne : http://www.cerre.eu/sites/default/files/130318_CERRE_PSOCompetition_Final.pdf Public Service Obligations and Competition [document électronique] / Catherine Waddams, Auteur ; Michael Harker, Auteur ; Antje Kreutzmann, Auteur . - Bruxelles (42 rue de l'Industrie - Bte 6, 1040) : Centre on Regulation in Europe (CERRE), 2013 . - 97 p. ; Document numérique. Langues : Anglais Catégories : ECONOMIE - Aspects Généraux Tags : service public  concurrence  régulation  Europe  étude  télécommunications Index. décimale : 330 Economie Résumé : "One objective of market liberalisation is to reduce average costs and prices, so that consumers as a whole, and the economy, will benefit. Markets are not, however, good at delivering benefits to vulnerable consumers, or protecting them from increasing prices. While universal service obligations are a useful way of managing the transition from a monopoly, as liberalisation increases they become increasingly difficult to sustain. This report outlines the current provision made for public service obligations across telecoms, postal service, electricity, gas and railways at the European level and as implemented in four EU countries (Belgium, France, Germany and the UK). The focus is on how universal service obligations – which often involve an element of cross-subsidy – may distort competition. The findings have been informed both by examining the experience in different EU countries and by responses to the survey delivered across the CERRE membership, which has provided valuable examples of how these obligations work in practice for different players and regulators across a number of sectors. The study’s main conclusions are: - Some distortion of competition and innovation may be inevitable, but the costs can be minimised by defining these obligations flexibly to reflect changing social needs and technological developments. - Where public service obligations are maintained, transparency is crucial, especially regarding principles and mechanisms for compensation. It is also important to ensure that they do not reduce the incentives for innovation or new infrastructure investment. - Given PSOs’ distortionary effect, their delivery should, where possible, be eventually transferred to those parts of the supply chain which are naturally monopolistic. This may however still prove problematic where there is vertical integration between monopoly and competitive elements of the supply chain." (Source : http://www.cerre.eu/publications/new-cerre-study-public-service-obligations-and-competition - Consulté le 06/05/2013) En ligne : http://www.cerre.eu/sites/default/files/130318_CERRE_PSOCompetition_Final.pdf

Market definition, market power and regulatory interaction in electronic communications markets / Martin Peitz 

Public ISBD Titre : Market definition, market power and regulatory interaction in electronic communications markets Type de document : document électronique Auteurs : Martin Peitz, Auteur ; Heike Scheitzer, Auteur ; Tommaso Valletti, Auteur Editeur : Bruxelles : Centre on Regulation in Europe (CERRE) Année de publication : 2014 Importance : 59 p Langues : Anglais Catégories : MEDIAS:AUDIOVISUEL:NUMERIQUE:Réseaux et infrastructures Tags : infrastructure  Europe  politique  droit  électronique Index. décimale : 621.382 Télécommunications Note de contenu : "This new study analyses the changes in the regulatory framework required to take into full account the presence of Over the Top (OTT) services and platform competition. Among its recommendations, the study asks regulators, competition authorities and policy makers to: • Take a fresh look at the market forces shaping the industry; • Rethink the approach to market definition and the assessment of market power; • Re-evaluate the role of regulation in electronic communications markets." Source : http://www.cerre.eu/publications/market-definition-market-power-and-regulatory-interaction-electronic-communications-mar (consulté le 29/10/2014) En ligne : http://www.cerre.eu/publications/market-definition-market-power-and-regulatory-i [...] Market definition, market power and regulatory interaction in electronic communications markets [document électronique] / Martin Peitz, Auteur ; Heike Scheitzer, Auteur ; Tommaso Valletti, Auteur . - Bruxelles (42 rue de l'Industrie - Bte 6, 1040) : Centre on Regulation in Europe (CERRE), 2014 . - 59 p. Langues : Anglais Catégories : MEDIAS:AUDIOVISUEL:NUMERIQUE:Réseaux et infrastructures Tags : infrastructure  Europe  politique  droit  électronique Index. décimale : 621.382 Télécommunications Note de contenu : "This new study analyses the changes in the regulatory framework required to take into full account the presence of Over the Top (OTT) services and platform competition. Among its recommendations, the study asks regulators, competition authorities and policy makers to: • Take a fresh look at the market forces shaping the industry; • Rethink the approach to market definition and the assessment of market power; • Re-evaluate the role of regulation in electronic communications markets." Source : http://www.cerre.eu/publications/market-definition-market-power-and-regulatory-interaction-electronic-communications-mar (consulté le 29/10/2014) En ligne : http://www.cerre.eu/publications/market-definition-market-power-and-regulatory-i [...]

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