BoR (13) 142
BEREC views on the
proposal for a Regulation “laying down measures to complete the European
ingle market for electronic communications and to achieve a Connected
As a key interlocutor entrusted in statute to promote regulatory coordination in the EU, BEREC is a trong supporter of targeted harmonisation and has been actively pursuing consistent regulatory approaches across the EU since the adoption of the BEREC Regulation in 2009. BEREC supports the Commission’s objectives of promoting the single market to the benefit of European consumers and the wider European economy, including in terms of growth and employment. It is sympathetic to calls to improve the operation of the digital single market, not least as new challenges have arisen ince the adoption of the 2009 Electronic Communication Framework.
As the legislators underlined in 2002 and 2009, the orienting principles of the current Framework are a pro-competitive market-driven approach and the need to provide regulatory certainty to the ector. As we try to find ways to deliver a better functioning single market we should not jeopardise this intent. BEREC is concerned that, taken as a whole, the provisions in the proposed Single Market Regulation risk creating unnecessary complexity and greater legal uncertainty, and could have a negative impact on both investment and competition, ultimately to the detriment of European consumers and the wider European economy.
BEREC and its members (the National Regulatory Authorities, or NRAs) are often at the forefront of the challenges facing the sector and are acutely aware of “regulatory gaps” that appear as the market evolves, and of the challenge that Europe faces in ensuring that its economy can compete effectively today and in the future.
However, BEREC believes that the Commission has not adequately demonstrated that its proposals would generate value in European communications markets, and is concerned that, overall, some of them could be counterproductive.
BEREC is of the view that the issues covered in the proposed Single Market Regulation are complex and sensitive, and therefore warrant comprehensive consultation and careful analysis. Such consultation and analysis have not taken place and we fear may not be possible during the remaining legislative term. In order to allow for a proper reflection on the impact of these complex wide-ranging proposals to ensure a future-proof sector regulatory environment, these issues could alternatively form part of the next review of the entire electronic communications framework, during the next parliamentary term.
BEREC remains committed to helping deliver real tangible benefits to the European communications ector, and to ensuring that the achievements of the 2009 EU Framework (notably around the promotion of competition and the consumer benefit in the EU) are not inadvertently undermined by undue haste in legislative reform.
However, should the European Parliament and Council believe that a new Single Market Regulation is necessary, BEREC will of course do everything it can to support their work.
BEREC has significant concerns about the evidence base and analysis behind the proposal. This is important, since an inaccurate diagnosis can lead to the wrong prescription. BEREC is also concerned that the proposals represent a significant shift in policy orientation, without proper consideration of its far-reaching consequences. BEREC also questions the feasibility and proportionality of some of the proposed measures (these are addressed in the following section).
The evidence base and the analysis
BEREC firmly believes Europe must continue to move forward and not fall behind, and that it must reform in order to adapt to changing times, ensuring the optimal conditions for its economy (and ultimately its citizens) in order to prosper. But BEREC cautions against insisting on a crisis allegedly caused by regulation and requiring immediate attention, just for the sake of ensuring legislative priority for the package, instead of taking the time to address these challenges comprehensively and coherently by launching a full review of the Framework. By way of illustration:
The analysis overlooks the fact that actual average broadband (download) speeds in the EU are ignificantly higher than in the US, across technologies: 36% faster (xDSL and FTTx) and 92% faster (cable).
The analysis does not refer to the dynamics of next generation networks, which are being rolled out by operators at an increasing pace. Figures on the progress of NGA deployment within Europe confirm this view. Within just one year, from April 2012 to May 2013, a number of European incumbents increased their NGA coverage considerably. For example, in the UK coverage increased from around 25% of households to almost 55%, in Denmark from under 40% to almost 60%, and in the Netherlands from just over 40% to almost 70%
The Commission claims Europe trails other regions on 4G deployment. However, despite variations across Member States, the main operators in the EU are investing heavily in very high peed mobile networks. It should also be borne in mind that the quality and coverage of 3G networks is higher in the EU than in the US, which has an important impact on the timing and pace of 4G deployment. In any event, Western Europe boasts more operational LTE networks than any other region.
The Commission cites market fragmentation in Europe, but the four main European mobile operators together already hold an EU market share of over 60%, with the top two having a combined subscriber base of 221 million. Their US counterparts (AT&T and Verizon) have a combined subscriber base of 206 million. Almost all fixed operators have a national footprint (as in the US), and it is not clear what scale benefits might arise from having a bigger footprint, since fixed costs are intrinsically linked to local networks. In any case, there is no sign that this has hindered either innovation or investment.
In terms of prices, European markets appear strongly competitive: fixed broadband tariffs in 16 countries in Europe (from the 23 reported by the OECD) are lower than those in the US.
Quality of Broadband Services in the EU” (A study prepared for the European Commission
DG Communications Networks, Content & Technology), SamKnows, March 2012.
NGA coverage, April 2012, Western European Countries (Source: Cullen International Research)
Analysis Mason [Analysis Mason, LTE Roundup_Sept. 2013.]
OECD Broadband Portal [http://www.oecd.org/sti/broadband/oecdbroadbandportal.htm]
While the proposals are presented as a means of completing the single market for electronic communications, the prospects of doing so rely on many other factors. These include, inter alia, the financial condition of operators, administrative and commercial law frameworks, existing tax regimes, labour costs, administrative law and actual market demand. BEREC believes that the impact of these additional factors has not been adequately considered, raising serious questions around the proportionality of the proposed regulatory intervention. Along the same lines, looking at the wider digital economy, BEREC notes that the overall output of the IT sector in Europe does not depend solely on the telecoms industry. Rather, it requires the development of sound relationships between telecoms operators and actors in neighbouring sectors (e.g. OTT providers, providers of operating platforms, equipment manufacturers).
Insufficient consideration has been given to the progress made towards regulatory harmonisation by BEREC under the enhanced regulatory cooperation mechanisms introduced during the last Framework review in 2009. Rather than build on the proven strengths of these mechanisms, these proposals would override them.
Insufficient consideration has been given to the EEA relevance of the proposals, resulting in a potentially un-harmonised implementation of the sector regulatory framework across the EEA. Indeed, in light of the single market goal, it would be very useful for the sector’s regulatory framework to enable BEREC to act as much as possible as a driver for harmonisation in Europe (including the EEA/EFTA), exploiting to its full potential the technical expertise of all NRAs, including those from the EEA/EFTA countries, which are also called upon to implement the framework.
BEREC’s overall concerns on the proposed measures
While BEREC shares the Commission’s high-level objectives, the unbalanced picture of the EU market situation and the unsound assessment of problems allegedly stemming from the current regulatory framework make for a set of proposals which BEREC considers to be disproportionate, and in some cases counterproductive to their stated aims. In addition, BEREC is concerned about the effects of certain fundamental shifts in policy direction underlying the proposals as a whole:
The proposals add a new regulatory objective (the promotion of the global competitiveness of the EU) to the current EU Framework’s goals of promoting competition and efficient investment. For example, the global competitiveness of the EU would need to be explicitly considered when determining whether a market should be subject to ex ante regulation (at the national level). While competitiveness and competition are not necessarily in contradiction and BEREC obviously shares the desire that the EU be globally competitive, shoe-horning this objective into the regulatory framework as is proposed risks regulatory conflict and introduces new grounds for legal challenge of regulatory decisions (increasing legal uncertainty, which ultimately undermines the EU’s global competitiveness). Indeed, such a new focus suggests that regulatory decisions should be also aimed at triggering market consolidation – in potential conflict with the fundamental purposes of the current framework (to promote competition). At the same time, a number of elements in the proposals seem to undermine the principle of effective infrastructure competition, which is embedded in the current regulatory framework.
The proposals represent a substantial shift in the balance of power between the Commission (on the one hand), and Members States, BEREC and NRAs (on the other hand), centralising the regulation of national markets without adequate justification.
BEREC is very concerned that the substantial achievements of the current EU Framework, in terms of both competition and consumer benefit across European markets, risk being undermined. This change in direction has been neither explained nor justified, nor have its consequences on the competitive dynamics of national markets and the consumer benefit been properly explored.
What follows is a brief analysis of some of the provisions of the Regulation, highlighting some of our particular concerns.
The proposed single EU notification and authorisation (Chapter II, Art 1-7)
BEREC fully supports the elimination of unreasonable obstacles to the provision of cross-border ervices across the EU. But while the idea of a single notification for European electronic communications providers might seem attractive, the proposals would not materially reduce operators’ administrative burden. On the contrary, the proposed single authorisation regime would be costly and burdensome for both operators and NRAs, causing significant delays in regulatory responsiveness, to the ultimate detriment of European consumers and operators.
In addition to these serious operational concerns, the proposals would have the effect of creating a eparate regime for operators conducting business in more than one EU Member State. Such a regime would undermine independent NRAs’ capacity to set the most appropriate remedies for the genuine market failures identified at a national level. In particular, the proposed introduction of a Commission veto over remedies addressed to European providers constitutes an unjustified shift in the balance of power between NRAs and the Commission. Also, the special set of regulatory powers and competencies entrusted to “home” NRAs with respect to national markets subject to the jurisdiction of other NRAs, introducing a national dimension in NRAs’ actions, risks hindering the technical nature of NRAs’ activity, with potential detriment to the single market goal. In particular:
Operational burden for operators and NRAs and enforcement issues - In the current process, operators only have to send a notification form to the NRA of the Member State(s) they are active in. Under the proposals, operators would have to notify their “home” NRA only, but would have to do so in the languages of all “host” NRAs where they had operations, which would not represent a real reduction in operators’ administrative burden. Furthermore, only the “home” NRA would have the ultimate power to suspend or withdraw a single authorisation. Finally, the potential for operators to call upon the “home” NRA in relation to disputes creates scope for lengthy dispute resolution processes and serious regulatory delays.
The concepts of “Home” and “Host” NRA and their associated implications risk undermining the goal of promoting the single market, as they hinder independent NRAs’ capacity to intervene in relation to all market players with the same regulatory approach. Indeed, they encourage the development of a special relationship between European providers and their “home” NRA, introducing the notion of a “home country” and creating a differentiated regulation between those operators which operate in one Member State and those which operate in several.
The proposed Commission veto power over remedies proposed by NRAs in the case of European providers is unjustified and detrimental – the evaluation of BEREC commissioned by the Commission highlighted how well the system of checks and balances under Article 7/7a has been operating over the last 3 years, yet the Commission now seeks the ability to override it. A Commission veto represents lost opportunities for regulatory innovation – which inevitably happens when one NRA tries something new, which is then shown to work, and goes on to be adopted by other NRAs and the Commission itself. This is how best practice is identified and disseminated – not by regulatory decree from above.
BEREC would propose instead
A (harmonised) template notification form, to be filed by operators in each country of operation could be introduced. Each NRA would produce it in its national language, but the form would otherwise be identical across Europe. The operators would enjoy the advantages of harmonised notification procedures across Europe, and the system would be simple and ensure predictability and legal certainty as there would be no need to differentiate between “home” and “host” NRAs. In addition, the Authorisation Directive could be amended to set maximum notification requirements.
2. Spectrum (Chapter III, Section I, Art 8-16)
Spectrum is not a core competence of BEREC, but spectrum is a critical input to many of the networks and services which NRAs regulate. BEREC has experience of the operation of Commission upervision processes and harmonisation measures, and many of its members are also spectrum authorities. On this basis, BEREC has identified several concerns regarding the proposals.
While BEREC understands the Commission’s concerns with the speed at which 4G frequencies have been made available in Europe, it also notes that the Commission already has powers to enforce the (binding) RSPP decision (which required those frequencies to be released by end 2012) and questions the Commission’s reluctance to use them.
While BEREC understands the Commission’s desire for better quality auction design, the bureaucratic and complex “Article 7 for spectrum” procedure for spectrum auctions would delay, rather than accelerate, the release of spectrum. In addition, the article 7 procedure was conceived to assess market analyses, i.e. technical regulatory decisions. In contrast, spectrum auction plans are of a political nature (as they lead to the sale of rights of use of national assets) and cannot properly be assessed by such a technical procedure.
The proposal to synchronise spectrum assignment procedures, to enable operators to bid for pectrum in all/many Member States at once, risks being ineffective: it could actually make it harder for operators to participate in several spectrum auctions at once, given the capital and resource commitment involved, and could also have the effect of giving large operators a competitive advantage.
BEREC would propose instead
BEREC believes that the proposed harmonisation objectives could be more effectively achieved by less intrusive, more focused and proportionate means within the current institutional set-up. Consideration should be given to the possibility of developing best practices around auction design (including around terms such as licence duration and conditions for spectrum sharing, about which the Commission has expressed concern), within the existing framework. BEREC has extensive experience of developing best practices and would be available to provide any support or assistance in this regard.
Harmonised European access products and ASQ (Chapter III, Section 2 Art 17-20)
By expressing a preference for a specific wholesale access remedy and prescribing its technical characteristics, the proposals ignore real differences in network roll-out, technology and commercial needs across Europe, and the fact that these are continually evolving over time. This approach risks causing serious regulatory and market failure, and represents an unwarranted shift in the current
balance of regulatory powers. This centralisation of decision-making interferes with NRAs’ ability to respond appropriately and proportionately to the (varied and evolving) needs of their respective national markets.
European virtual access products
Infrastructure-based competition is undermined – The preference for an active remedy as opposed to a passive one is at odds with the Commission’s objective to foster investment in the ector, and runs counter to the promotion of infrastructure-based competition, one of the key pillars of the current framework. The explicit preference for a particular active remedy limits individual NRAs’ ability to impose the most proportionate remedy to achieve infrastructurebased competition, taking account of national circumstances. In this respect, the Commission’s presumption that two networks represent sufficient competition in a given national market also constitutes a significant interference with NRAs’ ability to effectively regulate for competition in their national markets.
Consultation with operators is vital – Industry discussions generally precede the development of a national reference offer (detailing the technical and operational characteristics of the wholesale product). This is especially important when dealing with complex wholesale broadband access products, where the need for interoperability between operators is key. The detailed technical specifications of these European virtual access products should therefore be left to the well-established procedures at national level rather than being fixed in a regulation. Similarly, where demand for a harmonised wholesale product is clearly manifested to address the needs of European electronic communications providers, the specifications of such a product hould be developed by BEREC.
Prescribing detailed technical characteristics in a regulation is risky – One can easily get these wrong if they are defined without stakeholder consultation (as is currently foreseen, since they are proposed to be determined by the Commission). Also, a “one size fits all” wholesale product designed for a “European average” risks not meeting operators’ (and their customers’) needs or reflecting actual market conditions. Furthermore, technological change means they are at risk of becoming outdated. In turn, this risks holding individual national markets back from evolving and responding to the changing needs of operators and their customers.
ASQ (Assured Service Quality) product
Reciprocal obligations to provide ASQ are an unjustified regulatory burden – ASQ (based on parameters prescribed by the Commission) is intended to enable high-quality end-to-end connectivity services with “guaranteed” (and harmonised) quality of service (QoS) across networks. This has not historically been necessary, as technical innovations have improved quality of experience on the Internet. There is a risk that such regulatory interventions will hinder this innovation. Furthermore, the obligation to provide ASQ is a significant regulatory burden on operators without significant market power (SMP).
Mechanisms to introduce differentiated QoS products – QoS products have been available for more than a decade, and there is no legal or regulatory impediment to the development or provision of such products. Should there be demand for a common ASQ product, it should be developed by operators themselves in a market-driven process.
Including ASQ in this Regulation simply raises its profile, in favour of terminating operators who have long sought to charge for terminating traffic at guaranteed QoS, something that BEREC and
the Commission argued strongly against in 2012.
The implicit encouragement of ASQ also
contradicts provisions elsewhere in the regulation aimed at controlling the proliferation of pecialised services to ensure they do not impair the availability of best efforts internet access ervices (see section 3 below).
BEREC would propose instead
Since BEREC agrees that pan-European operators should have access to high-quality access products the following approach is proposed:
Should the need for a pan-European wholesale access product
be established, regulatory best practice approaches could be developed by BEREC. The advantage of this approach is that BEREC is able to reflect the actual needs of operators and business customers (building on NRAs’ practical experience and their expertise in developing Reference Offers), and to ensure the technical characteristics of those inputs are continually updated to reflect market developments and the evolving needs of business customers.
As for ASQ, there is no proven market failure, so there should be no new regulatory burden. The development of a common ASQ cross-network product should therefore be left to the industry in a market-driven process (towards which BEREC would be willing to contribute). Should any market failure be identified, then it should be tackled either through the review of the Recommendation on Relevant Markets (currently underway) or during a full review of the regulatory framework.
Net Neutrality (Chapter IV, Art 23-26)
BEREC appreciates the Commission’s attempts to come to grips with what is one of the most challenging new regulatory arenas, and is pleased to note that the approach introduced by the Commission is broadly in line with the principles and analysis recently developed by BEREC. However, the proposals leave certain policy directions and concepts (which are key to ensuring NRAs’ ability to act), unfocused and incomplete. At the same time, the proposals turn what has been a flexible and progressive regulatory regime (under the 2009 Framework) into a more rigid regulatory system. The combined effect of this is problematic, rendering the provisions difficult to implement.
The proposed conversion of an NRA duty to “promote end users’ rights to access content” into a hard-wired users’ right “to access” requires proper consideration as it raises concerns around enforceability, given the number of actors involved in the process. Any legal obligation imposed on ISPs should be based on a reasonable interpretation of the quality expected for the transportation of applications, i.e. a “best effort” performance for the IAS.
The definition of specialised services is incomplete - BEREC welcomes the Commission’s acknowledgment of the existence of specialised services alongside and distinct from internet access services (IAS). However, BEREC believes the relevant definition does not adequately capture their provision within closed networks and so risks hindering NRAs’ capacity to apply open Internet standards to IAS and to determine the acceptable relationship between IAS and pecialised services.
Rules for IAS – The definition of IAS provided in the proposals can overall be shared, as well as the use of common concepts to assess “reasonable traffic management”. BEREC believes that there should be more focus on end-users’ control and application-agnosticism as criteria to identify practices to be prohibited. Furthermore, the same set of criteria should be used to assess all types of differentiated contractual arrangements within IAS offers (e.g. not only blocking or throttling, but also premium conditions on volume and speeds for some specific
contents or applications).
NRAs’ enforcing role – The draft Regulation recognises the key role of NRAs to ensure the availability of IAS with sufficient quality. However, it does not explicitly provide an obligation for NRAs to set up measurement systems to identify degradation and to intervene in case this is detected with the most appropriate tool, including minimum quality requirements but also other regulatory remedies (such as penalties, end-to-end interoperability, dispute resolution, etc.).
NRAs and newer tools for end-users’ empowerment – Although the new tools introduced to protect transparency and switching guarantees are welcome in principle, BEREC holds that it is NRAs who would be best placed (and not the Commission, as in the draft Regulation) to ensure the comparability of methods to measure IAS performance, as this depends on national pecificities.
BEREC would propose instead
Given the complex and continually evolving world of Internet communications, in order to protect consumers and innovation in this field NRAs require a wide remit, and the possibility to refer to widereaching rules and helpful common concepts. BEREC is of the view that a more robust approach would be ensured by clarifying the extent of end-user freedom, by complementing the definition of pecialised services, by clarifying their relationship to Internet Access Services, and by broadening the list of criteria to assess forbidden practices. Furthermore, the central role of NRAs should be clearly recognised in developing approaches to comparing IAS performance and measurement systems to identify degradation.
5. Consumer protection (Chapters IV and V, Art 21-30)
The Commission proposes to replace the consumer protection provisions of the Universal Service Directive (USD, adopted in November 2009) with new provisions which in some cases go beyond those in the USD in both scope and level of detail/prescription.
BEREC is supportive of the Commission’s ambitions to increase the level of consumer protection across Europe. However, the Commission is proposing to upgrade the (minimum harmonisation) provisions adopted in 2009 to a “fully harmonised” mandatory framework, i.e. in effect prohibiting national governments and NRAs from maintaining or introducing any additional consumer protection provisions going forward (beyond what is in this proposal). As a result of this “one size fits all” approach, Member States and NRAs risk being deprived of the ability to respond to the changing needs of their respective markets and national consumers in the future. In some cases Member States and NRAs may even have to step back from measures already in force, reducing rather than enhancing consumer protection.
While the aims of the consumer protection provisions are generally positive, there are a number of areas where they may not be proportionate, or may have unintended consequences which ultimately go against the consumer interest. These concerns are reinforced given that the nature of the legal instrument removes the possibility of discretion at the national level to decide how best to implement the provisions.
BEREC would propose instead
The choice of legal instrument for these measures should be reconsidered. Maximum harmonisation undermines regulatory innovation and the development of best practice. The price of centralising policy-making in this rigid way is that Europe might be slower at responding to future sources of consumer harm posed by this fast-moving sector, and European consumers will be the losers. BEREC
believes it would be more appropriate to agree a (higher) minimum set of harmonised rules than currently exists, but preserving Member States’ right to legislate further at national level where necessary.
6. International Roaming (Chapter VI, Art 37)
BEREC has historically initiated and supported initiatives aimed at reducing roaming charges and recognises the central importance of roaming to the single market – indeed international roaming is the emblematic single market issue in the electronic communications sector. However, the proposed unpicking of a carefully negotiated regulation (Roaming III) within one year of its adoption and only a few months before the entry into force of a key provision (decoupling), substantially undermines regulatory certainty, the implementation of this key provision, and the very investment the Commission is seeking to promote. The concept of bilateral and multilateral roaming agreements is expected to benefit the larger MNOs with existing pan-EU footprints, to the detriment of the smaller MNOs and MVNOs. The resulting reduction in competitive pressure is the exact opposite of what Roaming III was trying to achieve. Furthermore, the proposals trade potential competition (through decoupling) for voluntary price reductions, providing no guarantee that consumers will benefit.
There is currently no regulatory or legal obstacle to the conclusion of bilateral or multilateral roaming agreements, yet they do not exist on a large scale, as roaming margins remain high. The proposed exemption from decoupling (and from resulting competition from alternative roaming providers) is therefore unlikely to provide sufficient incentive for MNOs to forsake those roaming revenues and offer “roam like at home” prices.
At the same time, the regulatory uncertainty induced by the proposal is already believed to have jeopardised investments in decoupling (which are intended to give consumers access to cheaper roaming) – the worst of both worlds for consumers.
There is nothing to prevent operators from increasing prices elsewhere to compensate for the “roam like at home” pricing – consumers might be no better off overall (yet operators will have obtained an exemption from competition through decoupling).
The proposals are complex and likely to be difficult to enforce, given the detailed staged coverage requirements for “roam like at home” agreements and the requirement for BEREC to define “reasonable use” in the context of roaming.
BEREC would propose instead
BEREC would prefer to see progress made towards the reduction of roaming charges to zero, as far as possible within the existing legal framework of Roaming III. It is already anticipated that a report on Roaming III will be tabled in 2016, and if legislators want to move faster than currently contemplated, then BEREC would recommend that they begin to develop proposals to eliminate roaming charges to take effect once current price caps expire.
BEREC Governance (Chapter VI, Art 38)
BEREC cannot support the Commission’s proposal to replace its chair (currently the head of a BEREC member NRA serving for a 1-year term within a 3-year troika system) with a professional chair erving for a 3-year term, chosen from a Commission shortlist and made an employee of the BEREC Office. Nor can BEREC support the reduction of its vice-chairs from 2 to 1, with the effective
elimination of the Troika/Board. This proposal, whether intentionally or not, represents a significant erosion of the independence of BEREC and the BEREC system.
The Commission points to the need for a longer-term strategic vision for BEREC. However, in its proposals, the Commission does not acknowledge that BEREC has already been actively developing a trategic vision over the last two years (e.g. through its medium-term strategy and annual strategic workshops).
The core of BEREC’s strength and value-add is its rootedness in its constituent NRAs. As an EC civil ervant, the chair would be “detached” from the Board of Regulators (BEREC’s decision-making body) and its constituent NRAs. The severing of the link between the NRAs and the BEREC leadership would risk undermining BEREC’s ability to speak and act independently (including, where necessary, to challenge the Commission).
This proposal is made despite an overall positive assessment of BEREC by the Commission’s consultants (PWC), and a positive assessment by the Commission itself in its staff working document published in early 2013, neither of which identified a problem warranting such governance reforms.
BEREC would propose instead
Given that the BEREC evaluation process is not yet completed (the European Parliament’s own report is set for adoption at the end of 2013), it is premature for the Commission to be making any proposals to amend the BEREC Regulation at this stage. The design of the BEREC system was carefully constructed by the European Parliament and Council to ensure its operational independence. Any changes to its governance should be approached with great caution.
17 October 2013
“Study on the Evaluation of BEREC and the BEREC Office” (A study prepared for the European Commission
DG Communications Networks, Content & Technology), PWC (2012) and Commission Staff Working document on the Evaluation Report of the Body of European Regulators for Electronic Communications (BEREC) and its office, SWD(2013) 152 final (23 April 2013);