Arguments of the parties

32 By its first ground of appeal, the Kingdom of Spain claims that the General Court erred in law, in paragraph 36 of the judgment under appeal, in finding that the concept of ‘third country’, within the meaning of Article 35(2) of Regulation 2018/1971, has a broader scope than that of ‘third State’ as the former does not refer only to independent States. According to the Kingdom of Spain, that interpretation is not consistent with EU law or with international law.

33 The Kingdom of Spain criticises the General Court for having relied solely on the provisions of the FEU Treaty relating to ‘third countries’ to infer from this, without any further analysis, that those provisions are clearly intended to pave the way for the conclusion of international agreements with entities other than States. In so doing, the General Court did not identify anything in EU primary law or in international law that might differentiate the concept of ‘third country’ from that of ‘third State’.

34 According to the Kingdom of Spain, the concepts of ‘third country’ and ‘third State’ are equivalent, although they reflect different degrees of legal formality. Thus, from the point of view of international law, the terms ‘State’ and ‘country’ each evoke a separate dimension of the same subject and have their own sphere of application. The term ‘country’ is not used to refer to the status of the subject in international law but to its physical dimension. The two words might sometimes be used interchangeably, depending on the context.

35 The Kingdom of Spain maintains that the term ‘third country’, as used in the Treaties and in Regulation 2018/1971, does not have a broader or different meaning from that of the term ‘third State’. Any other interpretation would be likely to transform the concept of ‘third country’ into an autonomous category of EU law, with a meaning that differs from that which obtains in international law, while States are the key subjects of international relations.

36 The Commission rebuts those arguments as being unfounded and contends that the terms ‘third country’ and ‘third State’ are used differently in EU law. The Commission had been able to conclude international agreements with Kosovo as a ‘third country’, as referred to in Articles 212 and 216 to 218 TFEU, without recognising it as a State.

Findings of the Court

37 As a preliminary point, it should be noted that, in paragraphs 28 and 29 of the judgment under appeal, the General Court noted, first, that the concept of ‘third country’ is not defined in any way in Regulation 2018/1971 or in EU legislation on electronic communications, and, second, that the provisions of the FEU Treaty refer to both ‘third countries’ and ‘third States’, but that many provisions dealing with issues concerning external relations would use the term ‘third countries’. In particular, the General Court stated that Part Five of the FEU Treaty, relating to the European Union's external action, contains Title III on cooperation ‘with third countries’, and Title VI on relations ‘with international organisations and third countries’, thus reflecting the fact that international society is composed of various actors.

38 In that regard, it appears that it is not possible to determine the meaning of the concept of ‘third country’ referred to in Article 35(2) of Regulation 2018/1971 on the basis of a literal interpretation of the Treaties, in particular Part Five of the FEU Treaty.

39 First, the terms ‘third country’ and ‘third State’ appear interchangeably in many provisions of the EU and FEU Treaties, without there appearing to be any particular justification for the use of either term.

40 Second, according to settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision, or be made to override the other language versions.

41 In that regard, as the Advocate General noted in points 50 to 52 of her Opinion, not all the language versions of the EU and FEU Treaties use the terms ‘third State’ and ‘third country’ together. In the Estonian, Latvian, Polish and Slovenian versions of those Treaties, in particular, the expression ‘third State’ is used. Furthermore, where both terms are used in a single language version, their use is not always aligned with that of other language versions of those Treaties.

42 Provisions of EU law must be interpreted and applied uniformly in the light of the versions existing in all the languages of the European Union and, where there is any divergence between those various versions, the provision in question must be interpreted by reference to the general scheme and the purpose of the rules of which it forms part (see, to that effect, judgments of 26 January 2021, Hessischer Rundfunk, C‐422/19 and C‐423/19, EU:C:2021:63, paragraph 65 and the case-law cited, and of 14 July 2022, Italy and Comune di Milano v Council (Seat of the European Medicines Agency), C‐59/18 and C‐182/18, EU:C:2022:567, paragraph 67 and the case-law cited).

43 In the present case, the General Court concluded, in paragraph 30 of the judgment under appeal, that the provisions of the FEU Treaty relating to ‘third countries’ pave the way for the conclusion of international agreements with entities ‘other than States’. It is on that basis that the General Court held, in paragraph 35 of the judgment under appeal, that the concept of ‘third country’ used in EU primary law cannot be construed differently when the same concept appears in a provision of secondary legislation such as Article 35(2) of Regulation 2018/1971. It inferred from this, in paragraph 36 of the judgment under appeal, that the scope of the concept of ‘third country’, within the meaning of Article 35(2), goes beyond sovereign States alone.

44 The General Court established that premiss without taking into account the differences between the language versions of the EU and FEU Treaties, the wording of which does not support the conclusion that there is a difference in meaning between the words ‘third country’ and ‘third State’.

45 Were such a difference in meaning to be established, it would, moreover, be at odds with the fact, noted in paragraph 39 of the present judgment, that in several language versions of those Treaties only the words ‘third State’ are used.

46 The same applies with regard to Regulation 2018/1971. As the Advocate General noted in point 63 of her Opinion, the words ‘third country’ do not appear in all the language versions of that regulation. In the Bulgarian, Estonian, Latvian, Lithuanian, Polish and Slovenian versions, only the equivalent of the term ‘third State’ is used.

47 It follows from the foregoing that the General Court's reasoning was thus vitiated by an error of law.

48 However, it must be borne in mind that if the grounds of a decision of the General Court reveal an infringement of EU law, but the operative part of that decision can be seen to be well founded on other legal grounds, that infringement is not capable of leading to the annulment of that decision and a substitution of grounds must be made (judgment of 6 October 2020, Bank Refah Kargaran v Council, C‐134/19 P, EU:C:2020:793, paragraph 50 and the case-law cited).

49 In order to examine whether, in the present case, the operative part of the judgment under appeal is well founded on other legal grounds, it is necessary to examine whether the General Court was entitled to conclude, in paragraph 37 of the judgment under appeal, that the Commission did not infringe Article 35(2) of Regulation 2018/1971 by treating Kosovo in the same way as a ‘third country’ within the meaning of that provision.

50 In that regard, it should be noted that, for the purposes of ensuring the effectiveness of Article 35(2) of Regulation 2018/1971, a territorial entity situated outside the European Union which the European Union has not recognised as an independent State must be capable of being treated in the same way as a ‘third country’ within the meaning of that provision, while not infringing international law (see, to that effect, judgments of 24 November 1992, Poulsen and Diva Navigation, C‐286/90, EU:C:1992:453, paragraph 9, and of 5 April 2022, Commission v Council (International Maritime Organisation), C‐161/20, EU:C:2022:260, paragraph 32).

51 As regards Kosovo, in its advisory opinion of 22 July 2010, Accordance with international law of the unilateral declaration of independence in respect of Kosovo (ICJ Reports 2010, p. 403), the International Court of Justice concluded that the adoption of the Kosovo declaration of independence of 17 February 2008 did not violate general international law, United Nations Security Council resolution 1244 (1999) or the applicable constitutional framework.

52 That treatment of Kosovo as a third country does not affect the individual positions of the Member States as to whether Kosovo has the status of an independent State that is claimed by its authorities, as the first footnote to the decision at issue indicates.

53 It follows from the foregoing that, contrary to what is claimed by the Kingdom of Spain, Kosovo may be treated in the same way as a ‘third country’, within the meaning of Article 35(2) of Regulation 2018/1971, without infringing international law.

54 Furthermore, as regards the integration of ‘third countries’ into the participation scheme provided for in Article 35(2) of Regulation 2018/1971, it must be recalled that, according to the first subparagraph of that provision, the participation of the NRAs of such countries is subject to two cumulative conditions. The first concerns the existence of an ‘agreement’ entered into with the European Union and, the second, the fact that that agreement was entered into ‘to that effect’.

55 As the General Court noted in paragraph 32 of the judgment under appeal, the European Union has entered into several agreements with Kosovo, thus recognising its capacity to conclude such agreements. Those agreements include the Kosovo SAA, Article 111 of which, concerning electronic communications networks and services, provides that the cooperation established is primarily to focus on priority areas related to the EU acquis in that field, and that the parties are to strengthen that cooperation, with the ultimate objective of the adoption by Kosovo of that acquis five years after the entry into force of that agreement, paying particular attention to ensuring and strengthening the independence of the relevant regulatory authorities.

56 Furthermore, as is apparent from paragraph 49 of the judgment under appeal, Article 111 of the Kosovo SAA is similar, in its wording and context, to the provisions on strengthening cooperation in relation to electronic communications networks and services contained in other stabilisation and association agreements which the European Union has concluded with the countries of the Western Balkans that are candidates for accession, and on which the participation of the NRAs of those countries in the bodies of BEREC is based. While recital 34 of Regulation 2018/1971 refers in general terms to the agreements concluded with EEA/EFTA States and candidate countries, as the Advocate General observed in point 68 of her Opinion, the reference in that recital to candidate country status is made not in order to exclude from the scope of that cooperation countries which, like Kosovo, do not fall within those two categories, but only by way of illustration of agreements referred to in the first subparagraph of Article 35(2) of that regulation.

57 Consequently, the Kosovo SAA must also be regarded as having been concluded for the purposes of permitting such participation, within the meaning of that provision, in so far as Article 111 of that agreement expressly relates to the adoption of the EU acquis and to strengthening cooperation between the parties in the area of electronic communications networks and services.

58 That assessment cannot be called into question by the fact, emphasised by the Kingdom of Spain in the third ground of appeal, that Article 95 of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part (OJ 2004 L 84, p. 13), expressly provides for ‘cooperation within European structures’, which the General Court omitted to mention. The Kingdom of Spain submits, in that regard, that, unlike the aforementioned Article 95, Article 111 of the Kosovo SAA makes no reference to participation within an EU body such as BEREC.

59 However, such a difference is without prejudice to the fact, pointed out in paragraph 56 of the present judgment, that Article 111 of the Kosovo SAA is similar, in its wording and context, to the provisions on strengthening cooperation in relation to electronic communications networks and services contained in other stabilisation and association agreements which the European Union has concluded with the countries of the Western Balkans that are candidates for accession, on which the participation of the NRAs of those countries in the bodies of BEREC is based, agreements which, according to recital 34 of Regulation 2018/1971, were entered into ‘to that effect’, within the meaning of Article 35(2) of Regulation 2018/1971. Therefore, the fact that the terms of the Kosovo SAA are not identical to those of one of those agreements is irrelevant.

60 In addition, by referring, with regard to the participation of third-country authorities in BEREC, to the ‘agreements [entered into] with the Union to that effect’ and to the ‘relevant provisions of those agreements’, Article 35(2) of Regulation 2018/1971 makes such participation subject to the existence of agreements establishing a framework for sectoral cooperation between the European Union and those countries in respect of electronic communications networks and services, without, however, requiring those agreements to make express provision for such participation.

61 As regards the purpose of Regulation 2018/1971, it should be noted that, in accordance with its objective of cooperation, Article 35(2) of that regulation opens up the Board of Regulators, the working groups and the Management Board of BEREC to the participation of NRAs of third countries with primary responsibility in the field of electronic communications.

62 Thus, it is apparent, first, from recital 20 of that regulation that BEREC should be entitled to establish working arrangements with competent authorities of third countries with the goal of developing cooperative relationships and exchanging views on regulatory issues. Second, recital 34 of that regulation states that the participation of competent regulatory authorities of third countries in BEREC bodies is intended further to extend the consistent implementation of the regulatory framework for electronic communications.

63 Article 111 of the Kosovo SAA is intended to strengthen cooperation in the field of electronic communications networks and services so that Kosovo can adopt the EU acquis in that field.

64 Consequently, in the light of all of the above, the General Court did not err in law when it concluded, in paragraph 37 of the judgment under appeal, that, by finding in essence in the decision at issue that Kosovo was to be treated as a ‘third country’ within the meaning of Article 35(2) of Regulation 2018/1971, the Commission did not infringe that provision.

65 The first ground of appeal must therefore be rejected as being unfounded.

Arguments of the parties

66 By its second ground of appeal, the Kingdom of Spain submits that, in paragraph 33 of the judgment under appeal, the General Court misinterpreted the consequences of the lack of an EU position on the status of Kosovo under international law, thereby infringing the combined provisions of Article 111 of the Kosovo SAA and Article 35 of Regulation 2018/1971.

67 The Kingdom of Spain maintains that, in the absence of recognition of Kosovo as a State by all the Member States, the Commission was not entitled, through the adoption of the decision at issue, to authorise the participation of the NRA of Kosovo in the network of independent authorities established between States. Such a decision entails the recognition by the European Union of an authority of a territory, Kosovo, in respect of which the European Union has no common position other than recognition that it is a sui generis case, allowing each Member State to determine the type of relationship it wishes to establish with that territory. The decision at issue thus involves, according to the Kingdom of Spain, a rapprochement which could result in practice in an implicit de facto recognition of Kosovo's statehood and, therefore, in the imposition of that recognition on the Member States of the European Union.

68 The Commission contends that the second ground of appeal is new and does not identify the rule of law that has allegedly been infringed by the General Court. It argues that that ground of appeal is therefore inadmissible and, in any event, lacking any foundation in law.

Findings of the Court

69 First, as has been noted in paragraph 52 of the present judgment, the decision at issue expressly indicates, in an initial footnote, that the designation of Kosovo in the title of that decision ‘is without prejudice to positions on status, and is in line with [United Nations Security Council resolution 1244 (1999)] and the [International Court of Justice] Opinion on the Kosovo declaration of independence’. Similar statements were also included in the 17th recital and in Article 2 of the Kosovo SAA.

70 Second, it follows from the assessment in paragraphs 56 and 57 of the present judgment that, in the light of Article 111 of the Kosovo SAA, that agreement is intended, inter alia, to allow the participation of the NRA of Kosovo in the bodies of BEREC, which is consistent with the objective of cooperation with third- country NRAs pursued by Article 35(2) of Regulation 2018/1971. In that regard, the Kingdom of Spain does not dispute either the lawfulness of that agreement and that regulation or the fact that there is an NRA, within the meaning of that regulation, in Kosovo.

71 It follows that the Kingdom of Spain cannot reasonably claim that merely because the decision at issue establishes cooperation with the NRA of Kosovo by implementing the Kosovo SAA and Regulation 2018/1971, that decision infringes those acts and entails recognition of Kosovo as a third State.

72 Therefore, the Commission's adoption of the decision at issue cannot be interpreted as entailing the implicit recognition by the European Union of Kosovo's status as an independent State.

73 It follows that the Kingdom of Spain's criticism concerning paragraph 33 of the judgment under appeal is based on a false premiss. Accordingly, the second ground of appeal must be rejected as being in any event unfounded, and there is no need to examine the plea of inadmissibility raised by the Commission.

Arguments of the parties

74 By its third ground of appeal, the Kingdom of Spain submits that the General Court erred in law in finding, in paragraphs 49 to 53 of the judgment under appeal, that the objective set out in Article 111 of the Kosovo SAA, namely the adoption of the EU acquis in the area of electronic communications, entails the participation of Kosovo in BEREC within the meaning of Article 35(2) of Regulation 2018/1971.

75 In the first place, the Kingdom of Spain maintains that Kosovo's participation in an EU body such as BEREC is precluded in the absence of any express reference to that effect in the Kosovo SAA. It relies, in support of that claim, on the arguments summarised in paragraph 58 of the present judgment.

76 In the second place, the Kingdom of Spain submits that the use of the term ‘cooperation’ in Article 111 of the Kosovo SAA does not necessarily require the participation of the NRA of Kosovo in BEREC under Article 35(2) of Regulation 2018/1971. That participation is, in principle, reserved to the Member States, the task of that body being to develop EU rules on electronic communications and to adopt positions which affect the decisions of national and EU bodies. To accept Kosovo's participation in that body would be to allow that country to participate in the development of the EU's sectoral rules, rather than adopt the EU acquis, which would not be consistent with the objective of Article 35(2) of Regulation 2018/1971.

77 The Kingdom of Spain disputes the General Court's finding, in paragraph 53 of the judgment under appeal, that the participation envisaged in Article 35(2) of Regulation 2018/1971 corresponds to the close cooperation envisaged in Article 111 of the Kosovo SAA, but is not to be equated with any kind of ‘incorporation’ of the NRA of Kosovo into the structure of BEREC. That finding, for which no reasons are given, misconstrues Article 111 of the Kosovo SAA, which does not provide for ‘close’ cooperation.

78 In the third place, the Kingdom of Spain argues that the General Court erred in law in its interpretation of Article 35 of Regulation 2018/1971 by finding that the participation of the NRA of Kosovo in BEREC was possible despite the absence of a common EU position on Kosovo's status.

79 The Commission challenges those arguments.

Findings of the Court

80 As regards, first, the claim that Kosovo's participation in an EU body such as BEREC is precluded in the absence of any express reference to that effect in the Kosovo SAA, this has been addressed in paragraphs 59 and 60 of the present judgment.

81 Second, the claim that the General Court erred, in paragraph 53 of the judgment under appeal, by finding that the participation envisaged in Article 35(2) of Regulation 2018/1971 corresponds to the close cooperation envisaged in Article 111 of the Kosovo SAA cannot succeed.

82 In that regard, it should be noted that Article 35 of Regulation 2018/1971 envisages various degrees and forms of cooperation. Paragraph 1 of that provision thus provides that BEREC and the BEREC Office may, subject to prior approval by the Commission, establish working arrangements, including with the competent authorities of third countries, and makes clear that those arrangements are not to create legal obligations. That form of cooperation is therefore less ‘close’ than the participation of the NRAs of third countries in BEREC, which is referred to in paragraph 2 of that provision and which contributes, as is apparent from paragraph 63 of the present judgment, to the cooperation referred to in Article 111 of the Kosovo SAA, which seeks, in particular, to guarantee and strengthen the independence of the participating regulatory authorities.

83 However, contrary to what is claimed by the Kingdom of Spain, that form of cooperation between the European Union and Kosovo is not such that the participation of the NRA of that third country in BEREC bodies can be equated with that NRA's incorporation into that EU body.

84 As the Advocate General observed in points 97 and 98 of her Opinion, when the representatives of the NRA of Kosovo participate in the work of the Board of Regulators, working groups and the Management Board of BEREC, they express their opinions independently and transparently, in accordance with recitals 5 and 13, Article 3(3), Article 8(2) and Article 15(3) of Regulation 2018/1971. Furthermore, the influence of the representatives of NRAs of third countries within BEREC is limited by the second subparagraph of Article 35(2) of Regulation 2018/1971, since the possibility of granting them a right to vote is expressly excluded by that provision.

85 Moreover, contrary to the Kingdom of Spain's contention, the participation of the NRA of Kosovo in BEREC does not allow Kosovo to participate in the development of EU sectoral legislation on electronic communications. Although, under Article 4(4) of Regulation 2018/1971, the NRAs and the Commission are to ‘take the utmost account of any guideline, opinion, recommendation, common position and best practices adopted by BEREC’, those acts are not legally binding and do not form part of a process of developing EU legislation on electronic communications. BEREC's sole function is to act as a forum for cooperation among NRAs and between NRAs and the Commission with a view to ensuring the consistent implementation of the regulatory framework for that area, as is apparent from Article 3(2) of Regulation 2018/1971, read in the light of recital 5 of that regulation.

86 Lastly, as regards, third, the claim of infringement of Article 35(2) of Regulation 2018/1971 on account of the lack of a common EU position on Kosovo's status as a State, that claim must, for the same reasons as those set out in paragraphs 69 to 73 of the present judgment, be rejected.

87 It follows that, in ruling, in paragraphs 53 and 54 of the judgment under appeal, that the cooperation resulting from Article 111 of the Kosovo SAA corresponds to the arrangements for the cooperation envisaged in Article 35(2) of Regulation 2018/1971 and that, therefore, Article 111 of the Kosovo SAA constitutes an agreement ‘to that effect’ within the meaning of Article 35(2) of that regulation, the General Court did not err in law.

88 The third ground of appeal must therefore be rejected in its entirety as being unfounded.

Arguments of the parties

89 The fourth ground of appeal consists, in essence, of two parts. By the second part, the Kingdom of Spain disputes the Commission's power to adopt the decision at issue. That second part will be examined together with the fifth ground of appeal, with which it overlaps.

90 By the first part, the Kingdom of Spain submits that Article 111 of the Kosovo SAA does not constitute a sufficient legal basis for the adoption of the decision at issue. It disputes the General Court's finding, in paragraph 72 of the judgment under appeal, that the participation of a third country's NRA in BEREC does not require specific authorisation to have been established in an international agreement.

91 The Kingdom of Spain submits in that regard that the Kosovo SAA is a very general agreement which does not provide for the incorporation or participation of Kosovo in the structures of the European Union in any field, including the field of telecommunications. It recalls that Article 111 of the Kosovo SAA refers not to the participation of that country in an EU body, but to cooperation between the parties to that agreement.

92 The Commission contends that that line of argument is unfounded.

Findings of the Court

93 It is apparent from the grounds set out in paragraphs 56 to 64 and in paragraphs 80 to 87 of the present judgment that Article 111 of the Kosovo SAA constitutes an agreement ‘to that effect’ within the meaning of Article 35(2) of Regulation 2018/1971, and that Article 111 of the Kosovo SAA thus constitutes a sufficient legal basis for the participation of the NRA of Kosovo in the work of BEREC and the BEREC Office.

94 In particular, such an agreement does not necessarily have to contain detailed provisions relating to participation in BEREC within the meaning of Article 35(2) of that regulation in order for it to constitute a sufficient legal basis. The fact that certain association agreements with countries that are candidates for accession or certain decisions on the participation of NRAs of EFTA Member States contain more detailed provisions than those of Article 111 of the Kosovo SAA is irrelevant in that regard.

95 Accordingly, the first part of the fourth ground of appeal must be rejected as unfounded. The second part of the fourth ground of appeal, and the fifth ground of appeal Arguments of the parties

96 By the second part of the fourth ground of appeal, the Kingdom of Spain disputes the Commission's power to adopt the decision at issue. It contends that Kosovo's participation in BEREC cannot be established by a decision based on Article 17 TEU alone, since, first, the Kosovo SAA does not provide for that possibility and, second, the European Union does not have a common position on the status of Kosovo. The Kingdom of Spain disputes the General Court's finding, in paragraph 77 of the judgment under appeal, that since Regulation 2018/1971 did not expressly confer on BEREC the power to draw up working arrangements applying to the participation of NRAs of third countries, including the NRA of Kosovo, that power lies with the Commission, in accordance with Article 17 TEU.

97 Furthermore, the Kingdom of Spain maintains that Kosovo's participation in BEREC does not respect the powers of the Council of the European Union and Article 16 TEU, read in conjunction with Article 21(3) TEU. It argues that it is for the Council to assess whether the participation of the NRA of Kosovo in BEREC is in the interests of the European Union and to reconcile the interests involved.

98 In that regard, the Kingdom of Spain recalls that the choice of legal basis is of particular significance in so far as it enables the powers of each institution to be preserved (judgment of 25 October 2017, Commission v Council (WRC‐15), C‐687/15, EU:C:2017:803, paragraphs 49 and 50) and that the conclusion of an international agreement requires an assessment to be made of the European Union's interests in the context of its relations with the third country, and the divergent interests arising in those relations to be reconciled (judgment of 28 July 2016, Council v Commission, C‐660/13, EU:C:2016:616, paragraph 39).

99 By its fifth ground of appeal, the Kingdom of Spain claims that, in paragraphs 76 and 77 of the judgment under appeal, the General Court misinterpreted Article 35(2) of Regulation 2018/1971 when it held that the BEREC Office is a decentralised agency of the European Union and that the Commission must, by virtue of its executive functions and powers of external representation, assume all the powers which have not been expressly delegated to that agency, including the adoption of the working arrangements envisaged in that provision.

100 The Kingdom of Spain submits that the General Court was mistaken as to the nature and functions of BEREC, as is shown by the fact that paragraphs 76 and 77 of the judgment under appeal refer not to BEREC, the supreme decision-making body of which is the Board of Regulators, which does not have legal personality and is not a decentralised agency, but to the BEREC Office, a body whose role is to provide BEREC with administrative support.

101 The Kingdom of Spain states that the special status of BEREC derives from the obligation of independence of the regulators of which BEREC is composed. That obligation, combined with the fact that BEREC is not a decentralised agency, means that BEREC has powers that are broader than those of EU agencies.

102 Consequently, the Commission should confine itself to intervening in the cases expressly provided for by Regulation 2018/1971, as a literal, contextual and teleological interpretation of Article 35(2) of Regulation 2018/1971 shows. It therefore falls within the competence of BEREC and not of the Commission to adopt working arrangements.

103 The Commission contests those arguments. It contends that the second part of the fourth ground of appeal is, in part, manifestly inadmissible, since the argument relating to the Council's power to adopt the decision at issue, based on Article 16 TEU, was not raised at first instance. It further submits that the second part of the fourth ground of appeal is unfounded.

104 As regards the fifth ground of appeal, the Commission maintains that it follows from the wording of Article 35(2) of Regulation 2018/1971 that that provision does not determine which authority is competent to adopt working arrangements.

105 However, according to the Commission, powers which have not been expressly delegated to an agency of the European Union under a legislative act fall within the competence of the Commission. That interpretation is supported by the fact that Article 35(1) of Regulation 2018/1971 expressly delegates to BEREC and the BEREC Office the power to establish ‘working arrangements’, albeit subject to ‘prior approval by the Commission’. In addition, it follows from a systematic analysis of that regulation that prior approval by the Commission is necessary for cooperation under Article 35(1) of that regulation but is not mentioned in Article 35(2) thereof because the detailed rules for cooperation under the latter provision are defined by the Commission.

106 Moreover, BEREC's independence in the context of its functions does not preclude specific powers being conferred on the Commission with regard to relations with third countries.

Findings of the Court

107 As a preliminary point, it should be noted that the Kingdom of Spain's claims in relation to the second part of the fourth ground of appeal concern, in essence, the error of law allegedly made by the General Court in finding that Article 17 TEU constitutes a valid legal basis for adopting the decision at issue. Consequently, while it is true that the Kingdom of Spain did not invoke the competence of the Council at first instance, the fact remains that the line of argument developed in the second part of the fourth ground of appeal in relation to Article 16 TEU seeks to criticise the grounds set out in paragraphs 74 to 82 of the judgment under appeal concerning the Commission's competence under Article 17 TEU. That line of argument is thus linked to the argument put forward by the Kingdom of Spain on the basis of the latter provision in its action at first instance and is therefore admissible since it does not alter the subject matter of the proceedings before the General Court.

108 Regarding the substance, it should be recalled that the second subparagraph of Article 35(2) of Regulation 2018/1971 states that, ‘under the relevant provisions of [the agreements between the European Union and third countries which are referred to in the first subparagraph], working arrangements shall be developed specifying, in particular, the nature, extent and manner [of that participation] …, including provisions relating to participation in the initiatives carried out by BEREC, financial contributions and staff to the BEREC Office’.

109 In that regard, first, the General Court did not err in rejecting, in paragraph 70 of the judgment under appeal, the Kingdom of Spain's argument that it follows from the wording of the second subparagraph of Article 35(2) of Regulation 2018/1971 that only agreements providing for participation in BEREC should determine the detailed rules for establishing those ‘working arrangements’. Such an interpretation would be difficult to reconcile with the effectiveness of that provision, the very purpose of which is to provide for the adoption of those working arrangements. Moreover, as is apparent from paragraph 60 of the present judgment, the words ‘relevant provisions of [the] agreements’, preceded by the word ‘under’, mean that the adoption of the ‘working arrangements’ must be consistent with the provisions of the agreements establishing a framework for sectoral cooperation between the European Union and a third country and, in particular, with their ultimate objective which, in the case of Article 111 of the Kosovo SAA, is Kosovo's adoption of the EU acquis in the electronic communications sector.

110 That being so, the fact that the Kosovo SAA does not contain provisions for the conclusion of working arrangements under the second subparagraph of Article 35(2) of Regulation 2018/1971 cannot call into question, as the Kingdom of Spain claims, the finding that Article 111 of the Kosovo SAA constitutes a sufficient legal basis for allowing the NRA of Kosovo to participate in the work of BEREC and the BEREC Office, as is apparent from paragraphs 56 to 64 and 80 to 87 of the present judgment.

111 Second, it should be noted that although the second subparagraph of Article 35(2) of Regulation 2018/1971 provides for the establishment of ‘working arrangements’ to implement the participation of NRAs of third countries in the work of BEREC and the BEREC Office, it does not specify the procedure for adopting such arrangements.

112 In that regard, as the Advocate General observed in point 122 of her Opinion, the decision at issue could not be taken on the basis of Article 17 TEU by virtue of the Commission's executive or external representation functions. As regards, first, the executive functions, Article 290(1) and Article 291(2) TFEU require an express delegation of power to the Commission, which is lacking in the present case. As regards, second, functions relating to the European Union's external representation, it is sufficient to note that the establishment of ‘working arrangements’ to implement the participation of NRAs of third countries in the work of BEREC and the BEREC Office, within the meaning of the second subparagraph of Article 35(2) of Regulation 2018/1971, cannot be regarded as an act of external representation of the European Union. It is apparent from that provision that the purpose of such working arrangements is not that external representation as such, but specifying, in particular, the nature, extent and manner in which the regulatory authorities of third countries which have entered into agreements with the European Union to that effect will participate in the work of those EU bodies.

113 Furthermore, it is apparent from Article 9(i) and Article 20(6)(m) of Regulation 2018/1971, read in the light of recital 20 thereof, that that regulation determines which bodies may establish the working arrangements referred to in Article 35(2). First, recital 20 of that regulation states that BEREC should be entitled to establish working arrangements, in particular with the competent authorities of third countries. Second, Article 9(i) and Article 20(6)(m) of Regulation 2018/1971 specify that the Board of Regulators and the Director of the BEREC Office are together to authorise the conclusion of working arrangements with, inter alia, those authorities in accordance with Article 35 of that regulation.

114 It is, moreover, apparent from those provisions that the Commission is intended to exercise only a supervisory function in the context of the adoption of working arrangements. In that regard, recital 20 of that regulation states that the Commission ‘should ensure that the necessary working arrangements are consistent with Union policy and priorities, and that BEREC operates within its mandate and the existing institutional framework’.

115 In addition, with regard specifically to cooperation with third countries, Article 35(1) of Regulation 2018/1971 provides that BEREC and the BEREC Office may, subject to prior approval by the Commission, establish working arrangements.

116 Contrary to what the General Court held in paragraphs 77 and 78 of the judgment under appeal, the fact that Article 35(2) of that regulation does not include such details does not mean, in the light of the provisions of that regulation, that the power to establish the working arrangements applicable to the participation of NRAs of third countries, including the NRA of Kosovo, lies with the Commission.

117 As the Advocate General observed in points 130 to 132 of her Opinion, the fact that only Article 35(1) of Regulation 2018/1971 expressly confers on BEREC and the BEREC Office the power to establish working arrangements, subject to prior approval by the Commission, does not mean that that power is to be distributed differently under Article 35(2) of that regulation, referring to the special case of cooperation with third countries in the form of participation by the NRAs of the countries concerned in the Board of Regulators and working groups of BEREC and in the Management Board of the BEREC Office. On the contrary, the rule laid down in Article 35(1) of that regulation, according to which BEREC and the BEREC Office may conclude working arrangements, subject to prior approval by the Commission, must be interpreted as a general rule which also applies in the specific context of Article 35(2) of that regulation, in so far as the latter does not provide for any derogation from the principle laid down in Article 35(1) of Regulation 2018/1971.

118 As the Advocate General noted in point 133 of her Opinion, the fact that the participation in the work of BEREC and the BEREC Office provided for in Article 35(2) of Regulation 2018/1971 is a closer form of cooperation with the NRAs of third countries than that established under Article 35(1) of that regulation is not such as to call those findings into question. The participation of NRAs of third countries in BEREC was already confirmed by the agreement entered into to that effect as referred to in Article 35(2) of that regulation, namely, in this instance, Article 111 of the Kosovo SAA.

119 That interpretation is consistent with the system laid down by Regulation 2018/1971. In accordance with Article 3(3) and Article 8(1) of that regulation, read in the light of recitals 5 and 13 thereof, BEREC is to provide expertise and to act independently. According to recital 22 of that regulation, BEREC should be able to act in the interests of the European Union, independently from any external intervention, including political pressure or commercial interference. Likewise, as is apparent from recital 32 of that regulation, the BEREC Office has its own budget in order to guarantee its autonomy and independence. In that context, independence is also required of persons serving in BEREC, in particular the members of the Board of Regulators, as well as members of the Management Board and the Director of the BEREC Office, in accordance with Article 8(2), Article 16(1)(m), Article 20(3) and Article 42 of Regulation 2018/1971, read in the light of recitals 22, 25 and 29 thereof.

120 The fact that the Commission may unilaterally decide on certain working arrangements for participation in the work of BEREC and the BEREC Office, without their agreement, would not be compatible with BEREC's independence and would go beyond the supervisory function assigned to the Commission, in that context, by Regulation 2018/1971.

121 Consequently, by holding, in paragraph 77 of the judgment under appeal, that, since Regulation 2018/1971 did not expressly confer on the BEREC Office or any other body the power to draw up working arrangements applying to the participation of NRAs of third countries, including the NRA of Kosovo, that power lies with the Commission, the General Court failed to have regard both to the division of powers between, on the one hand, the Commission and, on the other hand, BEREC and the BEREC Office, and to the rules guaranteeing the independence of BEREC laid down by Regulation 2018/1971.

122 Finally, the objective of strengthening cooperation with the NRAs of third countries in the field of electronic communications networks and services pursued in particular by Article 35 of Regulation 2018/1971, requiring consultation with those third countries, supports the conclusion that the Commission cannot unilaterally adopt a decision establishing the working arrangements applying to the participation of those NRAs of third countries, contrary to what was held by the General Court in paragraph 82 of the judgment under appeal.

123 Subject to the Commission's prior approval, such arrangements should be agreed between BEREC and the BEREC Office, on the one hand, and the competent authorities of those third countries, on the other, and authorised jointly, as is apparent from Article 9(i) and Article 20(6)(m) of Regulation 2018/1971, by the Board of Regulators and the Director of the BEREC Office. The Commission cannot, therefore, have the power unilaterally to establish arrangements of that kind.

124 It follows that the General Court erred in law in finding, in paragraphs 77 and 82 of the judgment under appeal, that the power to draw up working arrangements applying to the participation of NRAs of third countries in BEREC, within the meaning of the second subparagraph of Article 35(2) of Regulation 2018/1971, lies unilaterally with the Commission under Article 17 TEU.

125 Nevertheless, in view of the considerations set out in paragraph 123 of the present judgment, the Kingdom of Spain's argument that the power to decide on the participation of the NRA of Kosovo in BEREC lies with the Council, subject to the Commission's approval, must be rejected.

126 In the light of the foregoing considerations, the second part of the fourth ground of appeal must be rejected as being unfounded. However, the fifth ground of appeal must be upheld and, consequently, the judgment under appeal must be set aside.

The action before the General Court

127 In accordance with the second sentence in the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.

128 That is the position here.

129 As stated in paragraph 22 of the present judgment, the Kingdom of Spain raised three pleas in law in support of its action at first instance.

130 In the context of its third plea in law at first instance, the Kingdom of Spain claims that the decision at issue infringes Article 35 of Regulation 2018/1971 in.so far as the Commission departed from the procedure established by that provision for the participation of NRAs of third countries in BEREC.

131 For the reasons stated in paragraphs 112 to 124 of the present judgment, the Commission did not have the power to adopt the decision at issue. Accordingly, that third plea must be upheld, without there being any need for the other pleas in law of the action at first instance to be examined.

132 In view of the above, the form of order sought by the Kingdom of Spain must be granted, and the decision at issue, annulled.