The Triangular Relationship between the Commission, NRAs and National Courts Revisited



P. LAROUCHE & M. de VISSER

133


In its 2006 Review Communication, the Commission proposes to extend
its veto right, pursuant to Article 7(4) of Directive 2002/21, to the remedial
stage of NRA decisions as well 22. Of course, the need for a veto is not just
theoretical: on market definition and SMP assessment, the Commission has
already been called upon to issue five veto decisions to date, and exercise
informal pressure to ensure the withdrawal of thirteen further draft measures,
which otherwise would also have been subject to a veto decision. Extending
the veto power to cover remedies would thus not seem too drastic a
measure to be pursued. It could further contribute to reducing the tension
between the deregulatory goals of the 2003 framework and the increasing
amount of regulation: NRAs often impose the heavier remedies - a
Commission veto could perform a useful check as to whether these heavier
remedies are indeed the most appropriate ones.

However, the existence of a veto power potentially puts the Commission
in a hierarchically superior, controlling position
vis-à-vis NRAs. In the light of
the preceding paragraphs, the Commission proposal is problematic.
Remedies are where the NRA can best attune its decision to national
circumstances, which might not be properly appreciated by the Commission.
Furthermore, NRAs have sought to ensure a measure of coordination as
regards remedies, as well through the adoption of a Common Position on
Remedies in the context of the European Regulators Group (ERG) 23.
Extending the Commission veto power to remedies would be sensible only if
the role of the Commission and the standard used under Article 7 were also
clarified along the lines set out above. In any event, it might be preferable to
work instead with the ERG: the Common Position on Remedies can be
further improved, and the ERG should be encouraged to engage more
systematically in benchmarking and peer review.

Should there be "regulatory emulation" between NRAs, and if so, how?

In an earlier paper, one of the authors described how the current EC
electronic communications framework - then still being finalized - could
open the door to a form of "regulatory competition" between NRAs, which is
perhaps better described as "emulation" 24.

22 Supra, note 1 at 8-9.

23 Supra, note 15.

24 M. CAVE & P. LAROUCHE, European Communications at the Crossroads - Report of the
CEPS Working Party on electronic communications
(Brussels: CEPS, 2001) at 17-26.



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