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

At a more fundamental level, extending the Commission veto power - if
understood as a control of consistency and coherency across the EU - to
remedies would also shatter any remaining hope of seeing some form of
"regulatory emulation" emerge within the EU. Such emulation can occur as a
result of market pressures or more simply as a result of NRAs searching
around for better solutions by comparing and benchmarking with others.

Considering the inherent uncertainty surrounding most of the major
regulatory decisions, as outlined at the outset, some measure of "learning-
by-doing" seems quite appropriate, in order to avoid the risk of massive
failure if all authorities followed the same approach, imposed in a top-down
fashion. In addition, NRAs are closer to the playing field and can respond
more flexibly to new developments than when their action must be
coordinated at EC level. An important pre-condition for these positive effects
to occur, however, is that NRAs do take a European approach and engage
with the work of their peers.

Such a bottom-up emulation process is not necessarily indicated in all
cases. A trade-off must therefore be made between the advantages of
consistency and those of learning-by-doing via slight discrepancies. The
former are mostly static and the latter, dynamic. Obviously, where there is
broad consensus already (for example, in retail markets), it might be
preferable to insist more on consistency. Where a number of reasonable
options are open to the regulatory authority, on the other hand, allowing
some measure of divergence might be sensible to reduce the risk of failure,
even if it imposes some costs in the shorter-term. Experience should then
make it easier to discern which option is more adequate. At first sight, one
might think that such situations arise only with regard to remedies, but
emulation might also be useful for certain issues relating to market
definition ²⁵ and the assessment of SMP ²⁶.

Where relying on emulation was appropriate, we should have witnessed
NRAs from smaller jurisdictions attempting to innovate on regulation
("maverick" behaviour) in order to try to position their jurisdiction more
strongly in comparison to larger jurisdictions. Other NRAs would have kept a
close eye on these developments, in order to see which of the maverick

²⁵ For example, whether cable and DSL are in the same market for broadband access (Market
12) and transmission of broadcasting signals (Market 18).

²⁶ For example, the presence of collective dominance for mobile call origination (Market 15) or
the impact of countervailing buyer power on the SMP findings for smaller providers of call
termination (Markets 9 and 16).

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