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

P. LAROUCHE & M. de VISSER

NRAs appeared to have made the best choice for its jurisdiction.
Discussions would have ensued within and outside of the ERG, with some
benchmarking and other similar exercises, until some best practice(s) finally
emerged. NRAs from larger jurisdictions would typically have refrained from
maverick behaviour, given that the gains to be achieved for them would have
been dwarfed by the risk of losses in case regulatory choices turned out to
be inappropriate. They would have moved at a later point, and their
decisions would most likely have established what the best practice was
found to be.

Instead, we have witnessed the following since 2003. Typically, an NRA
from a large jurisdiction takes the lead in conducting market assessments
and deciding on remedies. Historically, this role fell to the British Ofcom (and
its predecessor Oftel), but it appears that other NRAs, in particular the
French ARCEP, are also assuming this role nowadays. The Commission is
closely involved with this NRA, and will endorse its approach. Subsequently,
in its Article 7 comments on draft measures presented by other NRAs, the
Commission will stick to the line set out in the first major case, all the more
so if it considers that it must achieve "consistency" and "coherence" across
the EU. As a result, NRAs from smaller jurisdictions are prevented from
engaging in maverick behaviour. Similarly, NRAs - from larger or smaller
jurisdictions - that come late with their draft decision will have little if any
room to stray from the "consensus".

"Regulatory competition" has thus failed to emerge since 2003. That
outcome can be explained by historical factors. Ofcom (then Oftel) has
always enjoyed a leadership status since its inception in 1981; perhaps the
Commission and NRAs have been conditioned to follow the lead from one of
the larger jurisdictions and cannot shake off the habit. That outcome can
also be explained, however, by the Commission's use of a
"consistency/coherency" standard in its Article 7 practice.

■ Accountability, judicial review
and the role of national courts

The prime mechanism to hold authorities to account in the current EC
electronic communications framework is judicial review by national courts, as
provided for in Article 4 of the Framework Directive. The same
considerations - including subsidiarity - that dictate that NRAs must have

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