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

the primary responsibility for the implementation of the regulatory framework
in principle leave it to member states to devise the judicial structures within
which such decisions can be challenged. However, in electronic
communications regulation, the need for a proper judicial review mechanism
was felt strongly enough to warrant that a number of procedural rules be
fixed in EC law directly, at Article 4. The mechanisms of both Article 4 and
Article 7 offer a check on the considerable discretion and wide competences
of NRAs: Article 7 allows the Commission to safeguard certain interests
(internal market, Community law) in the course of the decision-making
procedure, while Article 4 calls upon national courts to ensure ex post overall
control of the finished end-product.

Accordingly, whilst accountability is the basic concern, this section will
take judicial review by national courts as a starting point, in order to discuss:
the interpretation of a ‘challengeable act' (a); the court or tribunal with
jurisdiction to review the challenged act (b); the proper breadth and depth of
judicial review (c); and finally, the effectiveness of judicial review (d).

For which acts should authorities be accountable?

The conventional view would suggest that since only NRA decisions at
the end of the chain actually affect the rights and obligations of individual
undertakings directly, accountability would be sufficiently ensured via judicial
review of these. This view, however, ignores the practical realities of
regulation in the electronic communications sector. NRA decisions are
greatly influenced by activities that take place earlier in the decision-making
chain.

Firstly, Commission recommendations and guidelines (hereinafter the
"Commission soft-law instruments") determine the scope and exercise of
NRA actions. Articles 14(2) and 15(3) of Directive 2002/21 expressly provide
that NRAs must take these measures into account when carrying out the
SMP exercise ²⁷. The Commission has indicated that the extent to which
NRAs have indeed done so is an important factor in the assessment of the

²⁷ See also Article 19 of Directive 2002/21, calling upon NRAs to take the utmost account of
recommendations issued under that legal basis. It should be noted that it is thus the Community
legislature obliging NRAs to take into account soft law instruments, adding considerable legal
force to this duty.

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