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proportionality and legality of NRA decisions under Article 7 28. In practice,
the Commission instruments are thus highly influential and it would seem
particularly apposite that the Commission should be accountable for them.
Secondly, the ERG is developing as an important institutional player,
whose actions also have considerable ramifications for NRA decisions 29. It
is likely that these documents will be followed by NRAs in individual cases,
for the simple reason that NRAs (as ERG members) have been actively
involved in the drafting and adoption of these documents. Moreover, the very
purpose of ERG Common Positions is to coordinate decision-making
practices across the European Union 30. Accordingly, while an undertaking
faced with an adverse NRA decision can challenge that decision before a
national court, its ability to do so will be hampered if the NRA can hide
behind an ERG documents. Some form of accountability mechanism -
judicial review or otherwise - for ERG documents would thus be
advisable 31.
Finally, the Commission "letters of comment" issued pursuant to Article
7(3) of Directive 2002/21, its "serious doubts" letters and veto decisions
pursuant to Article 7(4) all circumscribe NRA discretion in the decision-
making process. NRAs are bound to heed the latter, while they are well-
28 Para 7. Currently, the phraseology of Article 7(4) is also wide enough to accommodate a
Commission veto for the (sole) reason of failure to follow the Guidelines.
29 Examples of ERG documents include Common Positions on remedies (ERG (03)30, now
replaced by ERG (06)33), wholesale international roaming (ERG (05) 42 and ERG (05)20
Rev1), wholesale bitstream access (ERG (03)33Rev1 and ERG (03) Rev2) and accounting
separation (ERG (05) 29). In addition to ERG Common Statements, there are also ERG
Reports which allow NRAs to engage in benchmarking, e.g. the Report on Broadband market
competition, ERG (05)23, Report on Transparency of retail prices, ERG (05) 52, the Report on
Experiences with Market Definition, Market Analysis and Applied remedies, ERG (05)51 and the
Public Mobile Termination Rates Benchmark ERG (06) 24.
30 Compare in this respect also the wording of Article 7(2) of the Framework Directive, stating
that in order to ensure the consistent application of the 2003 Directives, NRAs and the
Commission shall "seek to agree on the type of instruments and remedies best suited to
address particular types of situations in the market place".
31 If it would prove unpracticable to subject ERG documents to judicial review, an alternative
option would be to open the ERG procedures and make them more transparent. The model of
the NPRM under the US Administrative Procedure Act (APA) could be used by analogy. The
ERG would then issue a notice that it intends to deal with a given issue, setting out what the
points to be decided are, what its options are and which information it would like to obtain from
market parties and other participants in the procedure. The ERG would then build up a file,
perhaps conduct hearings, and then reach a conclusion, in which it would address the
submissions received. The U.S. procedure can be branded monstrous and unwieldy, if one
looks at the amount of paperwork and resources that go into it, but it does force the authority to
listen to observations and engage them in its decision. In the absence of judicial review, this
may be the best safeguard.