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COMMUNICATIONS
«.STRATEGIES
No. 64, 4th Q. 2006
advised to take the "serious doubts" letters into account in order to avoid a
veto. As for the letters of comment, the Commission sometimes points
therein quite precisely to weaker elements in the draft NRA decision 32.
In sum, there are four parts of the decision-making chain that should be
subject to some accountability mechanism (judicial review or otherwise):
Commission instruments (guidelines and recommendations); ERG output;
Commission comments under Article 7 of the Framework Directive and NRA
decisions. Given that only the latter are currently subject to judicial review,
there is at first sight an accountability deficit in the decision chain of EC
electronic communications regulation.
Who is best placed to carry out judicial review?
On the assumption that some form of judicial review might be the easiest
means of introducing accountability for the acts discussed above, several
institutions come into question.
At this juncture, given that only NRA decisions are actually subject to
judicial review, national courts are the natural forum and this much is
recognized in Article 4 of Directive 2002/21, giving them the competence to
decide on appeals against NRA decisions. However, national courts can
also be something of a ‘loose cannon' in the general scheme of EC law. The
current electronic communications framework does not at any point attempt
to induce national courts to see the EC dimension of regulation. There is
thus a risk that an NRA, even if acting suitably in line with the EC
consensus, can be overruled by a national court, if the latter's perspective
remains confined to the member state in question. This danger is all the
greater since EC electronic communications law is couched in directives, so
that the implementing national legislation often obscures the EC dimension.
This defect can be remedied, however. The EC perspective of national
32 As the experience with mobile origination in Ireland shows, the elements on which the
Commission expresses reservations can end up being those on which the decision falls before
national courts. There the Irish Communications Appeal Tribunal annulled the decisions of the
Irish NRA (ComReg) finding that Vodafone and O2 had collective dominance on the Irish
wholesale mobile access and origination market and imposing a series of remedies, Decision
No 08/05 of the Electronic Communications Appeal Tribunal in respect of Appeal Numbers
ECAP6/2005/03, 04, 05, 06, 07 and 08. Both decisions had been duly notified to the
Commission under Article 7(3) of Directive 2002/21.and although the Commission made
observations, it did not initiate the procedure of Article 7(4), Case IE/2004/121, DG Greffe
(2005) D/200269, Brussels January 20th 2005