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courts can be strengthened by informal measures, such as training courses
provided by the Commission, or an exchange programme for judges.
Furthermore, national courts could be given the express competence to ask
the Commission for information of a factual, legal or economic nature 33.
Finally, if national courts were required to notify their judgments relating to
electronic communications to the EC level, the Commission could then, as it
has done in EC competition law, compile an electronic database in which
national judges can access decisions by their counterparts on the same
issues they are grappling with.
National courts, however, are not suitable for judicial review of the other
three categories of documents. Under Community law, Commission soft-law
instruments as well as Commission comments pursuant to Article 7 cannot
be challenged before national courts. As far as ERG output is concerned,
national courts cannot truly be expected to engage in an examination of the
ERG output upon which the NRA decision is based. They might also feel
uneasy questioning a document that has been drawn up and endorsed by all
NRAs, as well as by the Commission.
For these three categories of documents where national courts appear
unsuitable, judicial review could be entrusted to the Court of Justice. The
ECJ (European Court of Justice) seems the natural forum for Commission
soft-law instruments and Article 7 comments and decisions. It also seems
better placed than a national court to entertain a challenge to ERG
documents, i.e. ‘final' documents that have been promulgated as such and
are expressly intended for ‘external' usage. The ECJ/CFI is used to review
economic policy matters and furthermore is best equipped to take the
European dimension of the ERG actions into account. However,
Commission recommendations - and a fortiori guidelines and other soft-law
instruments - seem immune from scrutiny: they are expressly excluded from
the ambit of Article 230 EC 34. As regards ERG documents, it must be noted
that the ERG is not a Community institution within the meaning of Article 230
EC; even if this were the case, the ERG output probably does not fall under
33 On the model of Article 15 of Regulation 1/2003 for competition law. While the comments
made by the Commission in the course of the Article 7 procedure will already be of considerable
assistance to national courts, it cannot be excluded that national courts require further
elaboration on the Commission’s thinking or want the Commission’s input in assessing how the
NRA has dealt with the Article 7 comments.
34 Of course, the ECJ could always find that a recommendation is in fact a decision without the
name, but this appears unlikely. It is interesting to note that the original proposal for the
Framework Directive provided for a decision on relevant markets and not a recommendation.