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COMMUNICATIONS
«.STRATEGIES
No. 64, 4th Q. 2006
the list of acts that are covered by that Article 35. Judicial review would thus
require an amendment to the constituent decision for the ERG, providing for
the possibility of a judicial challenge before the ECJ 36. Even if these hurdles
are overcome, locus standi remains a problem. Under the current
interpretation of Article 230 EC, challenges to general acts by private parties
are not possible and individuals are, moreover, unlikely to succeed in
demonstrating the requisite individual and direct concern to be found
admissible 37. The undertaking to which the NRA decision now vetoed was
addressed might perhaps be able to claim standing applying the TWD case
law 38 per analogy. But competitors who have merely been involved in the
national procedure giving rise to the Commission decision will see their
challenge fail because of the inability to show ‘direct and individual concern'
under Article 230 EC 39.
A third option could be to conceive of the Commission as a judicial review
instance for NRA decisions. However, establishing the Commission as a
(general) review instance would be at odds with the purpose of the Article 7
procedure and fly in the face of well-established general principles of
Community law.
Finally, a European Communications Appeal Tribunal (ECAT) could be
created. The advantage of this option is that it would be possible to
concentrate all judicial review actions relating to EC communications law in a
single court. The ECAT could thus accumulate the requisite experience and
expertise to effectively dispose of judicial challenges. A single European
tribunal would moreover be intimately familiar with the European dimension
of the communications rules. This option is theoretically pleasing, but
disconnected from practical realities. Member states will, for constitutional
35 It is expressly provided in ERG Common Positions that they do not possess legally binding
effects and a perusal of the text of Article 230 EC makes clear that the Community Courts only
decide on the legality of binding acts.
36 This approach is taken with respect to the decisions of a number of European agencies.
37 Case 25/62 Plaumann and Co v Commission [1963] ECR 95; reaffirmed in Case C-50/00 P
Union de Pequenos Agricultores v Council [2002] ECR II-6677.
38 Case C-188/92 TWD Textilwerke Deggendorf GmbH v Bundesrepublik Deutschland [1994]
ECR I-833.
39 Admittedly, there is always the possibility of an indirect challenge pursuant to Article 234 EC.
However, this route is beset with problems. Firstly, it is uncertain as the market party will have
to wait for a negative - and challengeable - decision to be adopted by the NRA and then hope
that the national court where he challenges this decision will actually decide to send a
preliminary reference to the ECJ. Secondly, the preliminary reference procedure is cumbersome
and lengthy, making it particularly inappropriate for a sector as dynamic as e-communications.