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reasons, be loathe to surrender judicial scrutiny for decisions of national
state organs to a European body.
In the end, there is a clear danger of too much judicial review. Numerous
steps of the decision-making chain, which are, it must be remembered, all
part of one and the same translation of general policy into individual
decision, would be susceptible to judicial challenge. In the simplest terms,
this amounts to an unnecessary waste of resources. It also leads to
considerable uncertainty among market operators and authorities alike as it
will not be easy to determine when an NRA decision is final and must thus
be obeyed. The answer to this problem involves a trade-off between the
effectiveness of regulatory decisions (in the widest sense of the word) and
protection of individual rights. We have not yet been able to conduct a more
elaborate analysis of this problem with the help of economic tools. At this
point in time, we would tentatively argue that it might be preferrable to have
a single shot at in-depth judicial review and that this shot should occur where
the "hunch" is in the decision chain, i.e. where the transition between
general policy and (individual) decision takes place.
What should be the breadth and depth of judicial review?
This section seeks to address the problem with the interface between
Article 4 of the Framework Directive and national legal systems. Article 4
gives national courts the competence, and indeed imposes the obligation
upon them, to take the ‘merits of the case duly into account'. This phrase in
Article 4 is a reaction to case law where national courts used their
jurisdiction to annul NRA decisions on primarily formalistic grounds, which
was seen as counterproductive 40. They restrictively interpreted the
competences of NRAs and often found them wanting, leading to the
40 Cf. the following statements from the Commission Annual Implementation Reports: "In many
cases the courts are empowered to reach decisions on appeal only on the procedural aspects
of the case". [Communication from the Commission to the Council, the European Parliament,
the European Economic and Social Committee and the Committee of the Regions - Sixth
Report on the Implementation of the Telecommunications Regulatory Package Brussels,
December 7th 2000 COM (2000) 814 14] and "The practice under the existing framework has in
many cases been for the appeal bodies to examine process rather than substance." [Eight
Report from the Commission on the Implementation of the Telecommunications Regulatory
Package, Brussels 3.12.2002 COM (2002) 695 final 53]. This was the case notably in the
Netherlands, see, for example, M. ANDENAS & S. ZLEPTNIG, "Telecommunications Dispute
Resolution: Procedure and Effectiveness" [2004] 15, European Business Law Review, 477, 543
et seq.