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COMMUNICATIONS
«.STRATEGIES
No. 64, 4th Q. 2006
annulment of their decisions. It is important to appreciate why national courts
ended up annulling NRA decisions on formal grounds. On the Continent, a
number of national legal systems do not readily admit that independent
authorities be given wide, discretionary powers, usually for reasons of a
constitutional nature. The primacy of politics dictates that major decisions
must be made by, or under the authority of, elected officials, although it has
been shown that traditional constitutional principles are difficult to reconcile
with the realities of regulation in the electronic communications sector and
the decision chain model. Many courts felt uncomfortable with the onset of
independent regulatory authorities and hence strictly controlled competence
issues. Article 4 attempts to address this problem by stipulating that
Community law requires a control of NRA decisions that goes beyond
procedure, the effectiveness of control being of ever greater importance
considering the enhanced position of NRAs under EC communications law.
To recall, the aim behind Article 4 is to bring about effective judicial review.
This aim is to be achieved by broadening the breadth of judicial review to
encompass procedure and substance. This is evident from inter alia the
German, French and Dutch language versions of the provision which speak
of "Ümstanden des Falles"; "le fond de l'affaire"; and "de feiten van de
zaak" 41. The English version speaks of "merits". English law operates
according to a fundamental distinction between the role of courts on appeal
and the role of courts on review 42. Judicial review attaches to the procedure
according to which the decision was arrived at, which includes scrutiny of the
contested decision for errors of fact and law 43. On appeal, conversely, the
correctness of the decision as such is under question, and courts are more
interventionist. In English law, consideration of the merits is only possible in
appeal. By mandating a review of the merits, Community law thus requires a
full appeal of Ofcom decisions. In other words, where the aim of Article 4
was to dictate the breadth of review, in response to undesirable behaviour
on the part of Continental courts, it impacts on the depth of review in
Common law courts, with the concomitant danger that the appeal body might
indeed develop into the shadow regulator feared by Council 44.
41 The Dutch translation is arguably too narrow; substance involves more than looking at the
facts of the case at hand.
42 Kemper Reinsurance Company v Minister of Finance [2001] 1 AC 1 at 14.
43 The test of judicial review is that first set out in Associated Provincial Picture Houses v
Wednesbury Corporation [1947] 2 All ER 680, and now summarized by Lord Diplock in GCHQ
(n 31) to encompass illegality (unlawfulness), irrationality (unreasonableness) and procedural
impropriety (unfairness).
44 Indeed, in the context of competition law, the CAT when dealing with appeals against
decisions by the OFT has not shown any great deference, for example, Institute of Indepenent