The Triangular Relationship between the Commission, NRAs and National Courts Revisited

The Triangular Relationship
between the Commission, NRAs
and National Courts Revisited

Pierre LAROUCHE & Maartje de VISSER

Tilburg Law and Economics Centre (TILEC)

Abstract: In this article, the authors review the relationship between the Commission, the
national regulatory authorities (NRAs) and national courts in light of the Commission's
proposals for reform as laid out in the 2006 Review. They focus upon the Article 7 and
Article 4 procedures of Directive 2002/21. They conclude that the Commission proposals
leave key questions and their implications outside of discussion and fail to address core
issues such as the standard of assessment under Article 7, the accountability for
decisions taken upstream of the NRA, and the scope and depth of judicial review.

Key words: Institutional framework, Article 7 procedure, accountability and judicial review.

This article takes a fundamental look at the uneasy triangular
relationship between the Commission, the national regulatory
authorities (NRAs) and national courts in the light of the Commission
proposals for reform as laid out in the 2006 Review ¹. It focuses in particular
on two interrelated issues, namely the interaction between NRAs and the
Commission through the procedure of Article 7 of Directive 2002/21, and
review of NRA decisions by national courts, as set out in EC law in Article 4
of Directive 2002/21 ².

¹ Communication from the Commission to the Council, the European Parliament, the European
Ecnomic and Social Committee and the Committee of the Regions on the Review of the EU
Regulatory Framework for electronic communications networks and services COM (2006) 334
final, Brussels June 29th 2006 and the accompanying Commission Staff Working Document
SEC (2006) 816, Brussels June 28^th 2006.

² Directive 2002/21/EC of the European Parliament and of the Council of March 7^th 2002 on a
common regulatory framework for electronic communications networks and services
(Framework Directive) [2002] OJ L108/33

COMMUNICATIONS & STRATEGIES, no. 64, 4^th quarter 2006, p. 125.

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