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Article 4 might thus go too far where it need not do, and not far enough
where it ought to. Its emphasis on the breadth of review ignores the fact that
even if a court duly takes the substance of the matter into account, that is
not the sole determinant of the outcome of the case. Equally, if not more
important, is the depth of review. As such, Article 4 does not guarantee that
Continental courts will amend their behaviour to develop into the effective
control instruments the Commission aims for 45. Furthermore, the effects
that Article 4 (presumably unintentionally) has on the depth of review in
Common Law countries might go beyond the effects it should have 46. Even
if a court is competent to inquire into the "merits" 47 of any particular case,
presumably it should only annul the decision under attack in "extreme"
cases, namely those where the decision under challenge is blatantly wrong
or inappropriate or where fundamental principles 48 or procedural rights 49
have not been respected. Article 6 of the Framework Directive provides for
extensive consultation with stakeholders. Market parties have thus had the
opportunity to communicate their point of view and convince the NRA. A
court should not subsequently re-do the NRA's work.
Insurance Brokers v Director General of Fair Trading 1002/2/1/01(IR) [2002] CAT 2; Aberdeen
Journals v Director General of Fair Trading 1009/1/1/02 [2003] CAT 11; BetterCare Group
Limited v Director General of Fair Trading 1006/2/1/01 [2002] CAT 7; Freeserve.com PLC v
Director General of Fair Trading 1007/2/3/02 [2003] CAT 5; IBA Health Limited v Office of Fair
Trading 1023/4/1/03 [2003] CAT 27; Hutchison 3G (UK) v Office of Communications
1047/3/3/04 [2005] CAT 39.
45 The Commission has also been having some difficulty in ensuring that all member states
indeed provide for national courts to take the merits of the case into account.
46 In principle, judicial review should be sufficient, especially given the intensity of judicial
review as applied by the CAT. Consider, for instance, Unichem Limited v Office of Fair Trading
1049/4/1/05 [2005] CAT 8, where the CAT favourably noted the similarity of the scope of judicial
review in merger cases by the UK and the Community Courts. The CAT has to review mergers
using judicial review principles.
47 Merit is often loosely used by non-common law lawyers to refer to the substance of the case,
as opposed to the procedure followed.
48 In EC communications law, examples would include the regulatory principles as set out by
the Commission in the 1999 Green Paper, such as non-discrimination, or the objectives listed in
Article 8 of the Framework Directive.
49 Such as audi alteram partem, where the authority is acting ultra vires or if the decision does
not contain a statement of reasons.