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

The effectiveness of judicial review:

the non-suspensive effect of appeals

The last point to discuss in relation to judicial review concerns the
suspensive effect of appeals. In order to avoid the automatic suspension of
NRA decisions pending the outcome of judicial proceedings as practised in
many member states, a provision was included in the Framework Directive
to the effect that appeals do not automatically suspend the NRA decision
being challenged, although the competence of national courts to order
interim measures (i.e. suspension) remained unaffected. The provision has
not delivered the desired result. Suspension is still granted too readily in
some jurisdictions, with all the concomitant damaging effects for the
establishment of a competitive e-communications market.

The Commission proposal to amend Article 4 to specify the conditions
under which NRA decisions can be suspended pending appeal is therefore
to be welcomed.

■ Conclusion

The Commission proposals remain superficial. They leave key questions
and their implications outside of discussion and fail to address core issues.
Legislatures, policy-makers and lawyers should appreciate the uncertainty
that characterizes the electronic communications sector in devising the
institutional framework and relationships between the various players. In
particular, traditional conceptions on judicial review and accountability
cannot be applied without at least some degree of modification. Secondly,
the role of the Commission under Article 7 of Directive 2002/21 and the role
of national courts under Article 4 of that Directive need sorting out. The
Commission should be clearly conceived as party in the original decision-
making chain and not as a general review instance. Moreover, the threshold
which must be met before a veto can be pronounced should be more
stringently phrased to require proof of a serious prejudice to the internal
market or Community law. Amending the role of the Commission along
these lines should also allow for a greater degree of regulatory competition
amongst NRAs than is currently the case, which, in turn, is in keeping with
basic principles of EC law as subsidiarity and national procedural autonomy
and can contribute to a more prominent role for the ERG as regards peer
review and benchmarking. The role of national courts is squarely that of

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