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

COMMUNICATIONS

128                       ^STRATEGIES           No. 64, 4^th Q. 2006

■ NRAs and the Article 7 procedure

In line with subsidiarity and in order to heed the specificities of each EU
member state, the regulatory framework for electronic communications
entrusts NRAs with the main role in the implementation and enforcement of
the law. NRAs take the main regulatory decisions that shape this very
significant sector of the economy. Legally, NRAs must be independent from
the market players and in practice, they have typically been given a large
measure of independence from the government as well. Many felt that NRAs
could turn out to be overzealous or ineffectual, thereby undermining the
objectives of the broader regulatory reform. A number of mechanisms were
put in place in the regulatory framework to ward off that risk as far as
possible, including Article 7 of Directive 2002/21.

Article 7 is the cornerstone of the relationship between the Commission
and NRAs, and to a large extent between NRAs as well. Three years of
practical application have brought a number of issues to the fore with
respect to Article 7 procedure that warant attention. This section will discuss
the role of the NRA in the broader regulatory scheme (a) and, as the other
side of the coin, the role of the Commission in relation to NRA decisions (b).
In particular, what should be the standard for Commission review under
Article 7 (c)? Finally, how does, and how should, the Article 7 procedure
impact on relationships between NRA, notably as regards regulatory
competition between them (d)?

What is the role of NRAs in the electronic communications regulatory
framework?

The role of NRAs can be defined narrowly or broadly. The narrow
definition would limit the NRA to a fact-finding function. The NRA would then
deliver added value because of its closeness to the playing field, which
makes it better able to ascertain the situation accurately. Nevertheless, it
would essentially be "filling in the blanks" in order to complete processes
where the main decisions have been taken elsewhere. The broader
definition would also ascribe a policy-making function to the NRA. The NRA
would then not only engage in fact-finding, but also enjoy the ability to make
certain policy determinations, to the extent that the trade-offs made earlier in
the decision-making chain would need further refinement.

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