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



P. LAROUCHE & M. de VISSER

129


The EC electronic communications framework does not expressly choose
between these two models, but there are a number of significant indicia that
point towards the broader definition 8. Furthermore, the practice since 2003
shows that NRAs see themselves as endowed with policy-making functions
and actually engage in policy-making. At any rate, the NRAs acting
collectively in the ERG do deal with policy issues, which would imply that
they individually possess the power to deal with those issues.

What is the role of the Commission under the Article 7 procedure?

Here there are also, broadly speaking, two options. On the one hand, the
Commission could be seen as a form of review instance, which double-
checks on the decisions made by the NRAs. On the other hand, the
Commission could also be seen as a party in the original decision-making
chain, together with legislative instances and NRAs. It would then be in
charge of certain elements in the chain.

The setup of the EC electronic communications framework on this point
falls into line with general principles of EC law: the second option is to be
preferred. Indeed the SMP procedure (pursuant to which most NRAs
decisions are taken) rests on a division of tasks between the Commission
and the NRAs: the Commission, via the Guidelines on market definition and
SMP 9 and the Recommendation on relevant markets 10, already carries out
a significant portion of the SMP procedure. By doing so, it effectively sets the
parameters for the work of NRAs 11 . As the recitals to Directive 2002/21
indicate 12, the Commission is entrusted with this task in its capacity as
"guardian of the Treaty", given that (i) EC competition law, where the
Commission has the lead role, is used to providing guidance for market
definition and assessment; and (ii) some coordination is needed in the
interest of the internal market. Article 7 should be seen in the same light: the
Commission must be consulted because of its obvious interest in

8 Including the list of policy objectives at Article 8 of Directive 2002/21, the latitude left to the
NRAs in the choice of remedies and their powers concerning scarce resources.

9 Infra, note 13

10 Infra, note 12.

11 See P. LAROUCHE "Coordination of European and Member State Regulatory Policy -
Horizontal, Vertical and Transversal Aspects", in D. GERADIN & N. PETIT (Eds),
Which
Regulatory Authorities in Europe?
(Edward Elgar Cheltenham, 2005).

12 See in particular Recitals 27-28.



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