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



130


COMMUNICATIONS
«.STRATEGIES


No. 64, 4th Q. 2006


competition law and the internal market, and it even receives a limited veto
right to safeguard these interests. The Commission therefore participates in
the SMP decision chain because of its specific tasks and for the sake of
specific interests. It therefore cannot be seen as a general review instance
that would police the action of NRAs.

Furthermore, such a role would be at variance with general principles of
EC law, first and foremost subsidiarity and national procedural autonomy 13.
According to these principles, member states are in charge of the
implementation of EC legislation (as reflected here in the role of NRAs as
front-line players under electronic communications regulation) and they are
also in charge of the procedural conditions for such implementation,
including the review of decisions made by the national administration.

In the end, therefore, the role of the Commission under Article 7 is not to
review NRA decisions fully, as this would infringe upon member states'
autonomy in setting the procedural and institutional framework for
safeguarding the rights of individuals bestowed upon them by EC law.
Moreover, a full review would introduce an inefficient duplication of review.
Rather, the Commission's role under Article 7 is no different than at other
stages in the SMP procedure: the Commission is one of the players, and it is
given a role in view of the specific interests (EC competition law, internal
market) that it is meant to safeguard. General and full review of NRA
decisions can thus be seen to rest properly with national courts.

What should be the standard for Commission intervention
under Article 7 of Directive 2002/21?

From the above, it would follow that the Commission should intervene
under Article 7 only when the specific interests it must protect are at stake.
Indeed, this is proven by the text of Article 7(4), where the parameters of the
veto right are set out. The Commission can launch the Article 7(4) procedure
(two-month suspension of the NRA draft measure with a possible veto) if "it
considers that the draft [NRA] measure would create a barrier to the single
market or if it has serious doubts as to its compatibility with Community law

13 The principle of subsidiarity is laid down in Article 5 second indent EC. The doctrine of
national procedural autonomy has been developed by the Court of Justice in its case law,
starting with Case 33/76
Rewe-Zentralfinanz eG and Rewe-Zentral AG v
Landwirtschaftskammer für das Saarland
[1976] ECR 1989.



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