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



P. LAROUCHE & M. de VISSER

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and in particular the objectives referred to in Article 8 [of Directive 2002/21]".
A mere disagreement with the NRA accordingly does not suffice for resorting
to a veto: the Commission must show that the measure envisaged by the
NRA would prejudice either the internal market or EC law (including
competition law) 14.

Moreover, given that the draft decisions under review involve trade-offs,
without there being a right answer, it is sensible not to veto an NRA unless
there is a significant conflict with Community law.

In the light of the information presented above, the Commission, when
acting under Article 7(4) of Directive 2002/21, should intervene only when
the draft measure proposed by an NRA is such that it will hamper the
internal market (on the basis of concrete evidence) or that it will significantly
conflict with Community law. In its Article 7, which took effect in 2003, the
Commission has indeed allowed diverging measures (or at least diverging
lines of reasoning) to stand in a number of situations. Yet in its
Communication on the Article 7 procedure 15 and in its 2006 Review
Communication 16, the Commission sets a different standard, namely
"consistency" or "coherency" across the EU. These terms are not defined
any further, yet it is difficult to escape the conclusion that they mean a single
harmonized solution across the EU.

The Commission decision vetoing the draft measure of the German
NRA 17 effectively illustrates the difference between the standard outlined
above and a "consistency/coherency" standard 18. The Commission vetoed
the draft measure because it departed from what other NRAs had done 19,
without, however, explaining how that measure would have hampered the
internal market or significantly clashed with Community law. Under the

14 The case-law of the ECJ concerning harmonization (Case C-376/98 Germany v. Parliament
and Council
("Tobacco Advertising") [2000] ECR I-8419, para. 84; see the most recent
pronouncement in Case C-154/04
Alliance for Natural Health [2005] ECR I-6451, para. 24-43)
requires evidence of a negative impact on the internal market - going beyond mere differences
between national laws - for harmonization to be justified.

15 Consolidating the internal market for electronic communications, COM(2006)28 (6 February
2006) at 6, 9.

16 Supra, note 1 at 4, 8-9.

17 Then the Regulierungsbehorde für Telekommunikation und Post (RegTP), now the
Bundesnetzagentur (BNetzA).

18 Market 9 in the Recommendation on relevant markets, supra, note 12.

19 Commission decision of May 17th 2005, Case DE/2005/144, available at:
<forum.europa.eu.int>.



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