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COMMUNICATIONS
«.STRATEGIES
No. 64, 4th Q. 2006
standard outlined above (as opposed to "consistency/coherency"), this draft
measure should not have been vetoed.
The "coherency/consistency" standard put forward by the Commission
could, in fact, stem from a misconception of the precedent value of
competition law decisions. There is informal evidence 20 to the effect that
the Commission takes a strategic view of decisions taken by NRAs. Given
that the SMP framework is inspired by competition law and that NRAs are
supposedly following competition law principles when defining and
assessing markets, the Commission would be worried about allowing any
undesirable precedent to be set, and conversely would perhaps even like to
establish some favourable precedents under electronic communications
regulation, which could subsequently be used in the application of
competition law. While this worry is understandable, it is misplaced. Firstly,
based on a proper understanding of the role of the Commission in the
Article 7 procedure and of the applicable standard, as set out above, the
Commission does not approve or disapprove of the substance of NRA
decisions, it rather exerts a specific form of control to safeguard the internal
market and Community law in cases where serious doubts arise. Secondly,
and more fundamentally, the market definition and market assessment
conducted in a given case does not have a strong precedent value for
subsequent cases, even if they concern the same products or services.
Market definition and market assessment are intimately linked with the
individual circumstances of each separate case, and therefore the precedent
value of competition law decisions is limited, as the CFI (Court of First
Instance) aptly noted in GE/Honeywell 21. This is all the more true in cases
where a regulatory decision intended to be based on competition law is
invoked in subsequent competition law proceedings.
From a practical perspective, and perhaps more provocatively, the value
of coherency/consistency across the EU should not be exaggerated. Driven
to its logical end, only an EU-level regulator can provide complete
coherency/consistency. Given the institutional choices made with the
electronic communications framework, it is unavoidable that some
discrepancy will arise between NRA decisions. As set out further below,
such discrepancies can be advantageous in a context of uncertainty.
20 The authors wish to apologize for not being able to substantiate this point more solidly at this
juncture.
21
Case T-210/01 General Electric v. Commission, not yet reported, at para. 118-120.