Die Bundesnetzagentur auf dem Weg zur Independent Agency? Europarechtliche Anstöße und verfassungsrechtliche Grenzen

Abstract

Abstract The paper provides a differentiated answer to the question whether European Union law requires the development of the German Federal Network Agency (FNA) towards an Independent (Regulatory) Agency based on the American model. On the one hand, such a “metamorphosis” is supported by the fact that EU law guarantees the regulatory freedom from political influence in the energy and telecom sectors. Furthermore there is – notwithstanding the FNA`s lack of rulemaking power – a clear impetus to strengthen the scopes for action of the national regulatory authorities (NRA). That is a fortiori the case since the ECJ`s questionable decision on New-Markets of 3 December 2009. Accordingly, in the telecommunications sector, a pre-structuring of the NRA`s discretion by the national legislature is ruled out in principle. On the other hand, in the Arcor decision of 24 April 2008 the court rightly emphasizes that it is a matter solely for the Member States to determine – among other matters – the detailed rules of ...