II. THE PROMOTION OF INVESTMENTS IN NEW MARKETS IN ELECTRONIC COMMUNICATIONS AND THE ROLE OF NATIONAL REGULATORY AUTHORITIES AFTER COMMISSION V GERMANY

Abstract

The judgment of 3 December 2009 in Commission v Germany touches upon the issue of improper implementation by a Member State (Germany) of the EU regulatory framework in the electronic communications sector.1 In this sense, the judgment in question belongs to the relatively large group of rulings in which the European Court of Justice (ECJ) categorizes the legislative actions (or inactions) of Member States in the field of electronic communications as infringing the Union secondary legislation.2 Undoubtedly, however, Commission v Germany constitutes a judgment that is of paramount importance within the above-mentioned group of rulings and deserves a particularly close attention. Being confronted here with the German rules that generally exempted the so-called new (emerging) markets in the sector concerned from ex ante regulation, the Court had an opportunity to express its views on such key regulatory issues as: 1)the position of encouraging efficient investment in infrastructure, and promoting innovation within the hierarchy of objectives that the EU regulation in electronic communications sector aims to achieve;2)the scope of discretionary powers of national regulatory authorities (NRAs) in defining the markets susceptible to ex ante regulation, and in regulating those markets, including the markets having a new or emerging character;3)the role of national legislators in regulating electronic communications markets, and particularly the relationships between national legislators and NRAs in the field of regulation of the markets in question.It must be noted at once that this latter issue has its far-reaching implications at the constitutional level of the Member States, because the relations between legislative and executive (administrative) authorities are usually determined constitutionally. As a result, the annotated judgment concerns not only such teleological, procedural and institutional issues that are crucial for the Union's concept of regulation in the electronic communications sector, but also issues that are seminal from the constitutional perspective of the Member States. Moreover, the judgment in question is also of great relevance to other network-bound sectors subject to regulation at the EU and national levels, especially as far as the status of NRAs and their position vis-à-vis national legislators are concerned.