Judicial review of decisions made by national regulatory authorities: Towards a more coherent application of EU sector-specific regulation

Abstract

It is really striking that—while under the EU regulatory framework for network industries (and for financial institutions) the regulatory actions of national regulatory authorities (NRAs) themselves are subject to a far-reaching influence exerted by other institutional actors in the sectors concerned, in particular by the Commission, with a view to ensuring a coherent and consolidated application by NRAs of the EU sector-specific regulation (and of the EU law regulating financial institutions) across the whole EU—a similar influence is not expressly provided for under the said framework with regard to the regulatory actions of national courts. Such a state of affairs is highly undesirable, because any coherent and consolidated regulatory outcomes, beneficial to the internal market, reached at the level of the NRAs in all member states, may potentially be reversed or undermined by the appealing courts at least in some member states. This extensive immunity of national courts from EU-wide influence, aimed at the consolidation of their regulatory actions, can no longer be justified by the institutional autonomy of member states or the independence of their judiciary. The present article proposes and analyses substantive and institutional solutions that, while observing the specific, independent status of national courts, can efficiently contribute to the achievement of a truly internal market in network-bound sectors (and in financial markets), beneficial to all its participants.