EJTN AD On-line Classroom on Electronic Communication Law

EJTN AD On-line Classroom on Electronic
                          Communication Law
                                                      24/25 June 2021

Judicial Review of Regulatory Decisions in the
           Electronic Communications Sector

                              Anthony M. Collins
       President, 3rd Chamber, EU General Court

            With financial support from the Justice
            Programme of the European Union

Decentralised Regulatory
            System
Directive 2002/21/EC of the European Parliament
and of the Council of 7 March 2002 on a common
regulatory framework for electronic communications
networks and services (Framework Directive) (OJ L
108, 24.4.2002, p.33), as amended.
Harmonised framework to regulate electronic
communications services and networks in the EU.
Lays down the tasks of national regulatory
authorities (NRAs). Establishes procedures to
ensure the harmonised application of the regulatory
framework throughout the EU.

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National Regulatory Authorities

• Establishment [Art. 3.1 FD]

• Independence [Art. 3.2 FD]

• Functioning & Resources [Art. 3.3 FD]

• Enhanced Independence in ex-ante market
  regulation and dispute resolution [Art. 3.3a FD]

• Security of tenure of members [Art. 3.3a FD]

                                                     3

Results of Decentralisation

NRAs regulate electronic communications
services and networks in the EU.
No EU level telecommunications regulator.
EU General Court cannot exercise judicial
review functions.
EU Court of Justice role limited to references for
preliminary ruling under Article 267 TFEU.

                                                     4

Appeal Procedure

• Member States must provide “an effective
  appeal mechanism” against decisions of NRAs.
  [Art. 4.1 FD]

• Right to appeal granted to “any user or
  undertaking providing electronic
  communications networks and/or services …
  affected by a decision of a national regulatory
  authority”. [Art. 4.2 FD]

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Appeal Body

The appeal body must:

• be independent of the parties involved;
• have the appropriate expertise to enable it to
  carry out its functions effectively;
• take due account of “the merits of the case”;
• need not be a court.
[Art. 4.2 FD]

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Judicial Control of Appeal
              Body

Where the appeal body is not “judicial in
character” it must give written reasons for its
decision.

Appeal body decisions must be subject to review
by a court or tribunal within the meaning of
Article 267 TFEU.
[Art. 4.2 FD]

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Nature of Appeal

• Appeal “on the merits” conducted by a specialist body or a
  body with access to specialist expertise
• Not de novo
• Challenge to the NRA decision on grounds of factual error
• Boundary between error of fact and error of law
• Consequences of factual error for validity of NRE decision
• Exercise of judicial functions by appeal body
• Who decides?

                                                               8

Irish Experience

• Transposition of FD by establishing Electronic
  Communications Appeal Panel.
• Ad hoc panels of three independent persons
  with experience of the law, economics and
  communications technology, respectively.
• First issue - the scope of the appeal.
• After four years ECAP abandoned.
• Appellate jurisdiction vested in the High Court.

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Scope of Appeal

      Vodafone Ireland Ltd. v. Commissioner for
    Communications Regulation [2013] IEHC 382
• Material error of law, to include significant failure to
  comply with or a misinterpretation or
  misapplication of a mandatory requirement of the
  Regulations.
• Decision is vitiated by a serious and significant
  error or series of errors of fact or law.
• Where decision contains a serious, significant and
  material mistake such that its operation /
  implementation would be manifestly unreasonable,
  disproportionate or incompatible with the aim
  pursued.

                                                             10

Scope of Appeal
Per Cooke J.:
“…Article 4 [FD] requires the Member States to provide
users and undertakings with a “right of appeal” against
decisions of an NRA without imposing any qualification
on the nature or scope of the appeal other than the
requirements that it be effective and that the “merits of
the case” are taken into account. The fact that the
appeal body is to have the appropriate expertise
available to it clearly indicates that it will be expected to
fully examine all technical, economic, financial or other
factors to the extent that they may be put in issue by an
appellant. The remedy is clearly wider than the form of
judicial review encountered elsewhere in Union
legislation including, of course, the remedy of Article 263
TFEU …..”

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Article 263 TFEU

Action for Annulment

•    Lack of competence
•    Infringement of an essential procedural
     requirement
•    Infringement of the Treaties or of a rule of
     law
•    Misuse of Powers

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Article 263 TFEU

              Lack of competence

Legal basis

Powers conferred

                                   13

Article 263 TFEU

     Infringement of an essential procedural
                    requirement
To consult when under a duty to do so
To hear an addressee of an act
To give reasons
To state a legal basis
Not to respect a legitimate expectation to comply
internal procedural requirements
To notify or publish an act when required to

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Article 263 TFEU

     Infringement of the Treaties or of a rule of law
• Infringement of the Charter of Fundamental Rights,
  general principles of EU law, international
  agreements concluded by the EU, customary
  international law.
• General principles include proportionality, respect
  for fundamental rights, legal certainty, legitimate
  expectations, non-discrimination.
• Error of law (misinterpretation of the applicable
  rules or applying an incorrect rule), error of fact
  (failing to correctly determine the factual basis of a
  contested act) or a mixed question of fact and law.

                                                           15

Article 263 TFEU
   Case C-386/10 P, Chalkor AE Epexergasias Metallon v.
               Commission EU:C:2011:815

• Standard of TFEU Art. 263 review (para. 50).
• Commission has a margin of discretion in areas that involve
  complex economic assessments
• EU Courts may review the Commission’s interpretation of
  economic information. May establish whether evidence
  relied on is (a) factually accurate, reliable and consistent, (b)
  contained all the information that must be taken into account
  to assess a complex situation and (c) capable of
  substantiating the conclusions drawn therefrom (para. 54).
• Review conducted by reference to the evidence adduced by
  the applicant.

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Article 263 TFEU

               Misuse of Powers

"the adoption … of a measure with the exclusive
purpose, or at any rate the main purpose, of
achieving an end other than that stated or
evading a procedure specifically prescribed by
the Treaty for dealing with the circumstances of
the case“
Case C-248/89 Cargill v. Commission
EU:C:1991:264, para. 26

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Judicial Review of NRA decisions

• In principle, no ouster of national courts
  jurisdiction to judicially review NRA decisions
  [Art. 3.3a FD]

• In practice, Member States can channel all
  challenges to NRA decisions by way of appeal.
  Attractiveness of an appeal.

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Judicial Review of NRA decisions

• Full appeal envisaged by Art. 4 FD - judicial
  review?

• Full appeal by a court - judicial review.

• Judicial review of an NRA decision under
  jurisdiction retained at national law.

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Article 267 TFEU

Jurisdiction to refer reserved to Member State
courts and tribunals.
Must be established by law, be permanent, have
compulsory jurisdiction, apply inter partes
procedures, apply rules of law and be
independent.

C-274/14 Banco de Santander SA
EU:C:2020:17, para. 51

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Article 267 TFEU

Jurisdiction limited to questions on

(a)   the interpretation of the Treaties;

(b)   the validity and interpretation of acts of the
      institutions, bodies, offices or agencies of
      the Union.

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Article 267 TFEU

 Eircom Ltd. v. Commission for Communications
           Regulation [2021] IEHC 328
Statutory appeal
Disagreement as to the meaning of the
judgment in Case C-389/08 Base NV EU: C:
2010: 584.
Application to the assessment of an unfair
burden where there is only one USP in the
market and as to the correct test to be applied in
determining what is an unfair burden.

                                                     22

Article 267 TFEU

  Eircom Ltd. v. Commission for Communications
           Regulation [2021] IEHC 328

Is an NRA required to consider whether a Universal
Services Operator Net Cost is excessive in view of
the ability of the USP to bear it by reference to the
quality of its equipment, its economic and financial
situation and its market share ?
Can an NRA conduct that assessment by having
regard exclusively to the characteristics/situation of
the USP, or must it assess the
characteristics/situation of the USP relative to its
competitors in the relevant market?

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Article 267 TFEU

 Eircom Ltd. v. Commission for Communications
           Regulation [2021] IEHC 328
Statutory appeal
Disagreement as to the meaning of the
judgment in Case C-389/08 Base NV EU: C:
2010: 584.
Application to the assessment of an unfair
burden where there is only one USP in the
market and as to the correct test to be applied in
determining what is an unfair burden.

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Thank you!

With financial support from the Justice
Programme of the European Union