Enforcement and judicial review of decisions of NRAs

While much attention is given at EU level to the design and operation of National Regulatory Authorities (NRAs), the enforcement and review of NRA decisions has been largely left to the Member States to organise.

With this report, CERRE provides a comprehensive examination of Member State law and practice regarding the enforcement and review of NRA decisions. This report is based on a study of energy, electronic communications and rail regulation in Belgium, France, Germany, the Netherlands and the UK. We review EU and Member State legislation, and the case law of national review courts. We make recommendations based on the best practices we identified.

In general, we found that that the harmonization of substantive law at EU level seems to exert a greater influence on Member State law and practice than the diversity of national procedural laws. Accordingly, the degree of divergence between the Member States under study is more limited than one might have expected at first sight. Furthermore, it is also apparent that Member States have by and large taken a horizontal approach to the design of enforcement and review regimes since, for any Member State, we observed that the solutions tend to converge as between sectors.

As a starting point, the design of the enforcement and review of NRA decisions must find a balance between three policy objectives, namely the protection of the rights of market players and interested parties, the effectiveness of the regulatory regime and the efficiency of the enforcement and review process.

Against that background, we studied 12 key issues. From our study, the following recommendations emerge as to the best practices for the enforcement and review of NRA decisions.

• Enforcement of NRA decisions: It is preferable to give NRAs the power to impose penalties directly for failure to comply with their own decisions (as opposed to a power to act against breaches of the regulatory framework, which would comprise their own decisions).
• Stay of NRA decisions during appeal proceedings: An appeal against an NRA decision should have no automatic or systematic suspensive effect, with the possible exception of appeals against NRA decisions ordering the payment of fines. As compared to the situation some years ago, concerns for the effectiveness of regulation, stemming from excessive use of stays of enforcement, seem to have abated.
• Nature of review court: Member States should allocate the review of NRA decisions to a specialist court (or a specialist body within an existing court). We recommend a horizontal, cross-sector approach in designing the review regime, such that a single court would be responsible across the various sectors, in order to maximise the chances of cross-fertilisation and synergies between sectors.
• Standing and third-party intervention: Standing to appeal against an NRA decision should be granted to all parties who are affected by the decision, subject perhaps to a requirement that the party has participated in the proceedings before the NRA. Third parties whose interests are affected should be able to join review proceedings. The NRA itself should appear before the review court in order to defend its decision. As long as the review court has the ability to join related proceedings, the study shows that the conduct of proceedings has not been significantly affected by the presence of multiple parties.
• Length of proceedings: In general, review proceedings take long: in observable cases, the average duration has been close to a year and a half. An EU-level benchmark norm on duration might be envisaged. Some Member States do not commit enough resources to the handling of the appeal proceedings; in particular, enough qualified judges should be available.
• Confidential information and business secrets: That information is well protected in all Member States, although procedures vary. The best practice is to allow the review court to gain knowledge of the information, which is then shared with a restricted circle of counsel for the parties to the case, without being available to the parties themselves.

Scope of review. Review courts should be entitled to review all factual, legal and policy issues, as long as the parties to the case brought these issues before the court.

• Investigating powers: Since the NRA file is usually quite extensive and the parties provide the NRA with comprehensive submissions, review courts have not been using much of their current investigating powers in practice. There is no need to increase such powers.
• Standard for review: All review courts should use the same standard for review, namely a full review of issues of law, a broad review of the errors of fact and a marginal review of the exercise of discretion by the NRA.
• Formal or substantive analysis: If marginal review is the standard, where the NRA enjoys discretion, substantive analysis would best suit review proceedings. In any event, multiple-stage review (because a review of the substance would be pre-empted by a first stage of formal review) should be avoided.
• EU-level coordination: Cross-fertilisation is lacking as between the various sectors and the various jurisdictions under study. A complete and coherent case-law database on NRA review should be established, and the various Member State courts discharging the review of NRA decisions should be regrouped in a European association, on the model of the Association of European Competition Law Judges.
• Retroactive effect of remedies upon review: It is difficult to choose between the ex tunc and ex nunc models, i.e. to decide whether the remedies granted by review courts should have retroactive effect or not. On balance, leaving aside dogmatic considerations arising from one or the other national legal system, it would be preferable, from a pragmatic perspective, not to give retroactive effect to the remedies granted by the review court (be it quashing of the NRA decision or substitution of a new decision by the review court).

It must be underlined that these questions are interrelated so that for instance the risks linked with not giving retroactive effect to the remedies granted by the review court would be minimized by a shorter duration of review proceedings.

Ultimately, even when the regime of enforcement and review of NRA decisions is optimally designed and operated, this is but one of the elements which contributes to the success of regulation. Other measures can be taken to increase the quality of NRA decisions ex-ante (better procedures before the NRA, adequate resources, etc.), so as to reduce the need for review and thereby procure even greater improvements in the effectiveness of regulation.