The presentation examines the gaps in judicial protection in the framework of network-based governance

1. Networks and judicial review Dr. Mariolina Eliantonio, LL.M. Maastricht University

2. Outline Introduction to networks Effectivejudicialprotection in the EU Identifying the gaps in judicialprotection Case specificdecisions Acts of general nature

4. E.g. Commission – competition law from 1960 until reform of 2003

5. Decentralised: application and enforcement of EU law by national administrative authorities

6. E.g. national regulatory authorities whichadministerEU telecommunication legislation

7. Agencies: actions of Member States are overlooked and subject to some control at the EU level

9. 1.3 Networks: legal nature The networks do not possess legal personality or autonomous powers They are an institutional infrastructure through which national authorities interact with each other and the Commission on matters directed at the successful exercise of their regulatory mandate

10. 1.4 Networkdecisions: types Case specific: network may be consulted by national authorities in the course of decision-making proceedings Consultation on draft decisions of national authorities Facilitation of information exchange General: network adopts soft law policy instruments which are a guidance for national authorities Identification of best practices and performance indicators Position of the network members on how to best apply EU provisions Advice to Commission

12. Theydon’t have to beconsideredbycourts

13. Anywaytheytend to befollowedbycourts

14. lack of necessary expertise

16. 3.1 Identifying the gaps in judicialprotection: case specificdecisionsa. case allocation Facilitatedby the network Exchanges and consultations on transfer are mattersbetween public enforcers Firms and complainants are informedthat a transfer takesplacebutthey don’t know the reasonswhichunderlie the determination Finaldetermination in the proceedingsissubjecttojudicialreview BUT itwillbe hard (ifnotimpossible) for the applicantto prove that the transfer wasunlawful

17. 3.1 Identifyingthe gaps in judicialprotection: case specificdecisionsa. case allocation Solution network itselfmakesbindingact on transfer so decisionisreviewable Which court wouldthenhavejurisdiction? Fearthat the mechanismwould stop working Harmonisationofproceduralenvironment so thatfirmswon’t have a reasontocomplainover transfer Itisfeasible? Legalbasis Itdesirable? Hugecosts and coherenceof the system

18. 3.1 Identifyingthe gaps in judicialprotection: case specificdecisionsb. exchangeof information Happens within the network Exchange itself is considered an internal network matter: no decision is adopted and firms are not informed of the exchange Possible that transferee uses info they could either not have collected themselves or for whose collection the national procedural law would provide for more stringent requirements

19. 3.1 Identifyingthe gaps in judicialprotection: case specificdecisionsb. exchangeof information Solution Act of transfer becomes a reviewable act Which court wouldthenhavejurisdiction? Fear of underminining the effectiveness of the mechanism Review of the info collected on the basis of the transferee law Fear of underminining the effectiveness of the mechanism Harmonisation of rules on information Itisfeasible? Legalbasis Itdesirable? Differences are minimal, hugecosts and coherenceproblem

20. 3.1 Identifyingthe gaps in judicialprotection: case specificdecisions Conclusion do we need to fill these gaps? Network based governance was created to solve the problems created by the decentralised enforcement  providing an administrative infrastructure Its success as an administration model is based on the flexibility of the model If more judicial review is introduced, network members may become cautious in the use of the mechanisms

21. 3.1 Identifyingthe gaps in judicialprotection: case specificdecisions Conclusion (II) Network decisions themselves should not be challengeable… … but then advantages of harmonisation become clear Neutralises incentives to litigation Avoids unequal treatment

22. 3.2 Identifying the gaps in judicialprotection: actsofgeneral nature Aimed at influencing individual decisions of the national authorities Formally: soft law, no binding value However: documents generally followed by national authorities Risk: firms are constrained by these documents while they may embody a wrong or inefficient outcome Should these documents be made reviewable? Need to make them hard law to be reviewable (at this stage no court – national or EU – would rule on their legality because they don’t produce binding effects)

23. 3.2 Identifyingthe gaps in judicialprotection: actsofgeneral nature Networks have to acquire legal personality and issue binding rules Advantages Incentive to keep high quality of the network documents Increase accountability and thus legitimacy of decisions Disadvantages Meroni complied with? Consensus on content harder to achieve National authorities more cautious on adopting decisions if they know they are binding More litigation and discouraging effect to produce more decisions in the future Courts will review decisions so less incentives to be innovative

24. 3.2 Identifyingthe gaps in judicialprotection: actsofgeneral nature Problem of competent court National courts? Lack of expertise Different outcomes and risk of non uniform application CFI? Enough expertise Uniform solution for EU Problem with standing Individual concern: act of general nature Direct concern: there is act at national level + discretion of national authorities Change introduced by Lisbon doesn’t bring changes (direct concern still needs to be proven) Appellate body of the network itself Enough expertise Uniform solution Problem with independence?

25. 3.2 Identifyingthe gaps in judicialprotection: actsofgeneral nature Even if access… intensity of review? Probably reticence Expertise of networks Conclusion Justiciability of network decisions problematic Solution through more ex ante participation? At the moment no right to be heard What if someone not consulted? No enforcement  rules governing participatory process are not binding Should they be? Too much procedure and slowness of system? System then no longer efficient?

26. Thank you for your attention! Every remark, question, comment or suggestion is welcome atm.eliantonio@maastrichtuniversity.nl