Network-Based Governance in EC Law

Foreword
Acknowledgements
List of Tables and Figures
Abbreviations
Introduction
1 Modes of Governance in EC Law
I. Thinking about Governance
II. Governance Models, the EC and its Member States
A. Centralised Governance
B. Decentralised Governance
C. Decentralised Governance with a Centralised Twist
D. Traditional Governance Models Compared and
Contrasted
III. The Models in Perspective
A. Centralised Governance
B. Decentralised Governance
C. Decentralised Governance with a Centralised Twist
IV. The Emergence of Networks for EC Law Enforcement
A. The Network in Political Science
B. Networks as Legal Tools: The Initial Approach
C. The Next Step: Lawmaking Networks
D. Law Administration Networks: Introducing the ECN
and the ERG
E. New Governance Revisited
V. Conclusion
2 The Role of National Authorities in Network-Based Governance
I. National Enforcement Structures Compared
A. Germany
B. France
C. The Netherlands
D. The United Kingdom
E. Comparisons
II. Mandate and Function
A. Competition Law
B. Communications Law
III. Powers and Procedures
A. The Powers of the NCAs and NRAs
i. General Powers
ii. Specific Powers
iii. Sanctions
iv. Interim Conclusion
B. Procedures Applicable to NCAs and NRAs as a
Matter of EC Law
i. Competition Law
ii. Communications Law
IV. Institutional Principles
A. The Definition and Designation of NCAs and NRAs
B. Regulatory Capacity
C. Independence
i. Some Thoughts on Independence
ii. Independence from Market Actors
iii. Institutional Independence
iv. Individual Independence
v. Financial Independence
vi. Interim Conclusion
V. Conclusion
3 The Role of National Courts in Network-Based Governance
I. National Enforcement Structures Compared
II. Mandate and Function
A. Competition Law
B. Communications Law
III. Powers and Procedures
A. The Powers of the National Courts
i. Competition Law
ii. Communications Law
B. Procedures to be Followed by National Courts as a
Matter of EC Law
i. The Burden of Proof
ii. Amicus Curiae Interventions
iii. Locus Standi before the National Courts
iv. Suspensory Effect of Appeals
v. Appeals to Non-judicial Bodies
IV. Institutional Principles
A. The 'Appropriate Expertise' of National Courts
B. The Independence of National Courts
V. Conclusion
4 The Role of the Commission in Network-Based Governance
I. Direct Administration: Prosecuting Infringements of the
Competition Rules
A. Types of Decisions
B. The Commission's Prioritisation Policy
C. The Commission's Decision-Making Bureaucracy
II. Indirect Administration: Overseeing and Guiding National
Actors
A. Monitoring National Actors
B. Influencing National Actors
C. The Commission's Supervisory Bureaucracy
III. Conclusion
5 Methods for Consistency across National Institutions
I. Consistency through Procedural Tools
A. Devices Applicable to the National Authorities
i. Notification
ii. Consultation
iii. Transversal Controls
iv. Judicial Review
v. Commission Intervention (Pre-emption and Veto)
vi. The European Consistency Provision
vii. Summary of the Procedural Tools Applicable to
National Authorities
B. Devices Applicable to the National Courts
i. Notification
ii. Consultation
iii. Amicus Curiae Observations
iv. The European Consistency Provision
v. Evaluating the Status Quo
II. Consistency through Substantive Devices
A. Hard-Law Devices
i. Competition Law
ii. Communications Law
B. Soft-Law Devices
III. Conclusion
6 The Network: A European Administration Infrastructure
I. Organisation, Mandate and Function of the ECN and ERG
A. The European Competition Network (ECN)
B. The European Regulators Group (ERG)
C. Comparisons
II. Structuring Interaction between the Commission and the
National Authorities
A. Case-Based Interactions
i. Shared Processes
ii. Processes Exclusive to the Competition Regime
iii. Processes Exclusive to the Communications
Regime
iv. Some Broader Reflections on the Processes
B. Framing Enforcement Policy
i. Agenda-Setting
ii. Guiding Network Members in Decision-Making
III. The Network Effect: Europeanising National Authorities
IV. Conclusion
6b Summarising Network-Based Governance
7 Three Perspectives on Network-Based Governance
I. The Perspective of Firms and Consumers
A. Legitimacy, Accountability and Transparency
i. Legislative Mandate
ii. Accountability
iii. Due Process
iv. Expertise
v. Effectiveness and Efficiency
vi. Interim Conclusion
B. Effective Judicial Protection
i. The Constitutive Components of Effective Judicial
Protection
ii. Controlling Case-Based Interactions
iii. Soft Law Revisited
II. The Perspective of Network Administrators
A. Horizontal Relationships and Institutional Balance
B. Vertical Relationships and the Principle of
Subsidiarity
III. The Societal Perspective
A. Competition among Rules, Consistency and Legal
Certainty
B. Upgrading the Network?
IV. Conclusion
8 Conclusions