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Network-Based Governance in EC Law

The Example of EC Competition and EC Communications Law

By: Maartje de Visser
Media of Network-Based Governance in EC Law
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Published: 23-11-2009
Format: Hardback
Edition: 1st
Extent: 420
ISBN: 9781841132563
Imprint: Hart Publishing
Series: Modern Studies in European Law
Dimensions: 234 x 156 mm
RRP : £140.00

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About Network-Based Governance in EC Law

To strengthen the credibility of the EU and its policies, the European Community is increasingly concerned to emphasise effective enforcement of EC law. This book engages in the debate on the better application of European law by offering an integrated analysis of a new institutional arrangement - one that relies on networks grouping the Commission and national administrative authorities. Taking the traditional enforcement paradigms of decentralisation, centralisation and agency-based enforcement as starting points, their benefits and downsides are described and critiqued, and the author concludes that there is considerable room for improvement.

The book then undertakes a comprehensive analysis of the network model to determine its core characteristics and assess its effectiveness. European competition law and electronic communications law are used as case studies because, inter alia, the networks there have developed an adequate level of sophistication. The book also employs a bottom-up approach, considering how four key Member States (France, Germany, the Netherlands and the United Kingdom) have given effect to the relevant European rules. At the core of the book is a critique of the wider normative attractiveness of the network model. The discussion is kaleidoscopic, engaging with a wide variety of notions including legitimacy, judicial review, subsidiarity, institutional balance and efficiency. The thrust of the book is that network-based governance deserves careful consideration as the model that is able to mediate the competing concerns of coherence for Internal Market reasons, and of diversity and respect for local autonomy.

This book is useful for EC competition law and communications law practitioners, and those with a keen interest in institutional and administrative law.

Table Of Contents

List of Tables and Figures
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
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
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
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
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
III. The Societal Perspective
A. Competition among Rules, Consistency and Legal
B. Upgrading the Network?
IV. Conclusion
8 Conclusions


“De Visser is to be congratulated for producing a well-written, timely and densely researched text supported with a wide range of primary sources…This book is likely to feature as an important reference source for all those interested in regulatory theory, and specifically the way in which the administration and enforcement of competition law, and sector specific legislation, can coexist through a network of Member States and their respective regulatory agencies/courts, and bound under one economic area agreement.” –  Rohan Kariyawasam, European Law Review

“Overall, this well-researched book is written in a very readable style with abundant information throughout the text but also in the footnotes. Above all it provides balanced and challenging food for thought about the changes in governance modes that we can observe in European law administration and incites more generally to reflect on the future institutional developments that network-based governance should or should not take in order to contribute to the effective application of EU law throughout all Member States, and thus proves to be a primary contribution to the design of law in practice.” –  Ida Wendt, Common Market Law Review

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