National parliaments as regulators of network industries: In search of the dividing line between regulatory powers of national parliaments and national regulatory authorities

Abstract

While the juridical discourse on the institutional dimension of EU sector-specific regulation has, until very recently, been pervaded by the strong underscoring of the role of national administrative authorities, European Commission or European agencies within the regulated sectors, the recent judgments of the Court of Justice in Commission v. Germany and Base NV prompt us to think about the current and future role of national parliaments. First, it turns out that the national parliament is also allowed to play the role of a NRA in the sectors concerned. However, such situations seem to be rather exceptional, because, given the constitutional arrangements that the national parliaments are subject to, it is not easy for member states to ensure the level of decision-making independence of the parliament and the judicial control over its acts that are required by the EU regulatory framework in the case of NRAs. Second, national parliaments have been deprived by the EU legislature and the Court of Justice of the possibility of exerting legislative influence on the regulatory activity of NRAs having the status of administrative authorities. Except for very few instances, national parliaments cannot steer the regulatory actions of NRAs and are not allowed to determine the regulatory choices made by the latter. This is regrettable insofar as it runs contrary to the constitutional principle of the domain of the law, weakens the protection of fundamental rights and freedoms of the undertakings concerned, and undermines the democratic legitimization of NRAs. This article claims that such a shortcoming of the current EU regulatory framework for network industries should be quickly redressed, which would undoubtedly be beneficial to the quality of regulatory processes.