4.The common-market policy vs. The principle of subsidiarity
　　The constitutional tension between the common-market policy and the principle of subsidiarity is also displayed in the new regulatory framework. The supreme objective of common market dominates the Commission, the European regulatory authority, working in a relatively opposite environment from the NRAs which have to pay more attention to their national situations. Therefore, the Commission has incentive and reason to interfere in national regulatory remedies to the extent that they are not compatible with the common market policy. It is another causation of the conflict between the Commission and the NRAs.
　　II. Jurisdictional Conflicts between the Commission and NRAs
　　These inherently substantive tensions between general competition law and sector specific regulation are externalized by division of powers between the Community and MS. Furthermore, such jurisdictional tensions are intensified by a fact that the Commission plays a dual role, both as the European regulatory authority and as the European competition authority.
　　1.European Regulatory Authority vs. NRAs
　　Framework Directive requires NRAs to comply with a three-step procedure: market definition, designation of SMP and imposition of regulatory remedies in turn. In terms of Article 7 of Framework Directive, the Commission, as the European regulatory authority, enjoys exclusive supervision power, or veto power, over the first two steps: market definition and designation of SMP. Therefore, the Commission can tightly control NRAs at these two stages, no matter based on antitrust considerations or on regulatory considerations. Thus, such hierarchical framework provides a legally certain solution to market definition and designation of SMP.
　　2.European Competition Authority vs. NRAs
　　However, the Commission, being the European regulatory authority, loses its control at the third stage of such procedure, i.e. imposition of regulatory remedies. It could result in a situation where on the one hand, NRAs can impose additional remedies after the redress of the Commission, as the European competition authority; on the other hand, although as the European regulatory authority the Commission cannot restrain unsatisfactory remedies by NRAs, as the European competition authority it can frustrate the decisions of NRAs in the form of EC competition law.

第 [1] [2] [3] [4] [5] 页 共[6]页