Europäisches Regulierungsverwaltungsrecht auf Abwegen

The European law on the regulation of network industries is in constant motion. Recently, the former EC (now EU) has taken legislative measures to develop further the current regulatory framework for European energy markets. Directive 2009/72/EC concerning common rules for the internal market in electricity and directive 2009/73/EC concerning common rules for the internal market in natural gas (both of 13 July 2009) are based on the idea that 'strong' regulatory authorities are necessary to enforce an effective common market in energy. National regulatory authorities not only shall enforce market competition but (insofar in accord with the so called more economic approach in competition law) also consumer benefits and general welfare aspects. The author criticizes the underlying regulatory concept as it is incompatible with the competition principle and overtaxes the affected administrative authorities with the political complexity of interest balancing. The legislative measures also raise various questions concerning the organizational framework of the European regulatory system. Regulation (EC) No 713/2009 of 13 July 2009 establishes an Agency for the Cooperation of Energy Regulators. The author criticizes the Union's competence to establish independent authorities with administrative powers. Finally, both common market directives contain special provisions with regard to the status of national regulatory agencies. Member States shall guarantee the independence of the regulatory authority and shall ensure that it exercises its powers impartially and transparently. The relevant authority may not seek or take direct instructions from any government or other public entity when carrying out the regulatory tasks. The author criticizes a severe lack of democratic accountability that is incompatible with the European concept of democracy and with the Union's duty to respect the national identity including the democratic structures of the state. In the result, European regulatory law is currently going astray.