The Boards of Appeal of Networked Services Agencies: Specialized Arbitrators of Transnational Regulatory Conflicts?

This chapter deals with the Boards of Appeal (BoAs) of the EU Agency for the Cooperation of Energy Regulators (ACER) and the EU Agency for Railways (ERA). It shows that these bodies exercise, through a quasi-judicial procedure, a substantially exclusive competence to review the individual decisions adopted by these agencies. However, it also highlights that, when exercising this competence, these BoAs tend to mimick EU Courts, as to the scope and intensity of their review. The chapter maintains that this ‘judicialization’ deprives the appeal mechanism of much of its added value, without strengthening the effectiveness of the judicial protection offered to appellants. The chapter thus find that the appeal mechanism should remain a form of specialized administrative review, based on reasons of expediency and extended to the content of the contested decisions. This, together with their composition and their innovative arbitration competences, would also enable ACER and ERA BoAs to emerge as specialized ‘arbitrators’ of transnational regulatory conflicts between EU agencies and national regulatory authorities.