欧盟电信行业的反垄断和管制
Competition Law and Regulation in The EC Telecommunications Sector:A Comparative Legal Approach Based on Economics
侯利阳
【摘要】
This project will be divided into six parts. Part 1 will introduce law and economics related to deregulation in telecommunications sector on which the subsequent analysis in this project is based. The following part will present the evolution of liberalisation in EC regime and lay out the current legal framework. Part 3 will assess the convergence of methodology of market definition in regulatory regime and a set of divergence will be listed. In Part 4, the remedies imposed by competition law and regulation concerning particular competition problems will be compared and the difference of the two liberalisation tools will be identified. The fifth part will focus on re-assessment of the relationship between competition law and regulation. Some conclusions will be contained in the last part.
【关键词】电信行业，反垄断，管制
【全文】
Competition Law and Regulation in The EC Telecommunications Sector:
A Comparative Legal Approach Based on Economics
1. Economic Analysis of Liberalisation
1.1 The Rationales of liberalisation
The telecommunications sector is one where Services of General Economic Interest (SGEI) play an important role. Such characteristics make telecommunications sector not only an economic activity but also a foundation of the whole society. In addition, this sector contains natural monopoly elements, such as economy of scope and scale, high sunk fixed costs and more importantly that market price would be as low as possible to average costs when supply is close to the demand of the whole market. These features of telecommunications sector lead to a blank wall for market entry. Hence, at the outset, it makes a bold conclusion that according to these characteristics this sector is better to be operated by vertically integrated monopoly. Due to this consideration, scholars doubted the possibility that telecommunications sector could be subject to competitive market and accordingly vertically integrated monopoly owned by public authorities is the model of ante-liberalisation process in almost all countries. And until around 1980 at ante-liberalisation stage, telecommunications sectors in the EC was characterised by a series of national public monopolies with vertical integrated structure and often run in conjunction with postal services.
There are at least four main negative effects of public telecommunications monopoly. First, it can increase the price, which transfers wealth from consumers to the producer. Second, a price increase typically has the effect of reducing quantities below the optimal level, resulting in allocational inefficiencies. Third, market power can result in X-inefficiencies, i.e., in weaker cost control. Fourth, firms can waste resources in order to gain more market power.
Beside, recently new developments such as technological progress, which offer means to change cost structure of former telecommunications natural monopoly, have fundamentally challenged the traditional regulatory practices based on the concept of natural monopoly. Moreover, the steady break-up of “intrinsically monopolistic” network industries into separate elements has largely obviated the justification for the existence of large, vertically integrated monopolies. There are increasing doubts whether some of the industries traditionally regulated do in fact have the structural characteristics of a natural monopoly. Many traditional natural monopolies have been shown to be less naturally monopolistic than was once thought to be the case.
The focus of regulatory policy concerning natural monopoly has clearly shifted with the evolution of technology and challenge from new economic theory, which led to a steady break-up of natural monopoly and made more competition technically feasible. Instead of merely focusing on problems surrounding “inevitable” monopolization such as the pricing problem, the current regulation policy hence encompasses, above all, issues related to the design of regulatory policy accompanying the restructuring, privatization, and expansion of competition into the area formerly occupied by legal monopolies. In particular, the issue of how to replace regulation with competition, which is deemed as the best regulator, now occupies a central place on the current agenda of natural monopoly regulation.
1.2 The model of liberalisation
According to abovementioned, the issue of how to replace monopoly with competition now occupies a central place on the current agenda of natural monopoly regulation. Generally speaking, telecommunications network has naturally monopolistic elements and therefore cannot be expected to be subject to competition, at least in a short time, whereas it is possible to introduce competition into telecommunications services which have less economic market barriers in a short while so far as the new entrants providing services can have access to necessary network input. Thus, the key point is how to unbundled network component from service component, to open the downstream market subject to competition and finally bring competition into bottleneck component, namely network, which runs the fundamental concern of telecommunications liberalisation.
The first issue in liberalising telecommunications sector is to remove the exclusive or special rights on the market in order to facilitate free market entry. Secondly, for realizing the advantage of economy of scale and scope, the former monopoly usually is maintained vertically in the network market and service market. Thirdly, the new entrants normally could not build their own network immediately, or have no enough resources to do. Thus, a set of access obligations for the incumbent must be set up to provide the new entrants with necessary input. Fourthly, asymmetry between incumbent and new entrants results into difficulty for the latter to compete even in the downstream market and therefore service price would in most countries be controlled by the regulators by the means of rate of return or price cap. Lastly, some affiliated obligations, such as disclosure necessary information, separation of account of different operations and so on, would also be imposed by the regulator on the incumbents.
1.3 The paradoxes behind liberalisation
1.3.1 Monopolisation vs. competition
Monopolisation offers four potential advantages over unregulated competition in this simple setting. (1) Industry prices can be controlled directly; (2) Transfer payments can be made to the firm to provide desired incentives; (3) The firm’s profit can be taxed to generate public funds, thereby reducing the deadweight losses associated with other sources of public funds; and (4) Duplicative fixed costs of production can be avoided because there is only one industry supplier.
