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欧盟电信行业的反垄断和管制

  3. The Convergence and Divergence of SSR and Competition Law
  After introducing competition law methodology into regulation, as seen from the table below, we will easily find that the legal conditions and remedies of Article 82 EC and regulation strikingly coincide. A snapshot approach would lead to the bold conclusion that from some point of view the application of regulatory obligations under the new directives could be considered as nothing more than reprint of competition law principles, but applied ex ante. However, of course no researcher would like to be convinced of this argument. Thus, a further examination of the effect of convergence on the application of regulatory obligations needs to be taken.
  Table 1: the contrast of legal conditions between Article 82 and economic regulation
   Preliminary Step Step 1 Step 2 Step 3 Step 4 Conclusion    Remedy
  
  Article 82
  
  Suspected activity of abusing dominant position
  Market definition
  
  Existing of dominant position or not
  Abuse of dominant position or not
  Effects on border trade or not 1. If fulfil all the legal conditions: infringement;
  2. Otherwise: no infringement 1. Fines,
  2. exceptionally, transparency,
  3. non- discrimination,
  4. provide access,
  5 reduce price.
  
  Economic regulation
  
  Markets selected by the recommendation or by NRA
  Market definition
  
  Existing of SMP or not
  The existence of effective competition or not
  
  
   1. If effective competition: withdraw regulation;
  2. Otherwise: impose regulation 1. transparency;
  2. non-discrimination;
  3. accounting separation;
  4. access obligation;
  5. price control
  
  3.1 Market definition
  3.1.1 Convergence of methodology
  Under the regulatory framework, the definition of markets and the assessment of SMP will be consistent with the same methodologies as competition law. 
  The preliminary step is to identify markets that may be justified to impose regulatory obligations. This analysis must include an overall assessment of the effectiveness of competition law alone in addressing the market failures concerned through three criteria provided by the recommendation. The first criterion is whether a market is subject to high and non-transitory entry barriers. The second criterion is whether a market has characteristics such that it will tend over time towards effective competition. And the third criterion considers the sufficiency of competition law by itself (absent ex ante regulation), taking account of the particular characteristics of the electronic communications sector.
  After identifying a preliminary market, it follows market definition, the main purpose of which is to identify in a systematic way the competitive constraints that the undertakings face. The objective is to identify those actual and potential competitors of the undertakings that are capable of constraining their behaviour and of preventing them from behaving independently of an effective competitive pressure. The market definition arrived at can depend on the relative weight given to demand-side and supply-side substitutability, and can also depend on the prospective time horizon considered. It is important to recall that market definition for the purposes of the Recommendation is not an end in itself but is a means to assessing effective competition for the purposes of ex ante regulation. The objective is that NRAs and competition authorities, when examining the same issues in the same circumstances and with the same objectives, should in principle reach the same conclusions. Moreover, the use of the same methodologies ensures that the relevant market defined for the purpose of sector-specific regulation will in most cases correspond to the market definitions that would apply under competition law. 
  3.1.2 Divergence of decision
  Although NRAs and competition authorities, when examining the same issues in the same circumstances and with the same objectives, should in principle reach the same conclusions, it cannot be excluded that markets defined for the purposes of competition law and markets defined for the purpose of sector-specific regulation may not always be identical. This divergence comes from the different objectives of competition law and regulation, also from the characteristics of telecommunications sector.
  First, relevant markets defined for the purposes of sector-specific regulation will always be assessed on a forward-looking, dynamic and prospective basis, as the NRA will include in its assessment an appreciation of the future development of the market. Nevertheless, competition authority defines market according to past behaviour. On the other hand, the starting point of carrying a market definition by NRAs is not so much based on the occurrence of an anti-competitive activity or a concentration as done by competition authorities, rather based on an assumption of the NRAs that the market in question is not effectively competitive and competition law alone cannot suffice to remedy. Therefore, the experience of competition law can only have particular relevance, but not determinant.
  Second, a competition authority does not, in principle, have the opportunity to conduct a periodic review of its decision in the light of market developments, whereas NRAs are bound to review their decisions periodically under Article 16(1) of the framework Directive. This factor can influence the scope and breadth of the market analysis and the competitive assessment carried out by NRAs, and for this reason, market definitions under the new regulatory framework, even in similar areas, may in some cases, be different from those markets defined by competition authorities.
  Third, when defining the relevant market, the competition authority will collect data closely related to the anti-competitive activities or the concentration in question, which normally only involves several undertakings and/or limited number of relevant markets; whereas the NRAs collect information usually concerns more the whole industry, which involves all the undertakings and all specific undertakings. What is more, in a sector characterised by constant innovation and rapid technological convergence, it is clear that any current market definition runs the risk of becoming inaccurate or irrelevant in the near future.
  Last, for the purposes of ex-ante regulation, in certain exceptional cases, the relevant market may be defined on a route-by-route basis. In particular, when considering the dimension of markets for international retail or wholesale electronic communications services, it may be appropriate to treat paired countries or paired cities as separate markets. Nevertheless, according to the practices of competition law, market definition in telecommunications sector are based on network basis. This would necessarily result into different market definition.


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