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If a clear borderline between the applicable scope of competition law and regulation existed, the jurisdictional tenseness in telecommunications liberalisation would eliminate and it would facilitate the further liberalisation process. Competition authority transfer its jurisdiction to the regulator on the ground that it would be better to handle these matters by enforcing sector-specific legislation. Thus, ex post intervention based on competition rules has thus been prolonged by an application of ex ante sector-specific regulatory regimes. This regime partly confirmed by the new Framework Directive that ex post competition law and ex ante regulatory regime are seen as alternative tools to control market power in telecommunications sector where a matter can be properly dealt with by the NRAs, competition cases should be passed on to them. However, the distinctions between sector regulations and competition law and their respectively executive branches become increasingly blurred under the influence of several factors.
First, the argument that regulation only exist where necessary would lead to substantial overlaps not only at national level between the national regulator and national competition authority, but also at European level between the Commission and national authority. Besides, not only are the new telecommunications Directives so profoundly inspired by antitrust principles thereby bringing regulation closer to competition law standards (the convergence of methodology of market definition and the equivalence of SMP to dominance), but the full liberalisation policy accelerates the transition of network industries toward competitive markets.
Second, in parallel to this substantive evolution, the powers of NRA and NCA are gradually conveying in an environment where NRAs are increasingly entrusted with ex post-based powers such as settling of disputes while the NCA and the Commission parallel to this have adopted an ex ante-based policy where regulatory clarity are offered through guidelines.
Finally, according to EC legislations and the case law of the European Court , there is still some residual scope for the application of competition law ex post to intervene regulatory remedies when the outcome of this decision fails to prevent competition-law violations from occurring.
Accordingly the relationship between competition law and regulation in not as simply as alternative, compared to the USA model. In EC, the relationship between competition law and regulation is more complicated. In the applicant’s view, we can say that there exists a bi-layer regime of competition law and regulation in EC legal system. At the first layer, the application of competition law and regulation are alternative to each other which would be the most cases. At the second layer, under exceptional cases according to the principle in ONP directives , the application of competition law and regulation would affect each other in an interactive way. As regards the second layer, there are two issues which need to be investigated further. The first one is under what conditions competition law can intervene regulatory obligations. The second one is more intricate how regulation affect the application of competition remedies and what the effect of such intervention.
【注释】 See, Communication from the Commission towards a new framework for Electronic Communications infrastructure and associated, the 1999 Communications Review, COM (1999) 539.
Directive 2002/21/EC of the European Parliament and of the Council of March 7, 2002 on a common regulatory framework for electronic communications networks and services: O.J. L108/33, (Framework Directive). Directive 2002/20/EC of the European Parliament and of the Council of March 7, 2002 on the authorisation of electronic communications networks and services: O.J. L108/21, (Authorisation Directive). Directive 2002/19/EC of the European Parliament and of the Council of March 7, 2002 on access to, and interconnection of, electronic communications networks and services: O.J. L108/7, (Access Directive); Directive 2002/22/EC of the European Parliament and of the Council of March 7, 2002 on universal service and users’ rights relating to electronic communications networks and services: O.J. L108/51, (Universal Service Obligations Directive).
Since these moves aims to create an effectively competitive market in the end and to make market itself as an automatically regulator plus the protection of competition law, the liberalisation process is usually named as deregulation.
See D. Geradin, “The Opening of State Monopolies to Competition: Main Issues of the Liberalization
Process”, in D. Geradin, Ed., The Liberalization of State Monopolies in the European Union and
Beyond, Kluwer Law International, 2000, P. 181-182.
Directive 2002/21/EC, Framework Directive, Article 16.
Different degree of balance between competition law and regulation in telecommunications sector would lead to different extent of competitiveness on the telecommunications market. See, Michel Kerf, Isabel Neto, and Damien Geradin, How Antitrust and Sector Regulation Affect Telecommunications Competition,
http:// rru.worldbank.org/PapersLinks/Open.aspx?id=6317.
See, Commission Decision of 21 May 2003 relating to a proceeding under Article 82 of the EC Treaty, case COMP/C – 1/37.451, 37.579 – Deutsche Telecommunications AG, O.J. 2003, L 263/9, Para 54 – 57.
It means only competition law can intervene regulation, whereas regulation cannot intervene competition law.
See, Paul Nihoul and Peter Rodford, EU Electronic Communications Law, Oxford University Press, 2004, P 1-2.
There are many contributions concerning this point. See one of them in Dr. A. E. Bollard, Utility Regulation in New Zealand, 1997, http://www.comcom.govt.nz/MediaCentre/Speeches/ContentFiles/Documents/Utility%20Regulation%20in%20NZ%20-%20Dr%20A%20E%20Bollard.PDF.
See, Commission Staff Working Document, Europe’s Liberalised Telecommunications Market – A Guide to the Rules of the Game, P 6.
See, Mats A. Bergman, Competition law, Competition Policy and Deregulation, SWEDISH ECONOMIC POLICY REVIEW, 9 (2002) 93-128.
See, Sharon Eisner Gillett, Technological Change, Market Structure and Universal Service, Twenty-Second Annual Telecommunications Policy Research Conference, 1994.
See, S. Ran Kim and A. Horn, Regulation Policies Concerning Natural Monopoly in Developing and Transitional Economies, http://www.un.org/esa/papers.htm.
Supra, note 14.
See, Mark Armstrong, The Theory of Access Pricing and Interconnection, Handbook of Telecommunications Economics, Volume 1, Chapter 8.
See, Günter Knieps, Regulatory Reform of Telecommunications: Past Experience and Forward-Looking Prospectives, http://unesdoc.unesco.org/images/0012/001256/125676m.pdf.
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