欧盟电信法中的新概念——“重要市场力量”
The New Concept of SMP in EU Electronic Communications
侯利阳
【摘要】The first part will briefly introduce the new concept of SMP in the 2002 regulatory framework, plus its link with dominance under Article 82 EC Treaty. Subsequently, two Commission veto decisions will be discussed in order to show how the Commission applies the SMP regime in concrete cases. Finally, the last part will compare the distinction between SMP and dominance from three aspects.
【关键词】significant market power, dominance, competition law, sector specific regulation
【全文】
I. Introduction
The notion of significant market power (SMP) within the 2002 regulatory framework is not totally new. It was already brought forward by the 1998 regulatory framework according to which national regulatory authorities (NRAs) can impose obligations on undertakings with SMP. Nevertheless, the 2002 regulatory framework redefine the concept of SMP from two aspects. The first is to align it to the concept of dominance under Article 82 of the EC Treaty (Article 82). The second is that it becomes more significant under the 2002 regulatory framework in a sense that the designation of SMP is the sole trigger to impose regulatory obligations by NRAs , save in a limited number of circumstances .
According to Article 14 of Framework Directive in conjunction with the Commission guideline on market analysis and assessment of SMP (the guideline), the concept of SMP is equivalent to that of dominance. First, they share the same definition that SMP, equivalent to dominance, is a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers. Second, corresponding to dominance there are also three groups of SMP which are single SMP, collective (or joint) SMP and leverage of market power. Third, the criteria for assessment for the two concepts are similar as well. The Commission within the guideline quotes the Community practices, including the case law of the two European courts (ECJ and CFI) and the Commission measures, in relation to dominance under Article 82 to interpret the assessment criteria of SMP. Generally speaking, the assessment of SMP should comply with the criteria to assess dominance. Nevertheless, there does exist a difference, probably the only difference, that SMP will be assessed under a forward-looking basis while dominance will be assessed under a backward-looking basis.
