欧盟电信法中的新概念——“重要市场力量”-法搜-中国法律信息搜索网

　　Nevertheless a difference does exist in the approaches to appraise these criteria. It is always underlined by the Commission that within SMP regime the market power should be appraised on a forward-looking basis by considering the expected and foreseeable developments over a reasonable period, with past data being taken into account when relevant.　In addition, a specific word which was always used by the Commission in its comments is the “dynamic competition”. By contrast, Article 82 aims to punish the anti-competitive activities of dominant undertakings and therefore assessment of dominance refers to the market power at the time when the anti-competitive activities concerned came out, i.e. a backward-looking approach.
　　In order to analyze the dynamics in the market, first and foremost, NRAs must provide pertinent and up-to-date data concerning the criteria they choose.　In the first Finnish case, Ficora’s draft measures were vetoed because it failed to provide sufficient information. In another case, serious doubts were raised as to the draft measure of Danish regulatory authority by the reason of lack of up-to-date date as well.　
　　Second, NRAs have to consider whether there exist dynamics on the market from a forward-looking perspective based on the data collected. The second Finnish case illustrates how the Commission apply this approach. The indicators of dynamics include, but are not limited to, significant drop of market share, persisting decrease of price, increasing countervailing buying power, lower barrier to expansion of competitors and lower switching costs for the consumers.
　　3. High burden of proof borne by NRAs
　　The SMP regime imposes a burdensome obligation on NRAs. First, in a case where the market share of the undertaking concerned is below 80%, under the 2002 regulatory framework NRAs have to further take full consideration of other criteria before concluding SMP,　while under Article 82 either such high market share may itself be an evidence of dominance , or the burden of proof to disprove this prima facie evidence will be switched to the suspected undertaking.