从程序法的角度来看欧盟电信法中竞争和管制的冲突
Conflicts between Competition law and Regulation in EC Electronic Communications Sector: Analysis of the Institutional Framework
侯利阳
【摘要】The EC regulatory framework in the electronic communications sector is characterized by the concurrent application of competition law and sector specific regulatory rules. An institutional defect of this dual-regulatory model is the risk of duplication of procedures between competition authorities and regulatory authorities. The 2002 regulatory package issued by the European Parliament and Council of the European Union for electronic communications services and networks makes a great contribution toward resolving the institutional conflicts between the two groups of institutions by establishing a cooperation mechanism. However, the imperfection of the current cooperation mechanism may not fully eradicate institutional conflicts. This paper offers some thoughts on a potential reform of the current cooperation mechanism between competition authorities and regulatory authorities with regard to the residue institutional conflicts.
After describing some background issues (Part I), the paper will investigate the EC model of the concurrent application of competition law and sector specific regulation, followed by a brief introduction of the two innovations within the 2002 regulatory framework. (Part II) Subsequently, the residual institutional problems coming from the imperfection of the current cooperation mechanism will be discussed. (Part III) Next to it, it will examine the relationship between competition law and sector specific regulation in European Community and then provide four proposals to improve the current regulatory framework by smoothing the residual institutional problems at European level and at national level. (Part IV) Finally, some conclusive remarks will be given in the last part. (Part V)
【关键词】欧盟；电信法；竞争法；管制；冲突
【全文】
TABLE OF CONTENTS
I. INTRODUCTION
II. THE CURRENT REGULATORY FRAMEWORK OF EC 6
i. The Concurrent Application of Competition Law and SSR
ii. The Innovations of the 2002 Framework
1. The Article 7 Procedure
(1) A brief introduction
(2) Advantages to resolve institutional conflicts
2. Converging Competition law Methodologies into SSR
III. REMAINING INSTITUTIONAL CONFLICTS WITHIN THE 2002 FRAMEWORK
i. No Veto Power on National Regulatory Remedies: The Article 7 Procedure
ii. Ambiguity of Insufficiency of Competition Law: Market Analysis
iii. An Area outside Market Analysis: Article 5 of Access Directive
iv. Interim Conclusions
IV. PROPOSALS FOR RESOLVING CONFLICT
i. The Relationship between Competition Law and SSR – The Principle of lex specialis with Exceptions
ii. Resolving Conflicts at the European Level
1. Extension of Article 7 Procedure to remedies
2. Extension of the Commission’s review power to the enforcement stage
(1) The clear case
(2) The bottleneck case
3. No need to amend Article 5 of Access Directive
iii. Resolving Conflicts at National Level
1. Ex ante preventive measures
(1) Exclusive areas of SSR vis-à-vis competition law
(2) Sufficiency of SSR vis-à-vis competition law in the area of common interests
2. Ex post cooperative measures
iv. Interim Conclusions
V. Conclusions
Bibliography
I. INTRODUCTION
Incentivized by the economic value of electronic communications and a new view of regulatory economics, the liberalization of the electronic communications sector is prevalent worldwide. This former highly regulated sector is gradually being subject to the rules of market, so called “deregulation”. So far economy-wide competition law and sector specific regulations (hereinafter, SSR) are the two indispensable, if not only, sets of rules that are being simultaneously applied to augment marketplace incentives in many countries. However, the ambiguity of substantive, as well as institutional, differences between competition law and SSR sometimes cause institutional conflicts. In order to prevent duplication of procedures and finally eliminate it, a balance must be struck to allow the simultaneous application of both regulatory regimes. So far, countries have developed three models to balance the dual regulatory regime:
(1) main reliance on competition law (for example, New Zealand),
(2) primary dependence on SSR (for example, United States of American, hereinafter USA) and
(3) concurrent application of competition law and regulation (for example, European Community, hereinafter EC).
In the EC, the model of the concurrently applying competition law and SSR has raised more institutional problems than the other two approaches to balancing competition law and SSR . First, more parallel institutions are involved in the liberalisation process in the EC, including European Court of Justice (hereinafter ECJ), the European Commission (hereinafter, the Commission), national regulatory authorities (hereinafter, NRAs), national competition authorities (hereinafter, NCAs) and national courts. Second, because it is legitimate for competition authorities to intervene into SSR under the EC legal regime, different institutions with different competences, but sharing common industry areas, lead to complicated institutional conflicts.
The entering into force of the 2002 regulatory package of EC for electronic communications services and networks (hereinafter, the 2002 Framework) considerably streamlined the interconnection between competition law and SSR. With regard to the jurisdictional conflicts between European institutions and national institutions, two brilliant innovations have been introduced. The first is the substantive integration of competition law principles into SSR, the so called three-step analysis (defining the market, designating SMP undertakings, and imposing appropriate obligations), and the second innovation is the establishment of an institutional cooperation procedure, i.e. the consultation procedure provided by Article 7 of Framework Directive (hereinafter, the Article 7 Procedure).
The first innovation considerably enhances regulatory legal certainty by confining NRAs within EC competition law standards, while the second innovation grants the Commission, in particular the Information Society and Media Directorates General (hereinafter, DG Information), a new role resembling the European Regulatory Authority (hereinafter, ERA) to ensure pan-European regulatory consistency. These two moves, substantive or institutional, alleviate many of the institutional conflicts between the Commission and NRAs at European level and conflicts between NRAs and NCAs at national level.
Unfortunately, the 2002 Framework does still leave three institutional conflicts untouched. First, the fact that national regulatory remedies fall out of the reach of the Commission veto power under the Article 7 Procedure weakens the possibility of the Commission achieving its regulatory objectives. Second, merging competition law standards into SSR expands the margin of overlap between competition law authorities and regulatory authorities. Third, some areas outside the former two innovations possibly would deteriorate the institutional conflicts. The prospect that these institutional conflicts, at the European level and national level, will likely slow the move to a level playing field for the electronic communications players on the common market has been grasped both by the Commission and by scholars.
Some institutional conflicts can be dealt with under the current EC legal system while others require further reform. This paper offers some ideas regarding how to avoid cumulative jurisdictions between competition authorities and regulatory authorities based on a more effective cooperation mechanism.
In the following, the paper will first investigate the EC model of the concurrent application of competition law and SSR, followed by a brief introduction of the two innovations within the 2002 Framework. (Part II) Subsequently, the residual institutional problems coming from the imperfection of the current cooperation mechanism will be discussed. (Part III) Next to it, it will examine the relationship between competition law and SSR in EC and then provide four proposals to improve the current cooperation mechanism by smoothing the residual institutional problems at European level and at national level. (Part IV) Finally, some conclusive remarks will be given in the last part. (Part V)
II. THE CURRENT REGULATORY FRAMEWORK OF EC
After decades of liberalization, the electronic communications sector is subject to a mix of regulation-oriented competition and antitrust-oriented competition regimes. Within this trend, jurisdiction arrangements have become hardcore issues in regulating the electronic communications sector. Taking consideration of the respective advantages of competition law and SSR, every jurisdiction allows both sets of rules, more or less, to apply to this sector. The EC model is notable for its almost evenhanded dependence on both sets of rules, i.e. concurrent application of competition law and SSR. The 2002 Framework offers two innovative contributions, the Article 7 Procedure and integration of competition law methodologies into SSR, to alleviate the tensions between competition authorities and regulatory authorities resulting from this concurrent evenhanded distribution of power between them.
i. The Concurrent Application of Competition Law and SSR
Under the current EC law regime, competition law and SSR are both applicable to the electronic communications sector. This was held by the European courts and clearly confirmed by the Commission in Deutsche Telecom case that “competition rules may apply where the sector-specific legislation does not preclude the undertakings it governs from engaging in autonomous conduct that prevents, restricts or distorts competition.” Nevertheless, this approach leads to a situation where the jurisdictional conflicts between competition authorities and regulatory authorities in EC are more complicated than that of the other two aforementioned models, i.e. the New Zealand model and the USA model.
