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See, Michel Kerf, Isabel Neto and Damien Geradin, Antitrust vs. Sector-specific Regulation in Telecom: What Works Best? (February 2005), available at SSRN: http://ssrn.com/abstract=886292.
For details about the comparison, for example, between EC model and USA model, see Nicolas Petit, Circumscribing the Scope of EC Competition Law in Network Industries? A. Comparative Approach to the US Supreme Court Ruling in the Trinko Case, 13 Utilities Law Review (2004), 6 and also Pierre Larouche, Contrasting legal solutions and the comparability of EU and US experiences, 3rd Antitrust Conference in Paris, December 12, 2005, accessed on 20th Sep, 2006 and available at:
http://www.cerna.ensmp.fr/cerna_regulation/Documents/Antitrust2006/Larouche.PDF#search=%22Contrasting%20legal%20solutions%20and%20the%20comparability%20of%20EU%20and%20US%20experiences%22
See, Alexandre De Streel, One Year of Practice of the EC Economic Regulation in the Electronic Communications, speech at KULeuven on 21st April, 2005.
It refers to the four new directive concerning liberalization of EC electronic communications sectors in 2002, which are 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 authorization of electronic communications networks and services, O.J. L108/21 (Authorization 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 Directive).
See, Article 14-16 of Framework Directive, ibid.
Ibid, Article 7.
See, Commission Staff Working Document Communication from the Commission to the Council, the European Parliament, the European Economic And Social Committee And the Committee of the Regions on the Review of the EU Regulatory Framework for electronic communications networks and services, {COM(2006)334 final}, SEC(2006) 817, Brussels, 28 June 2006, pp. 19.
See, Alexandre De Streel, The Integration of Competition Law Principles in the New European Regulatory Framework for Electronic Communications, World Competition 26(3), pp 489-514.
See, Commission Staff Working Document Communication from the Commission to the Council, the European Parliament, the European Economic And Social Committee And the Committee of the Regions on the review of the EU Regulatory Framework for electronic communications networks and services, COM(2006) 334 final, SEC 2006 (816), pp. 20.
See, for example, John Temple Lang, European competition policy and regulation: Differences, overlaps, and constraints, 3rd Antitrust Conference in Paris, December 12, 2005, accessed on 20th Sep, 2006 and available at: http://www.cerna.ensmp.fr/cerna_regulation/Documents/Antitrust2006/Temple-Lang.pdf#search=%22European%20competition%20policy%20and%20regulation%20Differences%20overlaps%20and%20constraints%22; and also Nicolas Petit, The Proliferation of National Regulatory Authorities alongside Competition Authorities: A Source of Jurisdictional Confusion, GCLC Working Paper 02/04 (2004), accessed on 20th Sep, 2006 and available at http://gclc.coleurop.be/documents/04b%20GCLC%20Working%20Paper%2002-04.pdf
See, join cases C-359/95 and C-379/95 P Commission and France v. Ladbroke Racing ECR I-6225, Para 34; Case T-228/97 Irish Sugar v. Commission ECR II-296, Para 130; and Case T-513/93 Consiglio Nazionale Degli Spedizionieri Doganali II-1807, Para 59.
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.
See, Christian Bergqvist (2005), supra note 2.
Since justice system, i.e. European courts or national courts, is the last resort which resolve disputes finally, this paper assumes there would be no jurisdictional conflicts between justice system and the other three administrative institutions, i.e. the Commission, NRAs and NCAs. Therefore, this paper is only concerned with the conflictive relationship between competition authorities and regulatory authorities. In addition, this paper also assumes there are no institutional conflicts between the Commission, sitting as a competition authority, and NCAs since Council Regulation 1/2003 already provides an appropriate mechanism for the jurisdictional conflicts between the Commission and NCAs. Last but not least, in pending Case C-366/06 the Finish court referred an interesting question to the ECJ whether the national court can make legal evaluation before the Commission’s decision under the Article 7 Procedure. This may suggest an institutional tension between the Commission and national courts concerning the review power of the Commission under the Article 7 Procedure. See, Case C-366/06, reference for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 8 September 2006 - DNA Verkot Oy, OJ L 108, p. 33.
See, Article 20 of Framework Directive, supra note 6.
See, Alexandre de Streel, A Program for Reforms for the European Regulation of Electronic Communications, presented at the ITS Conference in Porto in 2005, accessed on 20 September, 2006 and available at: http://scholar.google.com/url?sa=U&q=http://userpage.fu-berlin.de/~jmueller/its/conf/porto05/papers/de%2520Streel.doc. Laffont and Martimort (1999), Barros and Hoernig (2004) show that it is more efficient that both authorities decide a case independently than jointly for three reasons. First, the probability that cases are solved is highest with independent decisions, even though each authority may give less attention to the case than it was alone. Second, independent decisions are less vulnerable to lobbying. Third, it is also less likely that no authority feels responsible for a given case.
See, Nicolas Petit (2004), supra note 4.
See, Christian Bergqvist (2005), supra note 2.
See, Damien Geradin and Robert O’Donoghue, The Concurrent Application of Competition Law and Regulation: The Case of Margin Squeeze Abuses in the Telecommunications Sector (February 2005), GCLC Working Paper No. 04/05, available at SSRN: http://ssrn.com/abstract=671804.
See, Article 3(4) of Framework Directive, supra note 6.
Ibid, Article 8.
See, Communication on Market Reviews under the EU Regulatory Framework – Consolidating the internal market for electronic communications COM(2006) 28, pp. 2.
See, Electronic communications: the Article 7 Procedure and the role of the Commission - Frequently Asked Questions, MEMO/05/255, Brussels, 14 July 2005.
See, Communication on Market Reviews, supra note 24, pp. 3.
The five veto decisions are case FI/2003/24, case FI/2003/26, case FI/2004/82, case AT/2004/90 and case DE/2005/144. The first two of Finnish cases have been corrected by new notifications. See:
http://forum.europa.eu.int/Public/irc/infso/ecctf/library?l=/commissionsdecisions&vm=detailed&sb=Title.
See, the EU Competition/Regulation Overview table, accessed on 28 December and available at: http://europa.eu.int/information_society/policy/ecomm/doc/article_7/competition-regulation%20first%20round%2020-12-2006_nonewmarkets.pdf.
See, Article 6 of Framework Directive, supra note 6.
See, Nicolas Petit (2004), supra note 4.
See, Deutsche Telecommunications AG, supra note 14. In this case, the Commission challenged the activity of Deutsche Telecom with regard to its subscription fees, though the price of Deutsche Telecommunications was subject to a price-cap obligation imposed by the German regulator.
See, Commission Recommendation on Relevant Product and Service Markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services, C(2003)497, pp. 12.
See, Article 20 of Framework Directive, supra note 6.
See, Alexandre De Streel (2003), supra note 10.
See, Article 14-16 of Framework Directive, supra note 6. For more detail about the three-steps analysis, please refer to Recommendation on Relevant Markets, supra note 32, pp. 7-12; Alexandre De Streel (2003), supra note 10; and also, Peggy Valcke, Robert Queck and Eva Lievens, EU Communications Law: Significant Market Power in the Mobile Sector, Edward Elgar (Chletenham), 2005.
See, Alexandre De Streel (2006), supra note 2.
See, Recommendation on Relevant Markets, supra note 32, pp. 10 – 12.
See, Article 7(3) of Framework Directive, supra note 6.
See, Article 8.3 of Access Directive, supra note 6.
See, Commission Staff Working Document (816), supra note 11, pp. 18.
Ibid.
See, Nicolas Petit (2004), supra note 12. In sectors where the “networking” pattern has been followed (for instance, the electronic communications sector), the NRAs are the arm of the Commission for bringing about market liberalisation. Thus, the development of conflictual relationships between the Commission and the NRAs may in the long run compromise vital collaboration between both levels. In addition, the initiation of formal legal proceedings may affect the credibility of the NRA with regards to the regulated entities.
See, Deutsche Telecommunications AG, supra note 14.
See, Commission Staff Working Document (816), Supra note 11, pp. 18.
See, Recommendation on Relevant Markets, supra note 32, pp. 11 – 12.
See, Antonio F. Bavasso, “Essential facilities in EC law: the rise of an ’epithet’ and the consolidation of a doctrine in the communications sector”, (2002) 21 Yearbook of European Law, pp. 63; John Temple Lang, “The Principle of Essential Facilities in European Community Competition Law – The Position Since Bronner”, (2000) 1 Journal of Network Industries, pp. 375. The case law has helped clarify the conditions under which an undertaking controlling an essential facility is under a duty to give access to its infrastructure. In Bronner case, ECJ held that, for a refusal to give access to be an abuse of a dominant position, it must be shown that (1) the refusal to grant access is likely to eliminate all competition in the downstream market and cannot be objectively justified and (2) the good, service of infrastructure in question is absolutely indispensable for the carrying out the economic activity (i.e. there is no alternative to this). See, Case C-7/97, Oscar Brönner v. Mediaprint, 26 November 1998, ECR I- 7791.
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