|
See, Damien Geradin and Robert O’Donoghue (2005), supra note 21.
See Commission Decision of 23 October 2001, on the lack of exhaustive and independent scrutiny of the scales of charges and technical conditions applied by La Poste to mail preparation firms for access to its reserved services, OJ L 120 of 7 May 2002, pp.19-37. And Commission Press Release IP/97/292 of 11 April 1997, “Settlement reached with Belgacom on the publication of telephone directories – ITT withdraws complaint”.
See, Recommendation on Relevant Markets, supra note 32, pp. 12.
See, Pending Case T-109/06, Vodafone España and Vodafone Group v Commission, OJ 2002 L 108, pp 33.
NRAs are certainly not competent to bring a preliminary ruling before ECJ by themselves. See, Case C-256/05, reference for a preliminary ruling from the Telekom-Control-Kommission by application of 13 June 2005 in a procedure concerning Telekom Austria AG, OJ C 205 of 20.08.2005.
For example, compulsory access to network to ensure end to end connectivity (Article 4 and Article 5 of Access Directive), compulsory access to associated facilities to ensure media pluralism (Article 5 and Article 6 of Access Directive), standardization and in particular interoperability of digital interactive television services (Article 17 and Article 18 of Framework Directive), co-location and facility sharing (Article 12 of Framework Directive), accounting separation (Article 13 of Framework Directive) and universal service obligations (Universal Service Directive). Supra, note 6.
See, Alexandre De Streel (2003), supra note 10.
See, Article 14 to 16 of Framework Directive, Article 8 of Access Directive and Article 17 of Universal Service Directive. Supra, note 6.
For instance, universal service obligations will not give rise to jurisdiction conflicts between competition authorities and regulatory authorities. The imposition of universal service obligations are not subject to the three-step analysis. Member States has the right to define the kind of universal service obligation it wishes to maintain. In addition, such obligations will not be regarded as anti-competitive per se, provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary for the kind of universal service defined by the member. See, Recital 3 of Universal Service Directive, supra note 6. Therefore, there would be little jurisdictional conflicts between competition authorities and regulatory authorities with regard to universal services.
See, Commission Staff Working Document (816), P 20, supra note 11.
Ibid.
See, Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services, 2002/C 165/03, Note 15.
See, Joachim Scherer (ed.), Telecommunication Laws in Europe, fifth edition in 2005, Tottel Publishing (West Sussex), pp. 3.
See, John Temple Lang (2005), supra note 12.
The Trinko case led the Supreme Court of USA to give interesting guidance to determine whether antitrust rules should be enforced in sectors that are already subject to SSR. The Supreme Court held that the firms subject to SSR would be immune from competition law (“implied immunity” doctrine). The aim of this doctrine is to avoid regulatory decisions being frustrated by conflicting decisions under competition law. See Verizon Communications, Inc. v. Law Offices of Curtis Trinko, LLP, 13 January 2004, 540 U.S. For more comparative analysis on Trinko case vs. Deutsche Telecom case, please see Nicolas Pettit (2004), supra note 4; and also Pierre Larouche (2005), supra note 4.
See, Deutsche Telecommunications AG, supra note 14.
See Council Regulation 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L 1 of 4 January 2003.
See, John Temple Lang (2005), supra note 12.
See, Commission Staff Working Document (817), supra note 9, pp. 16-19.
Ibid, pp. 20-21.
See, 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 service, COM(2006) 334 final, SEC(2006) 816 & SEC(2006) 817, pp. 8-9.
Ibid.
See, Commission Staff Working Document (816), Supra note 11, pp. 19.
See, Commission Staff Working Document (817), supra note 9, pp. 16.
Ibid.
See, John Temple Lang (2005), supra note 12.
See, Alexandre De Streel (2006), supra note 2.
See, Commission Press Release IP/02/1852 of 11 December 2002, “Prices decrease of up to 40% lead Commission to close telecom leased lines inquiry”.
For example, an infrastructure sharing agreement by SMP undertakings in order to establish the next generation network may entail a risk of foreclosure on sites used for installing antennas, masts and other network elements for other competitors, as indicated by Commission Decision, O2 UK Ltd./T-Mobile UK Ltd. of 30 April 2003, OJ L 200 of 7 August 2003; Or taking different economic calculation methods by different institutions may lead to contrary decisions, as indicated by Deutsche Telecom case, supra note 14.
See, e.g., Article 12(2) of Access Directive, supra note 6.
See, Derek Ridyard, Compulsory Access under EC Competition Law – A New Doctrine of ‘Convenient Facilities’ and the Case for Price Regulation, (2004) 11 European Competition Law Review, pp. 669-673.
See, Nicolas Petit (2004), supra note 4.
See, Commission Guideline on Market Analysis, supra note 58.
See, Commission Staff Working Document (817), supra note 9, pp. 21-22.
Ibid, pp. 20-21.
See, Article 3(4) and Article 3(5) of Framework Directive, supra note 6,
See, Alexandre De Streel (2003), supra note 10.
Competition law is mainly based on analysis of price/cost structure, the test of which is seldom taken in the operation of universal service obligations and allocation of spectrum.
For details about the insufficiency of competition law over universal service obligations, please seeJean-Michel Glachant, Why Regulate Deregulated Network Industries?, Journal of Network Industries, 2002, N°3, pp. 297-311; For details about the insufficiency of competition law over spectrum allocation, please see Nils-Henrik M. Von Der Fehr, Modern Telecommunications Regulation: An application to Allocation of Spectrum Rights, accessed on 20th Nov, 2006 and available at:
http://www.pts.se/Archive/Documents/SE/von_Fehr_Modern_Telecom_Regulation_200904.pdf; and also, Damien Geradin and Michel Kerf, Controlling Market Power in Telecommunications: Antitrust vs. Sector Specific Regulation, Oxford University Press (Oxford), 2003, pp. 353-356.
Words added.
See, Case C-320/91 Corbeau ECR I-2533, 4 CMLR 621. See other reference at Case T-260/94 Air Line, , ECR II-997, 5 CMLR 851; Case C-203/96 Chemische Afvalstoffen Dusseldorp BV and Others v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer ECR I-4075, 3 CMLR 873; and Case C-475/99 Ambulanz Glockner v Landkreis Sudwestpfalz ECR I-8089, ] 4 CMLR 726.
See, Case Commission and France v. Ladbroke Racing, Case Irish Sugar v. Commission, and Case Consiglio Nazionale Degli Spedizionieri Doganali, supra note 13.
See, Recital 29 of Authorization Directive, supra note 6.
Ibid, Recital 12.
Ibid, Article 10.
See, Michel Kerf, Isabel Neto and Damien Geradin (2005), supra note 3.
For contributions concerning the substantive difference between SSR and competition law, please see Christian Bergqvist (2005), supra note 2; Damien Geradin and Robert O’Donoghue (2005), supra note 21; John Temple Lang (2005), supra, note 12; and also Pierre Larouche (2005), supra note 4.
See, Commission Guideline on Market Analysis, supra note 58.
See, Article 3(4) of Framework Directive, supra note 6,
See, Nicolas Petit (2004), supra note 12.
Ibid. In the telecommunications sector, in Spain, a number of procedures are organized through legislative measures, i.e. a Royal Decree Law 6/1996 of as replaced by Act 12/1997 of 24 April on the liberalisation of telecommunications. In Finland and in the Netherlands, these issues are dealt with under an agreement/protocol between the competition authority and the NRA.
Ibid. See for instance in the telecommunications sector, the requirements of the law in Italy, Spain or France. Also, NRA may consult NCA when apply competition law concepts within the implementation of their regulatory missions. The regulator must obtain consent of the competition authority to take some decisions or, at least, is under the duty to consultation, in Germany, for the definition of the dominant position and the delimitation of markets.
Ibid. E.g. in France, Italy, Spain. In France, the ART is regularly consulted by the NCA for advices within the context of disputes between competitors. See, for instance, Avis 03-64 of the ART of 14 January 2003 relating to anticompetitive practices by France Telecom, available at www.art-telecom.fr.
Ibid. An example of this can be found in the field of merger control where a competition authority could entrust the monitoring of commitments to the NRA. In the recent Newscorp/Telepiu case, the Commission entrusted the monitoring of the commitments submitted by the parties for obtaining clearance to the Italian telecommunications regulator. See, Case COMP/M.2876 –Newscorp/Telepiù of 2 April 2003 C (2003) 1082 final; Cristina Caffarra and Andrea Coscelli, “Merger to Monopoly: Newscorp/Telepiù”, (2003) 11 European Competition Law Review, pp. 265.
Ibid. Christophe Lemaire, Energie et concurrence: Recherches sur les mutations juridiques induites par la libéralisation des secteurs de l’électricité et du gaz, (2003) Presse Universitaires d’Aix-Marseille, pp. 378. However, the author considers that there is no duty, for the NCA to stay proceedings and to refer the case to the NRA. Two proceedings can thus take place. And Laurence Idot, Règles de concurrence et régulations sectorielles, in La régulation des services publics en Europe, (1998) TEPSA.
|
