Sector specific regualtion and competition law in electronic communications litigation

Abstract

This dissertation attempts to establish solutions to the problems faced by undertakings in relation to sector specific regulation and competition law in the electronic communications field and whether their co-existence is necessary. It furthermore gives plausible solutions as to how they can better co-exist in order to avoid clashes between the two regimes and inconsistencies in their application. In Chapter 1 readers shall be given a brief historical overview in order to build the basis for a better understanding of the following Chapters. In this Chapter a brief discussion shall follow as to how competition law has been at the core of sector specific related Directives in the European Union in order to attain the objectives of the Treaties even in the electronic communication field due to being considered as a highly important sector. The Chapter illustrates the current state of affairs in relation to the concurrent jurisdiction of national regulatory authorities and national competition authorities which emanates automatically via the concurrent application of sector specific regulations and competition law and the reasons why problems arise with both the concurrent application of the two regimes and concurrent jurisdiction of the two authorities. Chapter 2 incorporates a comprehensive literature review of a number of papers written by authors which have been a source to this dissertation. This Chapter attempts to illustrate opinions of the chosen authors as to how the concurrent application of the two regimes should take place and the problems which are in existence as a result of this concurrent application. This Chapter also discusses whether in the chosen authors’ opinion, there is a possibility of ever excluding completely sector specific regulation and arguments brought forward by the said authors, in favour and against. In order to emphasise more the position in the European Union, Chapter 3 then analyses the Directives forming the Regulatory Framework for electronic communications in the European Union. This analysis illustrates the salient parts of the said Directives and provides ongoing comments about the misinterpretation that the various recitals and articles in the Directives could have potentially created and other misinterpretations which have actually been brought before the CJEU, in particular with regards to transitional provisions. This Chapter, therefore, does not simply illustrate the sector specific regulation – competition law relationship, but also the difficulties which have been dealt with by the national courts and the Court of Justice of the European Union, when these could have potentially been resolved in a smoother manner. The solution to the said misinterpretations by Member States in the transposition of the Articles of the Directives are discussed in Chapter 3 where the importance of more competition law-based Directives, hence limiting the amount of litigation is brought to the forefront. The recent amendments made to the Framework Directive are also discussed in this Chapter. In Chapter 4 case law of both the ECJ (or CJEU) and the United States Courts in relation to whether or not competition (antitrust) law should be applicable when there is sector specific regulation in place, such as in the case of electronic communications, is analysed. This façade of the argument is very important in particular because it leads the reader to the conclusions in Chapter 5 relating to the need to exclude clashing judgments and interpretation of the law due to concurrent application of sector specific regulation and competition law. The various doctrines which have emanated from case law from the two sets of the Courts (EU and US) are therefore examined. The effect, if at all, of these judgments is also discussed. In Chapter 5, a list of necessary changes is proposed. It concludes that various changes need to be made to the current system, including the Directives themselves. Another vital change shall be a change in the premise that the electronic communications sector can in the long run, be governed solely by the competition law regime. Once a fully competitive market whereby only competition law is used to control the sector cannot be attained, the only way of attempting to avoid the dangers of continuous varying interpretations and new doctrines being created by the Courts in respect of a field in which special expertise is essential to determine matters, is that of incorporating ex ante regulation and ex post control in one set of legislation being based on the same premises and having the same purposes and aims.