A review of the electronic communications regulatory framework : subsidiarity vs centralisation

Abstract

This thesis examines the role of the principle of subsidiarity in the development of the current electronic communications regulatory framework. In the introductory chapter the regulatory developments in the telecommunications sector (later on the electronic communications sector) up to the introduction of the 2002 Electronic Communications Framework are examined. Furthermore Chapter 1 also explains how the nature of this sector was transformed from a merely monopolistic environment with the fixed incumbent in Member States being partially or wholly owned by the government, to a liberalized market whereby the European Union is still struggling to attain effective competition in the various markets falling within the ambit of electronic communications regulation. It emphasizes not only on particular legislative changes, but also on the rationale behind them and the nature of the results such legislative changes where intended to bring about (and which were not necessarily achieved). This Chapter introduces the principles of subsidiarity and centralization in general in order to highlight the rationale behind these principles so as to give the reader a better understanding of the reason why other topics are later on discussed in the other Chapters. The second Chapter discusses the essential requisites of the principle of subsidiarity in European Union law and the developments and/ or importance of this principle in electronic communications. The need for regulation and the development of National Regulatory Authorities are also discussed throughout this Chapter. Chapter 2 proceeds with focusing on the independence of National Regulatory Authorities and theimportance of this required characteristic in relation to the principle of subsidiarity and delegation of powers by the European Union to Member States. Chapter 3, attempts to illustrate how the subsidiarity principle features in the Directives vis-a-vis the regulatory agencies, groups and/ or authorities which are created by the EU via the Directives and the method as to how the increase in delegation of powers discussed in Chapter 2 may be a result of the subsidiarity principle. A description of the functions and the scope of the European Regulatory Group and the International Regulators Group, the Commission's role, if any, in these groups and the extent of subsidiarity resulting from the creation of the European Regulatory Group is attempted. The possible reasons for the position taken by the Cornrnission with proposing a new supranational regulatory authority and how the said supranational regulatory authority could possibly be the result of inconsistent application of the Directives, lack of harmonisation or even the result of the failure to attain the much desired effective competition status through liberalisation of the market, in time for the 2006 review, follow. The next topic in this Chapter is that of national competition authorities (NCAs) and the possible concurrent jurisdiction of NRAs and NCAs. Chapter 4 gives a generic analysis of the struggle for power between Member States and the European Union as a supranational authority per se and later on focus more directly on the supranational regulatory authority for telecornrnunication as proposed in the most recent legislative reform in this sector. The conclusion then highlights the more important implications that emerge through the discussion in the thesis.