The Three Criteria Test: A Critical Assessment

20 Pages Posted: 2 Dec 2008

See all articles by Liyang Hou

Liyang Hou

Shanghai Jiao Tong University (SJTU) - KoGuan Law School

Date Written: December 1, 2008


The three criteria test to define new relevant markets is widely considered to contribute to the development of the EU electronic communications regulation. However, the application of this test has not been fully explored. This paper first examines the application the three criteria test based on the European Commission's Recommendation on relevant markets, the European Regulators Group's Report on Guidance on the application of the three criteria test and the European Commission's decisions under Article 7 of the Framework Directive. Then, it reveals two negative consequences caused by the legal uncertainties related to the three criteria test: (1) the first and the second criteria can be easily evaded by national regulatory authorities and (2) the third criterion cannot be analysed on a case-by-case basis. In order to make the three criteria functional, it finally suggests several proposals.

Keywords: The Three Criteria Test, Significant Market Power, Electronic Communications Regulation

Suggested Citation

Hou, Liyang, The Three Criteria Test: A Critical Assessment (December 1, 2008). Available at SSRN: or

Liyang Hou (Contact Author)

Shanghai Jiao Tong University (SJTU) - KoGuan Law School ( email )

Huashan Road 1954
Xuhui District
Shanghai, Shanghai 200030
+86-21-6293-4632 (Phone)


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