The Coming of Age of EU Regulation of Network Industries and Services of General Economic Interest

44 Pages Posted: 24 Jun 2010

See all articles by Leigh Hancher

Leigh Hancher

Tilburg Law School; Tilburg Law and Economics Center (TILEC)

Pierre Larouche

Université de Montréal; Center on Regulation in Europe (CERRE)

Date Written: June 22, 2010

Abstract

This paper is a contribution to the 2nd edition of Craig and de Búrca, The Evolution of EU Law. It highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been – and still is – in the process of moving from one legal paradigm to another. The first paradigm is more traditional, static, formalistic and self-contained (mono-disciplinary). Its hallmark is the use of legal definitions and concepts to create categories in which phenomena are placed, by way of pigeonholing or labeling, and to which consequences are attached. It was more appropriate in earlier times when EU law was concerned with establishing market access and realizing the Internal Market. The second paradigm is more dynamic, integrative and inter-disciplinary. Its hallmark is the use of general guidelines and principles to assess specific situations in a wider sectoral setting, with progressive refinement, until the point where a conclusion can be reached and consequences attached. It leads to ‘managed competition’, where EU law integrates other objectives besides market access.

As for substantive law, EU electronic communications law, since 2002, presents the best – albeit not complete – example of the new paradigm, with its reliance on technological neutrality and economic analysis. EU energy law has not gone as far down that path. Interestingly, the ECJ judgment in Altmark can be seen as an attempt to steer the law concerning SGEIs away from formalism, towards the new paradigm. However, developments following Altmark show that the other institutions have not fully followed the ECJ.

As for institutions, EU electronic communications and energy law have followed a similar path, away from formalistic separations (i) between EU and Member State institutions, (ii) along national borders or (iii) between regulation and competition law. At the same time, the separation between the regulatory authority and the national legislative and executive powers has been strengthened. The policing of SGEIs under Article 106(2) TFEU would benefit from following a similar institutional path.

Keywords: Regulation, network industries, services of general economic interest, Altmark, Art.106 TFEU, ACER, BEREC

JEL Classification: K2, K21, K23

Suggested Citation

Hancher, Leigh and Larouche, Pierre, The Coming of Age of EU Regulation of Network Industries and Services of General Economic Interest (June 22, 2010). TILEC Discussion Paper No. 2010-024, Tilburg Law School Research Paper No. 014/2010, Available at SSRN: https://ssrn.com/abstract=1628573 or http://dx.doi.org/10.2139/ssrn.1628573

Leigh Hancher (Contact Author)

Tilburg Law School

Tilburg, 5000 LE
Netherlands

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Pierre Larouche

Université de Montréal ( email )

Montreal, Quebec H3T 1B9
Canada

Center on Regulation in Europe (CERRE) ( email )

Rue de l'Industrie 42
Brussels, 1040
Belgium

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