Who Controls Polish Transmission Masts? At the Intersection of Antitrust and Regulation

Abstract

This paper will be devoted to the most acute point of intersection between sector specific regulation and the enforcement of competition law – a parallel scrutiny of the market position and behaviour of EMITEL TP, an incumbent infrastructure holder in the Polish broadcasting transmission field, by the national telecoms regulator and the antitrust authority. After presenting the relevant EU background, the discussion will focus on four basic factors that have influenced the relationship between antitrust and regulation in this case. The peculiarities of national legislation transposing the EU liberalisation package will be considered first, followed by the state of competition in Polish telecoms and the potential existence of prohibited market practices. Emphasis will be placed here on the use of the antitrust concept of relevant market definition in the framework of sector-specific regulation. The analysis will continue with an assessment of the differences between the two types of market intervention noted by the authorities in the context of a potential competence dispute. In conclusion, the need will be presented to shift the current focus placed on the separation of antitrust enforcement and regulation, which has made them both ineffective in achieving their purpose, towards that of their combination in order to facilitate the emergence of competition in the Polish broadcasting transmission services field.

Keywords: antitrust enforcement, sector specific regulation, telecoms, market 18, transmission infrastructure, ‘relevant’ market, access to infrastructure, co-operation procedures, procedural intertwining