The Antitrust Activism of the European Commission in the Telecommunications Sector

P. Lowe and M. Marquis (eds), European Competition Law Annual 2012: Competition, Regulation and Public Policies, Hart, 2014, 189-208.

20 Pages Posted: 3 Oct 2014 Last revised: 9 Oct 2014

See all articles by Alexandre de Streel

Alexandre de Streel

University of Namur; Centre on Regulation in Europe (CERRE)

Date Written: June 1, 2014

Abstract

This paper analyses the role of the European Commission in taking cases of abuse of dominance in the telecommunications sector since its liberalisation in 1998. The argument is that the Commission has played a very active antitrust role, in particular at the beginning of the liberalisation, and that its activism was blessed by the EU Courts. Indeed, the Courts see competition law as a complement, and not a substitute, to regulation. They have set a relatively low threshold for proving margin squeeze, the most common form of abuse in telecommunications; and they have allowed wide discretion to the Commission to deal with the inaction or failures of national regulatory authorities (NRAs).

It is further submitted that such activism was justified in the early days of liberalisation when the telecommunications markets were still very concentrated, and when the NRAs were in their infancy and sometimes captured. However, this activism is less justified today because, on the one hand, competition in the sector has increased, and on the other hand most anticompetitive practices can be, and should be, addressed by the NRAs. Today, the Commission should instead concentrate on consolidating the expertise and the independence of the NRAs, and it should rely on its extensive oversight of NRA decisions to prevent violations of the competition law.

The paper is divided into five sections. The first section reviews the main EU cases of abuse of dominance in the various telecoms segments. The next three sections deal with the main substantive and institutional issues raised by those cases. The second section describes the approaches of the Commission and the EU Courts on the relationship between competition law and sector-specific regulation. The third section analyses the tests established by EU Courts to control margin squeeze and refusal to deal in post-liberalised markets. It also compares them with the tests proposed by the Commission in its Guidance Paper on exclusionary abuses. The fourth section analyses the different uses made by the Commission of its antitrust powers in the telecoms sector, and their institutional implications. The fifth section concludes the paper.

Keywords: EU Regulation, Telecoms Regulation, EU Competition Policy, Antitrust in Telecoms

JEL Classification: K21, L4, L41, L43, L5, L50, L52, L96

Suggested Citation

de Streel, Alexandre, The Antitrust Activism of the European Commission in the Telecommunications Sector (June 1, 2014). P. Lowe and M. Marquis (eds), European Competition Law Annual 2012: Competition, Regulation and Public Policies, Hart, 2014, 189-208., Available at SSRN: https://ssrn.com/abstract=2503830 or http://dx.doi.org/10.2139/ssrn.2503830

Alexandre De Streel (Contact Author)

University of Namur ( email )

8 rempart de la vierge
Namur, 5000
Belgium

Centre on Regulation in Europe (CERRE) ( email )

Av Louise 475/10
Brussels, 1050
Belgium

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