Competition Law and Regulation in European Telecommunications

Pierre Larouche is a Professor of Law at Tilburg University. is Reader in Law at University College London

The successive regulatory models: the starting model (until 1990); the regulatory model of the 1987 green paper (1990-1996); the transitional model of the 1992 review and the 1994 green paper (1996-1997); the fully liberalized model (1998-); conclusion. The "hard core" of regulation and Article 86 EC: the integration of Articles 86 and 95 EC in the run-up to liberalization - the starting positions, the compromise of December 1989, the legal assessment of the ECJ, the use of Article 86(3) EC as a legal basis after 1990, the integration of Articles 86(3) and 95 EC in an original legislative procedure, concrete examples; the use of article 86(3) EC in a liberalized environment - Article 86(1) EC, Article 86(2) EC; conclusion. The new competition law as applied in the telecommunications sector: sources and epistemology - sources of EC competition law, a model for the legitimacy of EC competition law, the 1991 guidelines and 1998 access notice; relevant market definition - substitutability patterns, relevant markets in a network-based industry, resulting approach and assessment of the decision practice of the Commission; substantive principles - refusal to deal and the "essential facilities" doctrine, discrimination, pricing, cross-subsidization and accounting, unbundling; competitive assessment: general principles concerning multi-market cases, the competitive assessment in "Atlas", the competitive assessment in "BT/MCI II"; procedural and institutional framework: standard elements of the procedural and institutional framework - procedural and institutional framework by source, relationship between those frameworks; modifications resulting from competition law as applied in the telecommunications sector - integration of EC competition law and national sector-specific regulation, use of EC competition law to compensate for gaps in sector-specific regulation; resulting procedural and institutional framework; conclusion. Rethinking sector-specific regulation: the limits of competition law - the gaps of competition law, the challenges for competition law, the downsides of competition law, the legitimacy of using competition law as the core of EC telecommunication policy; the case for sector-specific economic regulation - the terms of the case, the dual role of telecommunications, the core regulatory mandate, the balance with competition law; sector-specific regulation at the EC level - the need for EC sector-specific regulation, current status, legal basis, institutional implications; conclusion. Postscript - the 1999 review.