Reshaping market, competition and regulation in EU utility liberalization: A perspective from telecom

Abstract:

Liberalization in utility sectors faces two legal challenges, namely institutional conflicts between the market mechanism and sector-specific regulation, and conflicts between sector-specific regulation and competition law. The former has long been dealt with by academia and legislation, but the latter attracts comparatively less attention. Recent EU antitrust enforcement in the telecom sector demonstrates acute conflicts between SSR and competition law. While the inclusion of EU competition law in the TFEU establishes its supremacy over telecom regulation, it is worth investigating whether the Commission, using its antitrust power, has encroached on Member States' competence over telecom regulation.

The article finds that the Commission has over-stretched competition rules for regulatory or political purposes, without bringing prominent added value to effective competition when compared with sector-specific regulation. It is suggested to mitigate conflicts through an amended coordination mechanism based on the current Article 7 Procedure.