Between regulation og deregulation : studies on the limitations of competition law and Its ambiguous application to the supply of electricity and telecommunications in the EU / Christian Bergqvist.
2016
K3850 .B46 2016 (Map It)
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Details
Title
Between regulation og deregulation : studies on the limitations of competition law and Its ambiguous application to the supply of electricity and telecommunications in the EU / Christian Bergqvist.
Published
København K : Jurist og Økonomforbundets Forlag, 2016.
Copyright
©2016
Call Number
K3850 .B46 2016
Edition
1. edition.
Cover Title
Between regulation and deregulation
ISBN
9788757436419 (print)
875743641X (print)
9788771980059 (e-book)
875743641X (print)
9788771980059 (e-book)
Description
373 pages : illustrations ; 23 cm
System Control No.
(OCoLC)957139304
Summary
"It seems to be generally accepted by academics and practitioners that competition law is ill-equipped to deal with the complex world of telecommunications services and electricity due to a number of unspecified shortfalls making the scope for applying it to these sectors limited. This book demonstrates that this perception is manifestly wrong. It is not that competition law should not be considered subject to limitations, but more in respect of the limited scope for its application to the delivery of electricity and telecommunications services as this would not do justice to the very active role played by competition law. This book presents the studies on the limitations of competition law and its ambiguous application to the supply of electricity and telecommunications in the EU."-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references.
Record Appears in
Table of Contents
Foreword
13
ch. I
Market power and competition
15
1.
use of exclusive rights in response to the market power problem
15
2.
Market power and competition
16
2.1.
Market power creates welfare loss and foreclosure
16
2.2.
manifestation of market power is well known
17
3.
Market power and the supply of electricity and telecom
21
3.1.
enhanced level of market power
21
3.2.
Limited ability to contain market power
25
3.3.
Strong barriers for competition
26
3.3.1.
Barriers and the supply of telecommunications
26
3.3.2.
Barriers and the supply of electricity
29
3.3.3.
barriers might not be that unknown
32
4.
Competition law contributing to the market opening
32
ch. II
concept of dominance
37
1.
Outline of the chapter
37
2.
single dominance doctrine
37
2.1.
clear foundation of our perception is lacking
40
2.2.
applicable doctrine dislodged from market shares
42
2.2.1.
Competition barriers
44
2.3.
Super dominance - when size does matter
46
2.4.
Summary of single dominance and market power
48
3.
Oligopolistic dominance
49
3.1.
Oligopolistic competition - partly uncharted waters
50
3.1.1.
Coordinated effects
50
3.1.2.
Non-coordinated effects
51
3.1.3.
Summary of coordinated and non- coordinated effects
52
3.2.
From single to joint dominance in oligopolistic markets
53
3.2.1.
Older practice indicated little room for a joint dominance concept
53
3.2.2.
Airtours and the Commission's great leap forward
54
3.2.3.
Airtours and later practice
55
3.3.
Summarising joint dominance
56
4.
Vertical market power - Dominance and multi markets
57
4.1.
Vertical exercise of market power - a legal characteristic
57
4.2.
Leverage and the Court's approach
59
4.2.1.
From Tetra Pak (II) to Tetra Laval/Sidel
59
4.2.2.
Microsoft I - foreclosure or leverage?
61
4.3.
Summarising vertical market power
62
5.
Temporary dominance
62
5.1.
Limited theory and practice
63
6.
concept of dominance and market power
64
ch. III
concept of Abuse
67
1.
Outline of the chapter
67
2.
Market opening and the obligation to liberalise
68
2.1.
Article 106(1)
69
2.1.1.
Special and exclusive rights
69
2.1.2.
Article 106(1) and exclusive rights
70
2.2.
Article 106(2) and its consequences
71
2.3.
Article 106(1) or (2) and the shifting between them
72
3.
concept of abuse
73
3.1.
Exploitative abuse
74
3.2.
Exclusionary abuse
75
3.3.
Objective justifications
81
3.3.1.
Meeting competition
82
3.3.2.
Efficiency defence
82
3.4.
aggravated standard of abuse
84
4.
Abusive behaviour targeting the direct market
86
4.1.
Excessive & unfair pricing
87
4.1.1.
Excessive pricing in practice
87
4.1.2.
Costs and the unfair profit
88
4.1.3.
Price comparison
91
4.1.4.
Excessive pricing and electricity and telecom
92
4.1.5.
Summary of excessive pricing
95
4.2.
Artificially low prices and predation
95
4.2.1.
Predatory pricing in practice
97
4.2.2.
Calculating costs
100
4.2.3.
Other cases contributing to the concept
102
4.2.4.
Predatory pricing and electricity and telecom
104
4.3.
Single branding arrangements
105
4.3.1.
Single branding and economies of scale
106
4.3.2.
Single branding and electricity and telecom
106
4.3.3.
Summary of single branding
108
4.4.
Cross-subsidising
109
4.4.1.
Cross-subsidising and the delivery of electricity and telecommunication
110
5.
Abuse capitalising on the vertical integration
111
5.1.
Margin squeeze
113
5.1.1.
Margin squeeze and early practice
115
5.1.2.
Mature practice - Deutsche Telekom and Telefonica
116
5.1.3.
Other cases contributing to the margin squeeze concept
122
5.1.4.
Summarizing on margin squeeze
125
5.2.
Tying & bundling
129
5.2.1.
Tying/bundling and the delivery of electricity and telecommunication
131
5.2.2.
unclear practice on bundling and tying
132
5.3.
Discrimination
132
5.3.1.
Theory and practice and their many ambiguities
134
5.3.2.
Discrimination and the delivery of electricity and telecommunication
138
5.3.3.
problem of condemning discrimination
139
6.
Refusal to supply and shared access to the infrastructure
140
6.1.
foundation for a legal obligation for shared access
142
6.1.1.
Shared access and potential sub-doctrines
143
6.1.2.
non-legal arguments against shared access
144
6.2.
Commission's attempt to summarise a doctrine
144
6.2.1.
Access Notice and its relationship to practice
145
6.2.2.
Other notable Commission cases
149
6.3.
Courts' contribution and the Commission's follow-on
151
6.3.1.
From Tierce Ladbroke to IMS
151
6.3.2.
Microsoft I, II, Sot Leos and later cases
156
6.4.
Practice and the requested standard for shared access
159
7.
Summary on market power and abuse
163
ch. IV
limitations of competition law
165
1.
Outline of the chapter
165
2.
limits of competition law
167
2.1.
Ideological limitations
168
2.2.
Limits dictated by competition law
170
2.2.1.
Reviewing excessive pricing
170
2.2.2.
Reviewing vertical foreclosure
171
2.2.3.
Reviewing the sanctions
172
2.2.4.
many ambiguities in the concept of abuse
173
2.3.
Limits dictated by the markets
175
2.4.
Underdeveloped legal doctrines and standards
178
2.5.
risk of pollution
179
3.
contribution from competition law
181
ch. V
sector regulation
183
1.
Outline of the chapter
183
2.
purpose of sector regulation and its characteristics
184
2.1.
Restructuring for competition
185
2.2.
Non-discriminatory access
186
2.3.
Implementing vertical and horizontal splits (unbundling)
189
2.4.
Securing universal service
191
2.5.
Protecting competition
191
3.
Legal characteristics of sector regulation
192
4.
Sector regulation and competition law
193
4.1.
limitations of competition law and the need for sector regulation
194
4.2.
contribution from competition law
196
5.
Why competition and the limitations of sector regulation?
196
5.1.
Sector regulation addressing the risk of market failure
196
ch. VI
EU models for regulating telecom
199
1.
Outline of the chapter
199
2.
PTT Model - a system of exclusive and special rights
199
2.1.
PTT-model and competition law
201
2.2.
system errors of the PTT model and the Commission's dilemma
203
3.
1987 Green Paper Model
204
3.1.
Implementing the Green Paper
204
3.1.1.
Service Directive and ONP-Frame Directive
205
3.2.
Competition law and the 1987 Green Paper Model
207
3.2.1.
Competition law limits cooperation agreements
208
3.3.
Unfolding the 1987 Green Paper Models
210
3.3.1.
National sector regulator (NRA) - Independent sector authorities
210
3.3.2.
Privileged undertakings and reserved services
211
3.3.3.
Regulating market access
212
3.3.4.
Shared access to the infrastructure
213
3.3.5.
Accounting unbundling and a few non- discrimination obligations
214
4.
Full Liberalization Model
215
4.1.
Implementing full liberalisation
216
4.1.1.
Later adjustments to the Full Liberalization Model
217
4.2.
Competition law and the Full Liberalization Model
217
4.2.1.
Access Notice and the (few) cases
218
4.2.2.
Sector Inquiries
220
4.2.3.
concentrations and implied problems
221
4.2.4.
Competition law as a sledgehammer
222
4.2.5.
use of Article 106(1) post liberalisation
224
4.3.
Unfolding the Full Liberalization Model
224
4.3.1.
Developing national regulatory authorities
225
4.3.2.
Market access - Licensing Directive
226
4.3.3.
Adjusting the ONP Frame - Significant Market Power
226
4.3.4.
Shared access to the infrastructure
227
4.3.5.
Accounting unbundling and non-discrimination
230
4.3.6.
Universal service
231
5.
99 Review Model
233
5.1.
Drawing up a new legal framework
233
5.1.1.
Gradual translation and a new role for the Commission
235
5.1.2.
Later adjustments to the 99 Review Model
235
5.2.
Competition law and the 99 Review Model
237
5.2.1.
risk of a foreclosure in case law
239
5.2.2.
Few problems with the concentrations
241
5.2.3.
Competition law and sector regulation and its limits
244
5.2.4.
New sector inquiries
246
5.2.5.
Competition law in a quasi-regulatory role
247
5.3.
Unfolding the 99 Review Model
249
5.3.1.
Market access
249
5.3.2.
NRAs and their tasks
250
5.3.3.
Market analysis and ex ante regulation
252
5.3.4.
SMP and effective competition
253
5.3.5.
SMP toolbox and shared access to the infrastructure
255
5.3.6.
Other forms of shared use
257
5.3.7.
Accounting unbundling and non-discrimination
258
5.3.8.
Universal service
259
6.
EU telecom models and competition law
260
6.1.
Competition law and sector regulation
262
6.2.
Competition law and its ambivalent relationship with itself
268
ch. VII
EU models for regulating electricity
271
1.
Outline of the chapter
271
2.
Utility Company Model
271
2.1.
Utility Model and competition law
272
2.2.
missing system failure of the Utility Model
273
3.
First Electricity Model
274
3.1.
slow implementation of the Energy Working Paper
276
3.2.
Competition law and the First Electricity Model
278
3.2.1.
Supporting the First Electricity Directive
279
3.2.2.
more normal application?
284
3.3.
Unfolding the First Electricity Model
286
3.3.1.
National Regulatory Agency
286
3.3.2.
Market access
287
3.3.2.1.
Eligible costomers
288
3.3.2.2.
Production of electricity
289
3.3.2.3.
Dispatching
290
3.3.3.
Shared access to the infrastructure
290
3.3.3.1.
New infrastructure
292
3.3.4.
Unbundling the sector
293
3.3.5.
Public Service Obligations
294
4.
Second Electricity Model
295
4.1.
Implementing the Commission proposal
295
4.2.
Competition law and the Second Electricity Model
296
4.2.1.
Competition law in quasi regulatory role
297
4.2.1.1.
EDF and the French "problem"
297
4.2.1.2.
EDF's acquisition sets the standards
299
4.2.2.
One horizontal and three vertical mergers
300
4.3.
Second Electricity Model
303
4.3.1.
National Regulatory Agency
303
4.3.2.
Market access
304
4.3.2.1.
Production of electricity
304
4.3.2.2.
Dispatching
305
4.3.3.
Shared access to the infrastructure
305
4.3.3.1.
Derogations
307
4.3.4.
Unbundling
307
4.3.5.
Public Service Obligations
308
5.
Third Electricity Model
309
5.1.
Implementing the Commission proposal
310
5.2.
Competition law and the Third Electricity Model
312
5.2.1.
sector Inquiry
312
5.2.2.
Competition law in quasi regulatory role
314
5.2.2.1.
Ownership unbundling through the backdoor
315
5.2.3.
somewhat lose concept of dominance
317
5.2.4.
more normal application?
318
5.3.
Third Electricity Model
320
5.3.1.
National Regulatory Agency
320
5.3.2.
Market access
322
5.3.2.1.
Production of electricity
323
5.3.2.2.
Dispatching
323
5.3.3.
Shared access to the infrastructure
324
5.3.3.1.
Derogations
325
5.3.4.
Unbundling the sector
326
5.3.5.
Public Service Obligations
330
6.
EU electricity models and competition law
331
6.1.
Competition law and sector regulation
332
6.2.
Competition law and its ambivalent relationship with itself
338
6.2.1.
From unusual to unexplainable and perhaps undefendable
339
ch. VIII
Competition law and sector regulation
341
1.
Outline of the chapter
341
2.
sector framed competition law
341
2.1.
real content of sector regulation
342
2.2.
ambiguous role of competition law
344
2.2.1.
roles allow overlapping competences
344
2.2.2.
overlaps create areas of conflicts
345
2.2.3.
conflict might lead to uncoordinated decisions
348
2.3.
practical priority rule formulated by the Commission
350
2.4.
Formulating a priority rule requires a prudent balancing
352
2.5.
Does the Commission respect the priority rule?
354
3.
pollution of competition law
354
3.1.
Doctrines are influenced by the sector and the Commission's approach
355
3.1.1.
direct influence
356
3.1.2.
indirect influence
358
3.2.
influence embracing the core of competition law
358
3.3.
Would the influence have been stronger without sector regulation?
359
3.4.
Sector regulation protects competition law against it self
363
4.
Reframing the relation of competition law and sector regulation
363
Table of Cases
367