Article 82 EC and access to essential facilities in EC telecommunications:: the interaction between competition rules and sector-specific regulation

Abstract

The liberalization of the EC telecommunications market has, from the beginning, been based on a dual-regime of sector-specific regulation and competition law. One of the areas where the interrelation between these two sets of rules is most obvious is that of access to telecommunications networks. The material in this thesis is up to date as of the 31st July, 2004. This thesis examines the Essential Facilities Doctrine (EFD) as the competition law principle which deals with access of new market entrants to established facilities and, in the case of telecommunications, networks. This examination leads to the conclusion that if there is an EFD in EC law, it should be applied with extreme caution. The thesis then examines the New Regulatory Framework for Electronic Communications, with a particular emphasis on the framework for access and interconnection, and concludes that EC competition law has acquired a prevailing role in the context of regulation of telecommunications. The reform of regulation of electronic communications that is so profoundly inspired by competition law principles, marks a previously unattained level of mutual interaction between regulation and EC antitrust law. Concerning the viability of this dual regime of competition law and regulation, the thesis comes to the conclusion that before sustainable competition has been established, a certain degree of sector-specific regulation has to be upheld. Phasing-out sector-specific regulation too early by relying solely on competition law would create considerable risks for both new entrants and incumbent operators.