EU ELECTRONIC COMMUNICATIONS LAW: Competition and Regulation in the European Communications Market

June 30, 2004

Even by the standards of European law, EU Electronic Communications Law is extremely young. Within the case law of the European Court of Justice, it is only 13 years since the court confirmed the power of the European Commission to introduce competition in the market for telecommunications terminals[i], and ruled that regulatory functions could not be granted to an undertaking where such functions would favour the undertaking concerned[ii]. Until 1998, monopoly provision of telephony services was the norm in almost all Member States.

Now the position of the former monopolists is under challenge from new entrants as Member States have liberalised their telecommunications markets, and the result has been rapid growth in a market already estimated to be worth 250 billion euros annually.

How far is it possible to regulate and manage such a diverse and volatile market? The EU’s new framework for regulating electronic communications was only adopted in 2002. In essence, it provides for regulatory obligations to be imposed on market participants on the basis of competition law principles, using the principle of market dominance to identify the undertakings likely to require regulatory restraint. Most practitioners are just beginning to get to grips with its implications at both the national and the EU level, and may have to take account of the wider international framework. So this is a timely and invaluable book.

The authors are extremely well-placed to deliver an authoritative treatment of this complex and difficult new area. Peter Rodford is head of unit at the European Union’s Directorate General for the Information Society, with particular responsibility for the implementation of the European Regulation on electronic communications. Paul Nihoul holds the Jean Monnet Chair on the European Information Society at the University of Louvain, Belgium and is also Professor of Law at that university and at the University of Groningen in Holland.

The authors expect practitioners to begin with rules based in their national law, but quite rightly advise that they should always and systematically examine European law as a supplementary step. The rules at national level should be identical to those which apply at the European level, but the primacy of European law must always be borne in mind. Looking ahead, the future is likely to see global convergence towards the European and American models.

Against that general background, the authors have compiled a clear and logical structure, which covers the subject matter clearly and comprehensively. After explaining the current regulatory framework and institutional organisation of the sector in Chapter 1, they go on in Chapter 2 to introduce the applicable rules, including useful discussion of regulatory principles of more general application, such as objectivity and proportionality. In Chapters 3 and 4, they then consider the main issues likely to confront undertakings, such as access to facilities, from the perspective of specific electronic communications regulation, and then with regard to general competition law. In Chapter 5, they address the important issues relating to universal service, public service and services of general interest. Chapter 6 focusses on litigation and dispute resolution, but with a distinctly practical emphasis. This is likely to be particularly useful to practitioners who are just beginning to feel their way in this field. Chapter 7 then touches on some specific aspects, such as spectrum policy, rights granted to users and the rules applicable to broadcasting.

The authors explain that they set out to provide a thorough overview from the practitioner’s viewpoint, and they largely succeed. They rightly emphasise the issues of access and inter-connection, and the problems likely to arise concerning universal service.

For anyone interested in practice in this area, Nihoul and Rodford is likely to prove an invaluable addition to your library. It is already one of the books I want to have close to hand by my desk.

Glen Davis is a commercial barrister at 3/4 South Square, Gray’s Inn. He is a trustee/director of SCL and chairs the SCL Media Board.

[i] France v Commission Case 202/88 [1991] ECR I-1223

[ii] Régie des télégraphes et des telephones v GV-Inno-BM Case C-18/88 [1991] ECR I-5941