Public v. Private Enforcement in the Electronic Communications Sector

Abstract

The 2002 Common Regulatory Framework diversifies remedies to competition problems according to the market strength of telecoms providers. One set of remedies is particularly targeted at posing constraints on (pre-)existing significant market power (SMP) in the relevant market. Those remedies are provided for in the Access and Interconnection Directive and in ascending order of intrusiveness they are transparency obligation, non-discrimination obligation, accounting separation, access obligation and price control. A second set of measures are meant to apply to all telecoms providers irrespective whether they have market power or not. This set of measures is introduced by the Universal Service Directive (USD).

This article provides a comparison between sector-specific and competition law remedies and will examine the regulatory configurations in which either of the two regulatory regimes will give best results (Section A). Having analysed the likely challenges for SMP remedies, it discusses the potential of number portability (NP) under the USD for enhancement of the state of competition (Section B). Remedies taken under a co-regulatory procedure are presented in Section C. Challenges to private enforcement of the competition rules in the telecoms sector are put forward and respective solutions to possible impediments to it are suggested in Section D. Section E attempts to outline the predominant standard against which public and private enforcers will define harm from an antitrust violation.