竞争与管制的冲突
Conflict between Competition law and Regulation in Electronic Communications Sector: Analysis of the Institutional Framework
侯利阳
【摘要】This paper intends to focus on the institutional conflicts between the Commission and NRAs. First, it will briefly examine the inherent contradictions between competition law and regulation in electronic communications sector. Subsequently, focus will brought into the institutional conflicts between the Commission and the NRAs, and the legal gaps of the 2002 regulatory framework concerning this point will be criticized.
【关键词】竞争法，管制，冲突，电信行业
【全文】
The 2002 Directives in electronic communications sector raise inherent tensions between competition law and regulation, and incidentally produce institutional conflicts between the European Commission (the Commission) and the National Regulatory Authorities (NRAs). Although Article 7 of Framework Directive and its recommendation have made great contributions of legal certainty to this issue, the residual conflicts were still demonstrated by the significant case Deutsche Telecom.
This paper intends to focus on the institutional conflicts between the Commission and NRAs. First, it will briefly examine the inherent contradictions between competition law and regulation in electronic communications sector. Subsequently, focus will brought into the institutional conflicts between the Commission and the NRAs, and the legal gaps of the 2002 regulatory framework concerning this point will be criticized.
I. Substantive Tensions between Competition law and Regulation
The main feature of the reform within the 2002 Directives is to introduce antitrust methodology into sector specific regulation in electronic communications sector. The underlying reason would be that regulation and competition law will gradually converge at the same point where the process of deregulation and liberalisation terminate. However, such bifurcated approach within the 2002 Directives, i.e. liberalising electronic communications sector by competition law and regulation respectively, does not take the inherent contradictions between competition law and regulation into full consideration, which undermines the practicability of this approach.
