A Study on the Regulation of Significant Market Power in EU Electronic Communications Law

• Main Authors: Hao-Chun Tai, 戴豪君
• Other Authors: Dominique T. C. Wang
• Format: Others
• Language: zh-TW
• Published: 2010
• Online Access: http://ndltd.ncl.edu.tw/handle/20883081322046508942

博士 === 淡江大學 === 歐洲研究所博士班 === 98 === This dissertation focuses on the regulation of significant market power (SMP) in the European Union (EU) electronic communications law. Ever since the phenomenon of digital convergence in 1990’s, there have been lots of reforms and key developments in the EU electronic communications law. This study discusses the SMP regulatory framework linking sector-specific regulation and general competition law in a novel way. It gives a general presentation of the imposition of remedies (e.g. behavioural remedies, structural remedies) upon undertakings with SMP. This dissertation hoped that can provide lessons to be learned from the SMP regulatory framework of European Union. There are six-chapter. Chapter One outlines the motive and purpose, limitation and scope of the study. It discusses the sources of electronic communications law and analyzes “Network Layers Mode” theory in EU. Chapter Two focuses on the communications regime set up in 2002 and the reforms in the new package of rules for 2009 Europe''s electronic communications networks and service. Furthermore, it discusses the relationship between electronic communications law and competition law, the difference of the imposition of ex-ante and ex-post regulation, and the dual regulatory approaches. Chapter Three defines the relevant product and service markets within the electronic communications sector and analyzes ex ante regulation on specific markets by three criteria tests. Moreover, it discusses how to determine SMP in each specific market. By examining cases and theories related to SMP in competition law under the EU regulatory framework for electronic communications networks and services, it tries to clarify the concept of SMP in its three categories of single dominance, joint dominance, and monopoly leveraging respectively. Based on share competence and principle of subsidiary in EU law, it points out how member states and EU cooperate by applying the Article 7 procedure. In Chapter Four, according to the rule of asymmetrical regulation, it discusses the NRA imposes on the SMP undertakings the appropriate behavioural remedies chosen from the list of options provided in the Access Directive for wholesale markets and in the Universal Service Directive for retail markets. By using relevant cases and theories, it expounds the new structural remedies, functional separation, and voluntary separation in the 2009 Access Directive. In Chapter Five, it argues that the introduction of asymmetric regulation on “Dominant Market Player” in the Telecommunication Act of Taiwan is controversial and problematic. Accordingly, the draft of “Communications Regulator Act” proposed by the National Communications Commission has adopted several provisions in order to cope with the significant market position problems. As the conclusion, it suggests lessons that may be learned from the EU electronic communications legislation and its implication experience. Chapter Six briefly summarizes the proposition in each chapter and concludes the whole study.