DRAFT Towards a more tailor made approach

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- DRAFT -Towards a more tailor made approach

• Nico van Eijk/Annetje Ottow
• Amsterdam, 4 November 2006

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Towards a more tailor made approach

• Where do we need a more tailor made approach
• European Commission
• Regulator
• National Regulatory Authority
• Courts/judicial review
• Examples
• Cable
• All-IP
• MTA

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European Commission

• Soft law versus clear enforceable principles
• Predefined markets are leading
• Sufficient awareness of the differences between
  member states is lacking One size fits all
• Little room for a national approach
• Review no fundamental changes, further reduction
  of national discretion

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Example

• Cable case
• 19th market
• Strong opposition by the European Commission
• National situation with long historical
  background
• Not an innovative/infant market, but a mature and
  consolidated market with limited competition
• Isolated approach what if a similar view would
  be have been taken on other markets?

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Regulator

• Legislation has a national context
• Different systems of checks and balances
• Dutch situation
• No tradition to put enforceable principles in the
  law
• NRAs arent allowed to regulate
• Guidelines may restrict NRA
• More than one NRA split of responsibilities

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Example

• MTA
• Clear criteria might have narrowed down the
  interpretative boundaries of the court
• Cable
• Additional regulation on programmes/packages
• ALL IP
• Regulatory intervention on participation of local
  government in Ftth-projects.

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National Regulatory Authority

• NRAs have to work in a national context
• Regulatory environment
• Markets
• Limitations to act (read regulate)
• Gaps require new legislation
• Restrictions can create new uncertainty
• Local market specifics

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Example

• MTA Case
• Unsupported assumptions on market definition and
  analysis Dependence on soft law
• ALL IP case
• New developments, in particular regarding timing
  Limited guidance in regulation
• Cable case
• Typical local market aspects

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Courts/judicial review

• Thus the European Commissions views either
  support the power, which the Director has sought
  to exercise, or the European Commission has said
  two different things leaving it to this court to
  identify the source of the power the Director has
  sought to exercise.
• High Court, London, 27/6/2003

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Courts/judicial review

• Judicial review has a significant level of
  national elements
• Represents a substantial level of uncertainty
• Ignored in the framework and the review

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Example

• MTA-case
• Lack of binding principles results in full review
• Cant ordinary competition law do the job?
• EU soft law and practice in other countries have
  little relevance
• Burdon of proof
• Little room to manoeuvre for NRA

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Conclusions

• Strong, clear and enforceable principles on the
  European level should be matched with flexible
  and discretionary powers on the national level
• Regulatory dynamics should match market dynamics
  (market structure/timing should be leading, not
  political, regulatory or judicial time setting)
• National diversity needs to be respected

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Hypothesis

• The general tendency to focus on the means
  instead of on the goals will continue to block a
  flexible, more tailor made approach in regulating
  the telecommunications market. Harmonization has
  become a goal in itself and this will not change
  in the foreseeable future.