On the Application of Competition Law as Regulation: Elements for a Theory

• Autores: Pablo Ibáñez Colomo
• Localización: Yearbook of European Law, ISSN 0263-3264, Vol. 29, Nº. 1, 2010, págs. 261-306
• Idioma: inglés
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• Resumen

  • Claims that the Commission regulates markets through the application of EU competition law are not unusual. This discourse was commonplace in the mid-1990s, when some decisions contributed significantly to accelerate the liberalisation of the telecommunications sector, 1 and to prevent the emergence of bottlenecks in nascent television markets. 2 Following the adoption of Regulation 1/2003/EC 3 there are revived concerns about the application of competition law as regulation. The remedies adopted (or contemplated) in recent cases against copyright collecting societies, 4 dominant operators in �new technology markets� 5 and incumbents in the energy sector 6 provide examples in which the Commission allegedly used its powers under Articles 101 and 102 TFUE to shape markets and influence its evolution. 7The implicit idea underlying criticism in this sense is that competition law lacks some attributes that are typical of economic regulation. In particular, it is assumed that remedies under competition law are less far-reaching and that the timing of intervention is different (i.e. ex post in the latter, ex ante in the case of regulation). However, the open-textured nature of Articles 101 and 102 TFEU or Regulation 139/2004/EC makes it difficult to claim a priori that intervention under competition law cannot mimic sector-specific regimes. 8 None of the said provisions seem to constrain action by the Commission in this sense, and EU courts have systematically refused to introduce any limits that are not supported by the letter of the FEU Treaty. 9 Accordingly, it is now well-established that remedial action in competition law cases may be not only negative but also positive (typical of regulatory regimes), as where an undertaking is required to supply an input. 10 Similarly, intervention can take place both ex ante and ex post.

    Against this background, this paper avoids the normative question of whether competition �