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Journal Article - Publication Review

EU Electronic Communications Law: Competition and Regulation in the European

Telecommunications Market.

2004

Paul Nihoul and Peter Rodford.

Reviewed by Erika Szyszczak.

E.L. Rev. 2005, 30(3), 455-458

[European Law Review]

Subject: Information technology. Other related subjects: Competition law.

Telecommunications

Publisher: Oxford University Press

ISBN: 0 19 926340 X

Price: GBP 125

Format: Hardback

No. of pages: 802

© 2016 Sweet & Maxwell

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European Law Review

2005

Publication Review

EU Electronic Communications Law: Competition and Regulation in the European

Telecommunications Market

Paul Nihoul

Peter Rodford

Reviewed by Erika Szyszczak

Subject: Information technology. Other related subjects: Competition law.

Telecommunications

*E.L. Rev. 455 Electronic communications is used as a generic term to embrace all forms of
electronic transmissions of information from telecommunications, fixed and mobile telephony,
broadcasting and the internet. The recent application of digital technology has led towards a
rapid transformation of the telecoms and the IT sectors and this, combined with the
emergence of the technological convergence phenomenon, has meant that different forms of
communication are independent of the method of technological delivery. The EU has
responded to the new regulatory challenges by creating, in July 2003, a new regulatory
framework for the electronic communications sector. This advanced, flexible but detailed *E.L.
Rev. 456 and rigorous framework is a model for the regulation of this new social and
commercial world and has been hailed as a new form of economic constitutionalism.

The biographical notes of the authors of this book read as a dream team to address this
complex and fast moving area. Paul Nihoul is the author of a number of theoretical insights
into the regulation of telecommunications and liberalisation issues generally and is Professor
of Telecommunications and Competition Law at the Universities of Louvain and Groningen;
Peter Rodford adds a practical element as a senior official in the Commission in DG
Information Society. From this combination of experience, the authors claim that this book
provides a comprehensive practitioner text, aimed at a wide range of practitioners, civil
servants, government officials, regulators, as well as the increasing number of litigation
practitioners. In this quest, the book is successful.

The book is organised into seven chapters with four appendices covering a List of Instruments,
a List of Relevant Services in the European Commission, a List of National Competition

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Authorities and a List of National Regulatory Authorities. At the start of the book, there is a
comprehensive Table of Cases, Legislation and an explanation of terms and expressions used.
I have to admit I devoured the last section. It was a liberating experience. I can now interface
with every child under the age of 10 on ATMs, ADSLs, Macs, PabXs, and DVIs with a new
found linguistic confidence.

Reasonably priced for a resource book, it provides a wealth of sources and analysis of the
main current issues in electronic communications regulation. The analysis and detail of the
sources and interaction of law, interspersed with relevant case law is efficient, crisp and
to-the-point. But by aiming for a wide coverage and an audience which also covers academics
and students, there are some frustrating points. For example, the majority of the footnote
references are citation references with a dearth of academic engagement, even in areas
where there has been a fair amount of academic comment and debate, both in European and
US literature. For example, the essentialfacilitiesdoctrine; access to unregulated
essentialfacilities; universal service obligations; and the ongoing debate of the role of
services of general economic interest in competitive, liberalised markets. Even more
frustrating is that quite often the authors make wide-ranging statements, such as the one
found at para.4.318 (p.466), which states “Authors generally emphasise a difference between
the two main provisions….” without citing their sources. I cannot see students retaining a
sufficiently long enough attention span to read and digest this book as a text without resort to
some distracting multimedia device.

On the positive side, the general introduction in Chapter 1 not only provides a comprehensive
historical overview of the EU and WTO legal instruments but also discusses the new
institutional design which binds the National Regulatory Authorities and underpins the EU
framework regulating electronic communications. Similarly, Chapter 2 sets out a broad
historical picture of the liberalisation programme in the EU looking at the factors which led to
the abolition of special and exclusive rights and how liberalisation has led to privatisation of
former state monopolies in this sphere. From an academic point of view, it would have been
challenging to have had some in-depth discussion and a deeper analysis of the relevant
factors which resulted in such a revolutionary change to the regulation of telecommunications.
Equally, the authors could have looked for a theoretical framework to explain this
phenomenon. Chapter 2 is far too ambitious in its coverage. It digests the case law on free
movement of capital and golden *E.L. Rev. 457 shares as well as state aid control and the
private investor principle. Added to this, the chapter also sets out the objectives of the EU
regulatory regime, namely the creation of effective competition, citizens' interests and the
effective functioning of the internal market, alongside the principles which guide the
regulatory approach, namely objectivity, proportionality and technological neutrality. Added
to this, the chapter also addresses the legal environment crated to govern the start up of an
electronic communication economic activity. This in itself merits specific consideration not only

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from a regulatory perspective (level of regulation, access to the market, authorisation) but
also the specific rules to handle scarce resource issues such as spectrum frequency.

Chapters 3 and 4 address the concomitant problem of access to networks. Sector specific
regulation is recognised as a fallback when ordinary commercial transactions are insufficient
and competition law is either reluctant to intervene or inappropriate to do so. From the
academic perspective, more attention could have been paid to the emerging, but ad hoc, case
law in the liberalised sectors to show the weakness of applying general principles to the
specificity of markets where new hybrid actors of former state monopoly incumbents operate
alongside competitors who do not possess the first mover advantage. Chapter 3 does go into
detail on the implications of the new responsibilities, drawn from antitrust principles, placed
upon undertakings with significant market power. But again, from an academic perspective,
this chapter does not engage with a discussion of more controversial issues such as the
implications of creating “special responsibilities” for private power or the implications of
collective dominance.

In contrast, Chapter 4 works through the case law on Art.82 EC but is weak on the academic
merits of an essentialfacilitiesdoctrine as a fallback where there is no sector specific
regulation. This discussion is also weak on remedies and fails to apply the emerging principles
to the sector specific characteristics of electronic communications regulation. The combination
of antitrust regulation, alongside sector specific regulation, makes the electronic
communications sector, a fertile ground for regulatory experiment, a minefield for the
practitioner.

Chapter 5 looks at the recent attention paid to the regulation of universal service obligations.
Here greater academic attention should be paid to the interaction of the European Courts'
case law through litigation started at the national level in the areas of state aids and Art.86
EC. Even today, the EC Commission has been unable to create a general, normative standard
for the inter-related ideas of services of general (economic) interest, public service obligations
and universal service obligations. Yet many of the Courts' ideas permeate the regulation of
universal services in the liberalised sectors.

Chapter 6 is a goldmine for the practitioner. It handles dispute resolution in a holistic way.
First, it does so by setting out the various national authorities and courts which operate
alongside the EC Commission and the European Courts. The appendices provide details of how
to contact the various national and European Union authorities. Secondly, this chapter
explains the relationship between national and EU law and how to solve a conflict of laws
problem.

More could be made of Chapter 7 which looks at the role of the economic citizen, that is the
protection of the end-users of electronic communications. The Microsoft litigation, alongside
inquiries into mobile phone charges, has captured the attention of consumers as well as

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competitors of the role antitrust legislation can play in promoting competitor and *E.L. Rev.
458 consumer interests. It is likely that the next few years will see further litigation
presenting difficult questions on the role of Courts in balancing market power in this fast
moving sector. This chapter gives a taste of the future: the progressive development of
spectrum policy, the different forms of structural separation which have emerged, the use of
standardisation and harmonisation, the rights attached to end-users and a special section on
broadcasting. This chapter is a little too much of a hotch potch. Broadcasting, for example,
would have merited a case study analysis in other chapters and wider issues, for example a
discussion of the role of culture in the EU, are ignored. The authors admit that it is an end bin
to address issues which did not fit in elsewhere. Future editions will have to address the issue
of how to incorporate technological developments into the structural framework created by the
authors. For example, Wi-Fi and digital interactive TV services are already regulars in many
domestic households; Voice over Internet Protocols are familiar to 16-year-old MSN chat-line
users as well as the business world.

All in all, this is very much a book of its time. An important reference tool; a detailed
snap-shot of the complex regulation of this area.

Erika Szyszczak1

E.L. Rev. 2005, 30(3), 455-458

1. Centre for European Law and Integration, Faculty of Law, University of Leicester.

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