Regulation of oligopolies in the EU electronic communications markets: the current framework does not adequately address the oligopoly problem.

Abstract

The present work has examined the thesis that the current framework for the regulation of SMP under EU law on electronic communications does not address the oligopoly problem in full. Under the SMP framework for electronic communications, joint dominance is considered a very rare occasion that may arise in symmetrical duopolies; there are strong doubts on whether the existing framework is capable in practice of addressing more complex issues associated with oligopolies in electronic communication markets. Wholesale international roaming is presented as a case study in support of this submission. Under the SMP framework for electronic communications, the Commission thinking has been too much dominated by the concept of single dominance. In view of the increasing number of oligopolistic markets in the post-liberalisation era, the framework needs to be revised to encompass wider market definitions, which will be able to catch oligopolistic situations also. The application of the collective dominance test of Annex II of the Framework Directive and the Guidelines on the assessment of market power will have to be updated in accordance with the Impala judgment. Also, the Guidelines should be revised to address also particulars of the application of remedies in oligopolistic markets and remedies of a quasi-contract type, like the imposition of penalties that may be used for the finance of the roll-out of new networks should be examined as an alternative to access obligations.