A First Assessment of the New European Regulatory Framework for Electronic Communications

This paper gives a first assessment of the so-called Significant Market Power regime in the European electronic communications sector nearly two years after its implementation. It details the substantive rules and the institutional design of the regime. It shows that out of the six governance principles that the regime was deemed to achieve, two principles (flexibility and transparency) are broadly met, two principles (objectivity qnd harmonisation) are much better achieved than before but still insufficiently met, and two principles (proportionality and legal certainty) might not be achieved. The paper submits that these shortcomings are due to the fact that the regime did not sufficiently take into account the incentives of the regulatory agencies, was partly based on false assumptions, and did not arbitrate enough between different policy choices. Yet, the paper suggests that the Significant Market Power regime should not be substantially reformed in the near future, but instead that regulators should change their attitudes: the national regulators should take the principle of proportionality much more seriously and have a clearer strategy, while the other regulatory agencies should more actively ensure absence of regulatory creep and more harmonisation.