Presses Universitaires de Louvain, Louvain, 2004, 600 p.

Les télécommunications en Europe : concurrence ou organisation de marché, P. NIHOUL

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Defended in 1998, the thesis of Professor Paul Nihoul is now republished. Dealing with the specific sector of telecommunications, which is little studied by the doctrine, it is part of the broader debate on the application of competition law to public services. As the thesis appears in its original version in its entirety, with the exception of a few editorial changes (and a few clerical errors following the transfer of Chapter IV from Title IV to Title V), some practical aspects are now outdated. The author discusses the current Community regulatory regime for telecommunications in another publication published in 2004, which will be commented on in the next issue of the review (see Nihoul P. and Rodfort P., EU Electronic Communication Lex- Competition and Regulation in the European Telecomunnications Market, Oxford, Oxford University Press). This article does not repeat the theoretical contribution of the present work, which therefore retains all its relevance. Indeed, Paul Nihoul indicates that more recent measures taken in this area have confirmed his point of view.

Indeed, taking the opposite view to most existing analyses concerning telecommunications, it argues that general competition law and regulation specific to electronic communications are not fundamentally different. More specifically, he defends the idea that this regime is a matter of both competition and market organisation, understood here as the intervention of the authorities, contrary to the critics of the reform who believe that excessive emphasis has been placed on competition.

The book, composed of five titles, presents a three-step reasoning. In the first part, the measures concerning telecommunications are examined exhaustively. The measures dealing specifically with telecommunications, i.e. the rules on terminals, services, networks and public procurement in the area concerned, are then examined, followed by those resulting from the application of competition law, mainly the rules on restrictive agreements and dominant practices. The second part is devoted to an analysis of the regime in place. The author thus comes to identify a regulatory model based on the following principles: the adoption of common standards, a technique which today combines mutual recognition and an attempt to bring national provisions closer together, with the aim of avoiding technical disparity and supporting companies at international level; transparency, which includes certain accounting obligations; the protection of users; the establishment of independent authorities in the Member States to ensure the application of regulations and the resolution of disputes; the formation of a Community-scale industry capable of competing with foreign companies, without leading to excessive concentration or disproportionate power on sensitive markets. As Paul Nihoul points out, this model, because of its general nature, could be applied to areas other than telecommunications.

These different analyses allow the latter to defend his theory in the third part of the book, which in fact constitutes the core of his thesis. First of all, he shows how the reform made it possible to achieve a compromise between freedom and intervention - between competition and market organization. His answer then becomes clearer when he analyses the relationship between harmonization and liberalization, two types of measures included in the regime concerned. Pursuing ultimately similar objectives, such as transparency or the independence of the authorities, these measures are not only united by a common inspiration, but also because they present a homogeneity of intervention, the same problems being treated in a similar way. Finally, they differ above all in institutional terms, with liberalisation measures coming from the Commission and harmonisation measures from the Council and Parliament. Consequently, the telecommunications regime is indeed a matter of competition and market organisation, with liberalisation relating to the former and harmonisation to the latter.

This answer is both confirmed and expanded upon in the next chapter, when the relationship between competition and regulation is examined. Indeed, the author demonstrates that the concept of competition, generally presented as synonymous with the absence of intervention or minimal intervention, cannot be radically opposed to that of market organization. It also allows the authority to organize markets in order to achieve the objectives that the latter has defined. Indeed, no essential divergence is found between competition and regulation at the end of the examination undertaken. The differences found, such as a more indirect approach to competition allowing economic agents to maintain the "illusion of freedom", do not alter the nature of the intervention.

Paul Nihoul therefore reaches, at the end of this sustained analysis, the not very widespread conclusion that the Community telecommunications regime is not fundamentally distinct from general competition law. This original opinion, based on a critical approach, merits reflection.