Should The EU’s Forthcoming Ex Ante Regulation of Digital Gatekeepers be Based on The EU Regulatory Framework for Electronic Communications?

By Damien Geradin (ThePlatform Law Blog)

As discussed in a prior post, the European Commission is currently working on an ex ante regulation to control the market power of so-called “digital gatekeepers” or “systemic platforms”. An idea floated by some would be to base this ex ante regulation on the EU regulatory framework for electronic communications.

The main features of this framework are the following:

  • The Commission adopts a Recommendation identifying those product and service markets within the electronic communications sector, the characteristics of which may be such to justify the imposition of regulatory obligations.
  • National regulatory authorities (“NRAs”) may consider that a relevant national market (which they have defined taking utmost account of the Recommendation) may justify the imposition of regulatory obligations if all of the following criteria are met:

(a) high and non-transitory structural, legal or regulatory barriers to entry are present;

(b) there is a market structure which does not tend towards effective competition within the relevant time horizon, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry;

(c) competition law alone is insufficient to adequately address the identified market failure(s).