EU jurisprudence is traveling from one paradigm to another: from a more traditional, inactive, formalized and self-contained ( mono-disciplinary ) to a more dynamic, integrative, and inter-disciplinary.

In the ninetiess: formalized attack. Definitions and constructs set uping Market Access and Single Market.

In the 2000s: integrative attack. General guidelines, broad sectoral scene. Not merely warrant market entree, but besides pull offing competition. Concept of ‘Managed competition ‘ ( = EU jurisprudence integrates other aims besides market entree ) .

Telecom ( electronic communications ) and energy have a similar way, off from formalized separation between the different histrions involved ( Commission, Member States, national regulators, etc. ) . Strengthening of separation between regulative authorization and national legislative and executive powers.

i? Article 106 TFEU?

Sector specific ordinance:

Get downing point: – default institutional strategy for the enforcement of EU jurisprudence

– Europium and Member State Institutions are given distinguishable and separate maps, with a limited sum of interaction ( and each national legal power operates in isolation from the others )

2002, 2003: – Europium jurisprudence specify in greater item how Member States organize their National rifle association

– National rifle association started to play a greater function in the development of EU policy

– Regulatory webs ( ERG for telecoms, ERGEG for energy ) created to rede the Commission, but besides to convey NRAs together and to coerce them to look beyond their boundary lines and take a European position on their several activities. It is a big measure off from the formalized towards the integrative paradigm: Commission + regulative webs work together as portion of an enforcement community, with the Commission taking attention of higher supervisory and policy-making maps, in audience with the NRAs which trade with the daily application of the jurisprudence.

But: creative activity of NRAs and regulative webs did non turn to the separation line running along national boundary lines! ( a‰ in banking and insurance or broadcast medium ) i? but failure

Critic: Failing of the EU to recognize the internal market in web industries

Firms face a regulative hodgepodge across the EU

ERG and ERGEG did non win in conveying about the expected degree of convergence among NRAs.

Competition jurisprudence powers: Article 102 TFEU

Example: ordinance of SMP telecom houses or big energy operators

Example: Fining officeholder for marauding pricing or pricing squeezing

Besides interesting when there is a deficiency of independency of regulator and authorities

Increased separation between NRA and national legislative and executive power

Commission proposed the creative activity of regulative bureaus in telecom and energy sectors

Conflicts of involvement when State both behaviors ordinance of the sector and holds a important involvement in one of the participants ( officeholder )

Most National rifle associations were created as separate governments basking a step of liberty

Problem of separation of powers! NRAs undertakings are limited to execution or application of jurisprudence and policy ( regulative determinations involve policy trade-offs )

Common jurisprudence VS Continental public jurisprudence tradition

Role of Legislative and Executive: limited to issues where there is no clear contention among market participants ( no victors, no also-rans ) . Highest degrees: supply guidelines and set out policy aims

Regulative determinations must be made in an environment which is shielded from undue influence every bit much as possible ( avoid rent-seeking behaviour ) . Imply transparence, independency of decision-maker, openness, responsibility to province grounds and possibility of reappraisal ( features of a regulative bureau )

But: The more National rifle associations are independent towards national legislative or executive, the more answerability becomes debatable.

Solution ex-ante: Legislative and executive give them some waies, specific aims, defined undertakings and their powers are set out.

Solution ex-post: good administration rules ( transparence, openness, need to confer with and give grounds, etc. ) + file regular studies + competition jurisprudence powers.

Finger, Varone ( 2006 )

Functions of ordinance: competition, market creative activity, proficient facets, political facets

Different facets that are being regulated

Institutions of ordinance: by and large a more or less independent regulative bureau

Future European theoretical account of web industry ordinance = co-evolution between the proficient systems and their institutional administration

3 diverging policy options:

Top-down: sector-specific regulators at the EU-level

Bottom-up: differentiated ordinances ( at regional degree or across clients ‘ classs )

Self-regulation: new regulative powers to major market participants

Assessed against the ideal-typical systems of administration which have been late proposed by several bookmans of multi-level administration ( see Hooghe and Marks ( 2003 ) , Skelcher ( 2005 ) )

Giandomenico Majone ( 1996 ) : construct of a “ regulative Europe ” emerging

New signifiers of ordinance that operate independently of the single Member States are looking

European Union = new “ Regulative State ”

Market development does non take to deregulation but instead to re-regulation

Levi-Faur ( 2004 ) : New order of “ regulative capitalist economy ”

The liberalisation of web industries in Europe has created the demand to happen new institutional locales for ordinance: the deputation of regulative to independent organic structures ( Independent/National Regulatory Bodies, IRAs or NRAs ) ( “ National ” because non ever “ independent ” ! )

( see Thatcher ( 2002 ) , Gilardi ( 2005a ) )

National rifle associations are replacing other signifiers of State intercession: considered to be less bureaucratic, more efficient and independent of political influence.

Historically, web industries were vertically integrated, and by and large nationally organized. If non wholly integrated within the same endeavor, all concerned histrions collaborated nationally, every bit good as internationally.

“ Cost+ ” Regime ( = paying attending foremost to the proficient facets and merely so to fiscal and client considerations )

+ Public service duty

Procedure of liberalisation since the 1980s: coincident unbundling and competition

BUT non the same as other industries and sectors because of the specific technological nature of web industries.

Merely some sections can be liberalized, while others remain monopolistic for both proficient and economic grounds.

After liberalisation ( and ideally, in analogue to it ) , the web industries must be re-regulated in order to guarantee their proper operation for the benefit of both the citizens and the clients.

Third Party Access ( TPA ) = The granting of rights to utilize the substructure of the officeholder

First developed in telecom sector

Access ordinance becomes so to talk the “ miracle ” solution for market creative activity

The EU telecommunications sector

Hancher, Larouche ( 2010 )

1990 directives ( establishments ) : creative activity of a ‘body independent of the telecommunications organisations ‘ to administrate ordinance

1998 ( jurisprudence ) : Removal of all staying monopoly rights. It became clear that the reserved/non-reserved ( = liberalized ) services duality would disappear.

1998 Open Network Provision ( ONP ) directives ( jurisprudence )

1998 full liberalisation ( establishments ) : National rifle association were introduced in EU statute law ( broke the separation between EU and national establishments ) ( the EU required NRAs to be separated from the remainder of the disposal )

2002 current model ( jurisprudence ) : “ new regulative model ” ( reappraisal of ONP 1998 )

4 directives ( Universal Service, aˆ¦ )

Best illustration of new integrative paradigm in the ordinance of web industries in the EU

2 rules: – Reliance on economic analysis ( 3-criteria trial, place SMP, aˆ¦ )

Technological neutrality ( = the low avoids act uponing or falsifying technological picks, go forthing them to market forces every bit much as possible )

Meant to be applied by a specialised NRA ( National Regulatory Authority )

But staying case of separation: – web VS content

– Competition lax ( ex-post ) VS sector-specific ordinance ( ex-ante )

2002 model ( establishments ) : – aims to be pursued by NRAs were set out in item

– system of supervising ( NRAs make bill of exchange and submit to EC )

2002 model: removed any single licence demand at national degree, replacing them with a general mandate process ( different scheme from the other sectors: attempt to minimise regulative load across the EU )

Finger, Varone ( 2006 )

European Commission has successfully: – liberalized ( Internet Explorer. Introduced markets )

Reduced regulative intercession after ab initio modulating market gap

Generated benefits for the consumers

Model of web industry liberalisation and re-regulation

The EU energy sector

Hancher, Larouche ( 2010 )

Energy market remains dominated by the presence of natural monopolies ( i.e. the transmittal system webs, TSOs ) . ( Not the instance for telecom market. )

Likeness with telecom sector: Servicess and substructures remain extremely fragmented along national boundary lines.

1st directives of 1996 ( electricity ) and 1998 ( gas ) = model steps

Unbundling of TSO ( transmittal system operators )

Public service duties ( PSOs )

2nd regulative bundle of 2003:

By July 2007, all consumers were eligible to take their providers

Refering the establishments, debut of impression of NRA

Designate independent regulative governments ( NRAs )

No effort to cover with the ordinance of cross boundary line substructure and shared regulative duties until 3rd bundle in 2007

3rd regulative bundle of 2009: reference some of the major spreads of before

Separate national ordinance from political control

Competition regulations have had a critical function to play to back up the passage to more competitory markets

Hancher, De Hauteclocque ( 2010 )

Revoir le 1er paragraphe de l’introduction: development de la ordinance jusqu’a ACER + 2 Prime Ministers paragraphes du point 2 + 1er paragraphe du point 2.1

More competitory sweeping market but quasi-monopoly or vertically-integrated oligopoly continues to rule.

Intensity of retail competition remains unsatisfactory in most instances.

Jamasb, Pollitt ( 2010 )

Physical features of electricity supply industry ( ESI ) that form its optimum regulative design:

Large sunk costs which limit entry possibilities

Vertical phase ( coevals, transmittal, distribution and retailing ) of production with different optimum graduated tables

Non-storable good delivered via a web which requires instantaneous physical balance of supply and demand at all nodes

Liberalization = creative activity of a combination of competitory energy and retail markets + regulated transmittal and distribution activities

Liberalization procedure: early 1990s

2 parallel degrees:

EU Electricity Market Directives ( member states required to take some stairss towards liberalisation )

First Directive: 1996 ( unbundling the industry, gradual gap of national markets )

Second Directive: 2003 ( advancing competition by toughening ordinance of entree to web and necessitating independent regulators )

Table 2, p7: EU Electricity Directives, Source: Vasconcelos ( 2004 ) , A Utilizer

European Commission ( better cross-border trading regulations )

1 ) Restructuring: unbundling = vertically separate the potentially competitory coevals and supply maps from the natural monopoly distribution and transmittal webs

2 ) Competition: Sweeping competition is now complete in all member states and all big users and many little consumers can freely take their electricity providers.

Although non yet required by the Directives, some states have already extended market opening to families.

3 ) Regulation: Implementing third-party entree to web is of import for effectual competition

Gilardi ( 2003 ) : Electricity regulators tend to be more independent than telecom

4 ) Denationalization: Need for private ownership? Was already the instance in Germany and Belgium before the reform, but non imposed! Norway demonstrates that liberalisation does non necessitate denationalization.

Functions, competencies, power and tools

Finger, Varone ( 2006 )

National rifle associations are replacing other signifiers of State intercession: considered to be less bureaucratic, more efficient and independent of political influence.

Problem of independency ( ++ ? ) + Power of the regulator ( – ? ) ( Chen, Thatcher ( 2005 ) , Gilardi ( 2005b ) )

Power: Can the regulator decide on its ain or merely urge?

Can the regulator investigate on its ain or lone act upon ailments?

Can the regulator intervene ex-ante or ex-post?

Does the regulator have to confer with with other organic structures?

Independence: Who nominates the members of the regulative organic structures?

For which period of clip are regulators nominated?

To whom does the regulator study?

Who oversees ( supervises ) the regulator?

Issue of degree of ordinance: originally: national degree

Over clip: procedure of bit by bit traveling up to EU degree

Sector-specific ordinance and regulators

How to plan an institutional model for modulating the liberalized web industries?

How and to whom the new ordinance powers are delegated?

Majone ( 2001 ) : 2 basic theoretical accounts of deputation: bureau and trust relationship

Principal-agent relationship ( chief: political governments and agent: sector specific NRAs )

Because of concealed information: inauspicious choice

Because of concealed actions: moral jeopardy

Agent ‘s penchants must be in line with those of the principal in order to avoid or minimise bureau losingss.

Solution: regulations and agreements ( ex-ante contracts + ex-post monitoring )

R. Maynts ( 1997 ) : Administration manners are meant to be solutions to functional jobs such as the direction of mutuality between assorted histrions of a sector.

Aim of administration: stimulate and unafraid coordination between these histrions

Hancher, Larouche ( 2010 )

Creation of ACER and BEREC: New policy way

Originality of ACER and BEREC: Network bureaus

National rifle association must be independent from industry AND from national authoritiess, without political intervention

( In comparing to ACER, BEREC leaves more power in the custodies of the NRAs moving together as Board of Regulators )

Multi-level administration complicates the allotment of duties and the answerability of these different histrions from a political every bit good as a legal position.

Literature focused on answerability shortages of webs, but there is besides the job of their place vis-a-vis the Commission ( division of competencies and undertakings between the new bureaus and the Commission )

Attention! Besides job of differentiation between policy-making and execution

Evolving interactions between: – Commission VS ACER/BEREC

– ACER/BEREC VS NRAs

Economic ordinance will to a big extend remain a national competency, albeit that ( quoi que ) the NRAs should mind the European involvement.

Separation has become the root of the job, non the redress!

‘Managed competition ‘ involves pull offing and maneuvering the continued interaction of ‘Community, province and market ‘ .

It is non about pulling boundaries and spliting lines.

Objectives no longer limited to a resolved chase of market gap and short term efficiencies.

BEREC: proposal foremost every bit ambitious as ACER, but in the terminal BEREC is instead a strengthened ERG ( much less of a bureau )

Comply with Meroni philosophy: simply reding the Commission without taking any determinations

But if BEREC ends up with a ample adept staff and the Commission starts to trust progressively on its advice, so BEREC will in pattern be taking determinations for the Commission.

Acer: consultative function

Supply a model for the cooperation of NRAs, and to complement their actions at EU degree to turn to regulative spreads on cross-border issues and supply greater regulative certainty.

Voir C.1.e: good definition! !

Regulative independency from national authoritiess does non needfully connote independency at the European degree

Power of ACER vis-a-vis the Commission remains weak i? Meroni philosophy

Hancher, De Hauteclocque ( 2010 ) ( ACER )

EX ANTE:

ACER is the result of a long procedure of more than 10 old ages of informal cooperation among regulators.

( Reminder: Originality of ACER and BEREC: Network bureaus )

The reframing of the regulative webs as web bureaus raises peculiar answerability issues:

Before: formal coordination of processs and exchange of information or best pattern

After: fosterage closer regulative convergence

New phase in European sectoral ordinance

Multi-level state of affairs with different line of duty running between: Commission, regulative web bureaus, Member States, NRAs.

Complicates allotment of duty and answerability of the different histrions from a political and legal position

Paragraphes 1, 2, 3, 4 et 5 du point 2.2: Composition ACER + “ Main countries of competencies ”

Far from a regulative revolution, HACER will therefore in kernel continue the current undertakings of ERGEG, albeit with a formal footing in the European Directives and Regulations

Restriction of power: Meroni Doctrine ( = an establishment like the Commission can non depute to an bureau powers it itself does non possess )

Merely purely defined executive powers can be delegated, but non political or determination devising powers.

Other better account to restrictions: opportunism of the different histrions involved

Antique Post:

Use of antimonopoly powers with more energies

Antitrust Torahs had to be enforced when a old determination of a national regulator still left room for maltreatment of laterality ( + province assistance regulation )

Do non work! Need of a existent ordinance!

Jamasb, Pollitt ( 2010 )

Performance is non easy to mensurate, but impacts on market construction yes.

Concentration:

Fiscal integrating more rapid than physical integrating

Inclination towards increased market concentration

Restrict the effectivity of competition?

Horizontal concentration remains high in many states

Strong inclinations toward perpendicular ( rhenium ) integrating through domestic and cross-border amalgamations and acquisitions ( negative impact )

Newbery ( 2004 )

Sector public presentation:

– Measurement of public presentation: electricity monetary values ( = public presentation index )

Lower norm EU monetary value + monetary value convergence

– Investing adequateness: Incentives for future investing adequateness

Tax returns on investing in some companies ( they are worsening and meeting but is electricity less hazardous than other industries, warranting lower returns? )

– Security of supply: modesty capacity ( comparatively stable post-liberalization )

If every state relies on imports to run into extremums in demand, and extremums are correlated, there is a job!

Decision: Need for equal revelation to regulators, more transparence, and the aggregation and publication of new types of informations. Liberalization and integrating of the European market is a go oning procedure and remains a work in advancement.

AnnexeA : Tableau avec evolution annee par annee de la creation diethylstilbestrols regulateurs europeens

Hancher, Larouche ( 2010 )

1990 directives ( establishments ) : creative activity of a ‘body independent of the telecommunications organisations ‘ to administrate ordinance

1998 ( jurisprudence ) : Removal of all staying monopoly rights. It became clear that the reserved/non-reserved ( = liberalized ) services duality would disappear.

1998 Open Network Provision ( ONP ) directives ( jurisprudence )

1998 full liberalisation ( establishments ) : National rifle association were introduced in EU statute law ( broke the separation between EU and national establishments ) ( the EU required NRAs to be separated from the remainder of the disposal )

2002 current model ( jurisprudence ) : “ new regulative model ” ( reappraisal of ONP 1998 )

4 directives ( Universal Service, aˆ¦ )

Best illustration of new integrative paradigm in the ordinance of web industries in the EU

2 rules: – Reliance on economic analysis ( 3-criteria trial, place SMP, aˆ¦ )

Technological neutrality ( = the low avoids act uponing or falsifying technological picks, go forthing them to market forces every bit much as possible )

Meant to be applied by a specialised NRA ( National Regulatory Authority )

But staying case of separation: – web VS content

– Competition lax ( ex-post ) VS sector-specific ordinance ( ex-ante )

2002 model ( establishments ) : – aims to be pursued by NRAs were set out in item

– system of supervising ( NRAs make bill of exchange and submit to EC )

2002 model: removed any single licence demand at national degree, replacing them with a general mandate process ( different scheme from the other sectors: attempt to minimise regulative load across the EU )

Hancher, Larouche ( 2010 )

Energy market remains dominated by the presence of natural monopolies ( i.e. the transmittal system webs, TSOs ) . ( Not the instance for telecom market. )

Likeness with telecom sector: Servicess and substructures remain extremely fragmented along national boundary lines.

1st directives of 1996 ( electricity ) and 1998 ( gas ) = model steps

Unbundling of TSO ( transmittal system operators )

Public service duties ( PSOs )

2nd regulative bundle of 2003:

By July 2007, all consumers were eligible to take their providers

Refering the establishments, debut of impression of NRA

Designate independent regulative governments ( NRAs )

No effort to cover with the ordinance of cross boundary line substructure and shared regulative duties until 3rd bundle in 2007

3rd regulative bundle of 2009: reference some of the major spreads of before

Separate national ordinance from political control

Competition regulations have had a critical function to play to back up the passage to more competitory markets

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