Pablo Ibáñez Colomo

Three Shifts in EU Competition Policy: Towards Standards, Decentralization, Settlements

EU competition policy has undergone fundamental transformations over the past 20 years. The changes observed are substantive, procedural and institutional in nature. Two decades ago, EU competition policy was enforced centrally by the Commission in a way that is probably best described as traditional administrative law-making. Policy was formulated by means of formal decisions adopted in individual cases and by legislative instruments regulating firm behaviour in detail. Following the adoption of Regulation 1/2003, and as a result of the use of economic analysis, the enforcement landscape is more diverse and decentralized. National competition authorities have emerged as key players in the field (a trend that is also observed in other fields of EU economic regulation, including energy and electronic communications). Individual decisions are now crucially complemented by soft law instruments, the use of which started in the 1990s and which now permeate the whole discipline, and by negotiated procedures.

The Future of Communications Regulation after Ofcom’s Pay-TV Consultation

The present article examines the implications of Ofcom’s pay-TV consultation for the future of communications regulation. It is submitted, first, that the authority’s approach departs from what appeared to be well-established principles in the relevant sector-specific instruments. While ex ante intervention only seemed justified in presence of structural obstacles to effective competition, the logic underpinning the pay-TV consultation suggests that intervention may be justified whenever the regulator expects it to benefit consumers and competition. Similarly, Ofcom does not feel bound by the limits that would derive from competition law. More generally, the article examines the extent to which the broader technological and regulatory context surrounding the pay-TV consultation is relevant to explain the position taken by the authority.

The shaping of EU competition law

Based on a unique and comprehensive database, The Shaping of EU Competition Law combines qualitative and quantitative approaches to shed light on the evolution of EU competition law. It brings a new perspective to some of the most topical issues in the field including due process and the intensity of judicial review. The authors main purpose is to examine how the institutional structure influences the substance of EU competition law provisions. He seeks to identify patterns in the behaviour of the European Commission and the EU Courts and how they interact with each other. In particular, his analysis considers how the European Commission reacts to the case law and whether, and in what instances, the EU courts defer to the analysis of the administrative authority. The analysis is supported by the database and an unprecedented array of statistics and figures free to view online.

State aid as a tool to achieve technology neutrality - Abertis Telecom, SA and Retevisión I, SA v commission - case T-541/13 - annotation by Pablo Ibáñez Colomo

In Abertis (a representative judgment of a saga of similar cases), the General Court dismissed an action for annulment against a Commission decision finding that the measures in support for the deployment of a digital terrestrial television network in Spain amounted to unlawful and incompatible State aid. According to the Commission, the support measures were not granted in accordance with the principle of technology neutrality, insofar as they excluded technologies such as satellite. In addition, it held that the Member State could not invoke the Altmark case law, or Article 106(2) TFEU, insofar as the operators had not been entrusted with a public service mission. This is so in spite of the fact that the Spanish Telecommunications Act explicitly referred to the transmission of broadcasting signals as a service of general economic interest. The analysis of the Commission was, by and large, validated by the General Court. The appeal against the judgment, in this and in similar cases, is currently pending.

Discriminatory Conduct in the ICT Sector: A Legal Framework

Vertical access disputes are frequent in the ICT sector. Prominent cases before the European Commission, such as Google, and some regulatory debates—and in particular discussions about “net neutrality”—are evidence of this. The purpose of this piece is to identify a legal framework for the assessment of unilateral discriminatory practices under competition law. Three main approaches could be considered: (1) a welfare-based approach, based alone on the economic impact of the practice on welfare; (2) an approach based on the (presumed or alleged) intent of the firm; and (3) one that seeks to achieve consistency by examining the substantive standards applying to similar practices. It is shown that the latter approach is to be preferred, as it seems to be not only sound from an economic perspective, but in line with the purpose and logic of competition law regimes.