Chillin'Competition

I have uploaded on ssrn a new paper (available here). It is forthcoming in the Oxford Journal of Legal Studies.

If you take a look at it, you will see that it is different from the sort of stuff I have generally written (it was probably about time to do something else). It is a tad more academic, and it is not on competition law, but on economic regulation (more precisely, on the EU telecommunications regime). Here is hoping that, in spite of all that, some of you will find it interesting.

I had two objectives in mind when writing the paper. First, present to a generalist audience the EU Regulatory framework for electronic communications. This regime is, in my view, one of the most impressive accomplishments of the Union.

The Framework is impressive not only because of what it achieved (it accompanied the liberalisation of telecoms activities) but because of the legal techniques on which it relies. It is a hybrid between competition law and regulation (just like the DMA) that was designed to adapt seamlessly to economic and technological change. Not enough people know how clever and carefully calibrated it is.

My second objective was to reflect on future-proof regulation more generally. Dealing with fast-moving industries (including telecoms and digital markets) is always a challenge for legislatures and agencies. Which is why regulation is designed to be future-proof.

Against the background of the European experience with the regulation of telecommunications activities, the main point my paper makes is that ensuring that regulation is future-proof is a challenge, but not for the reasons one may think.

The main challenge does not come from the design of the regime (in that respect, the EU Framework was most impressive), but from the fact that legislatures may not commit to future-proof intervention. The European experience shows that the temptation to avoid future-proof techniques and revert back to the old ways of regulating is always very strong.

Thus, with every new amendment of the EU Framework, the regime became a little less future-proof. Roaming charges is the perfect example. The EU legislature could not resist the temptation of dealing with the issue a l’ancienne, that is, by directly setting roaming charges (instead of following the cautious approach enshrined in the Framework Directive). Same with net neutrality, or with interconnection.

I end the paper asking whether future-proof regulation is an illusion, at least insofar as legislatures’ and agencies’ priorities change over time: in a way, it is an aspiration that hopes or assumes that everything around the regime might change, but that the principles underpinning it will not.

It would be wonderful to get your comments on this paper. And I take the opportunity to thank my colleagues at LSE Law School for their comments during a staff seminar and the competition law scholars who attended a Jean Monnet Workshop.