Book Review: Between Regulation and Deregulation

In the fall 2016, Associated Professor at the University of Copenhagen, Christian Bergqvist, published a study on the limitations of competition law and its ambiguous application to the supply of electricity and telecommunications in the EU. The publication analyses the impact of competition law in the electricity and telecommunications sectors across the EU. The general perception is that competition law has played a limited role in the electricity and telecoms markets. “Between Regulation and Deregulation” rebuts the presumption but then offers some words of caution on the matter, as competition law is not well equipped to deal with some of the unique forms of market power in these sectors. Nordic Competition Blog has been invited to review the publication.    

“Between Regulation and Deregulation” offers a thorough analysis of Article 102 TFEU in general and an analysis of how the Article has been applied to the supply of telecommunications and electricity in the EU. In this analysis, the author considers whether competition law could and should have a more prominent role when it comes to the regulation of these activities. In this process, the author offers an insight into the risk of mistakes in the form of over-enforcement (“Type I” errors) and under-enforcement (“Type II” errors). Competition-law enforcement has traditionally focused on avoiding the latter. However, Christian Bergqvist identifies some emerging issues on over-enforcement in both sectors and questions the application of margin squeeze. Finally, Bergqvist tables that, rather than regarding competition law and sector regulation as two separate concepts, a closed interaction has emerged between them within the EU, where sector regulation is framed around a competition-law framework and may, in the absence of competition law, never have been adopted. The latter, according to Christian Bergqvist, offered a strong incentive for the member states to accept a gradual opening of the EU telecommunications and electricity markets in the nineties and noughties to contain the EU Commission’s power under competition law. Thereby, the Commission’s willingness to open, or not open, competition-law cases sets the stage for the Council’s adoption of directives on matters within the telecoms and electricity sectors. A highly interesting, and somewhat bold, statement.

Interested in the publication?

The publication offers new thoughts on how to deal with Article-102 issues in the electricity and telecommunication sectors; hence, the publication will be an add-on to already published textbooks and articles. The book will also be to the benefit of those dealing with infrastructure-based markets as they may find that the book provides new ideas as to how to combine competition law with infrastructure-based markets, including regulated sectors.

If you are interested in studying “Between Regulation and Deregulation”, the publication is available as a paperback and an e-book online here. The price of the publication, only DKK 350.00 (€ 47), is extremely fair compared to other competition-law publications. Note that non-Danish readers will also find interest in the book as it is written in English.

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Michael Klöcker is a Partner at LETT's Copenhagen office.

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