The Coming of Age of EU Regulation of Network Industries and Services of General Economic Interest

Abstract

This paper is a contribution to the 2nd edition of Craig and de Búrca, The Evolution of EU Law. It highlights key trends in EU law in the last ten to fifteen years, as regards the regulation of network industries and of services of general economic interest (SGEIs) more generally. Our central claim is that over the relevant period of time, EU law has been – and still is – in the process of moving from one legal paradigm to another. The first paradigm is more traditional, static, formalistic and self-contained (mono-disciplinary). Its hallmark is the use of legal definitions and concepts to create categories in which phenomena are placed, by way of pigeonholing or labeling, and to which consequences are attached. It was more appropriate in earlier times when EU law was concerned with establishing market access and realizing the Internal Market. The second paradigm is more dynamic, integrative and inter-disciplinary. Its hallmark is the use of general guidelines and principles to assess specific situations in a wider sectoral setting, with progressive refinement, until the point where a conclusion can be reached and consequences attached. It leads to ‘managed competition’, where EU law integrates other objectives besides market access.

As for substantive law, EU electronic communications law, since 2002, presents the best – albeit not complete – example of the new paradigm, with its reliance on technological neutrality and economic analysis. EU energy law has not gone as far down that path. Interestingly, the ECJ judgment in Altmark can be seen as an attempt to steer the law concerning SGEIs away from formalism, towards the new paradigm. However, developments following Altmark show that the other institutions have not fully followed the ECJ.

As for institutions, EU electronic communications and energy law have followed a similar path, away from formalistic separations (i) between EU and Member State institutions, (ii) along national borders or (iii) between regulation and competition law. At the same time, the separation between the regulatory authority and the national legislative and executive powers has been strengthened. The policing of SGEIs under Article 106(2) TFEU would benefit from following a similar institutional path.

Keywords: Regulation, network industries, services of general economic interest, Altmark, Art.106 TFEU, ACER, BEREC

JEL Classification: K2, K21, K23