國(guó)外法律學(xué)dissertation代寫
 

最后一章將提供一個(gè)政策，關(guān)于歐洲競(jìng)爭(zhēng)政策動(dòng)態(tài)考慮的作用。雖然這是很難拿出明確查明角色動(dòng)態(tài)的考慮，但在目前的歐洲賽場(chǎng)框架發(fā)揮具體的例子，勾畫一些輕微的問(wèn)題具有重要作用。正如在這篇dissertation中前面所討論的，競(jìng)爭(zhēng)政策的出發(fā)點(diǎn)仍然是競(jìng)爭(zhēng)的靜態(tài)框架。一個(gè)明確的動(dòng)態(tài)競(jìng)爭(zhēng)普遍認(rèn)識(shí)是被丟棄在當(dāng)代歐洲的競(jìng)爭(zhēng)政策。其中在微軟案例中給出一個(gè)最突出的例子。 [1] 
 

歐洲微軟競(jìng)爭(zhēng)的情況
 

在微軟委員會(huì)決定中所述“傳統(tǒng)的分析方法來(lái)界定市場(chǎng)和市場(chǎng)力量已經(jīng)使用了反壟斷機(jī)構(gòu)，不能很好地適用于所謂的新經(jīng)濟(jì)產(chǎn)業(yè)。” [2] 在1998年微軟提出對(duì)微軟委員會(huì)的案件由Sun Microsystems投訴引發(fā)被認(rèn)為侵犯原第82條歐共體隱瞞相關(guān)的接口信息，這是需要通過(guò)其他市場(chǎng)參與者對(duì)于實(shí)現(xiàn)全面的客戶機(jī)到服務(wù)器以及斷絕與服務(wù)器的互操作性的目的。
 

Dynamic competition in the current legal framework

 

The final chapter will provide an illustration of the current role of dynamic considerations in European competition policy. Although it is hard to come up with concrete examples which pinpoint explicitly on the role dynamic considerations play in the current European competition framework the objective of this paragraph to sketch some light on the issues/to get a flavour. As was discussed earlier in this thesis, the starting point of competition policy is still the static framework of competition. An explicit general recognition of dynamic competition is discarded in contempory European competition policy. One of the most prominent examples of this was given in the Microsoft cases. [1]

 

Microsoft competition cases in Europe
 

In the Microsoft decision of the Commission Microsoft contended ‘that the traditional analytical approach to market definition and market power that has been used by antitrust authorities is not well suited to so-called new economy industries’. [2] The case of the Commission against Microsoft was initiated by a complaint filed by Sun Microsystems in 1998. Microsoft was supposed to infringe the former Article 82 EC by concealing relevant interface information which is required by other market participants for the purpose of achieving full client-to-server as well as sever-to-server interoperability. [3] The initial complaint was later supplemented by an allegation of utilising an abusive licensing policy which aimed at leveraging Microsoft monopoly position in the Client PC OS into the workgroup server market. Another added allegation in 2000 was the fact that Microsoft was foreclosing competition on the market by integrating its Windows software and the Windows Media Player (WMP). The European Commission feared that the pre-installation of Windows Media Player resulted in the fact that this mediaplayer would be the standard choice of consumers and programmers to write applications for. As a result competition on the merits would be weakened, consumer choice would be limited and innovation stifled. [4] An integration of the dominant Windows software package with the Windows Media Player would lead to an unmatched advantage of Microsoft on its competitors in the market as Apple and Real Network. As a result this competitors would be foreclosed on the market with the risk of a tipping market toward the Windows Media Player risking an inefficient market standard to be dictated.#p#分頁(yè)標(biāo)題#e#

 

Three relevant market were identified by the European Commission. First the market for client operating system, which refers to the dominant market position of Microsoft with its Windows software package. Second, the market for work-group server operating systems and third the market for streaming media players. [5] The third relevant market for streaming media players defined by the European Commission and the related market share analysis was disputed by Microsoft. According to the Commission:

 

‘Essentially, Microsoft had attempted to make a general point that in IT industries, the forms of competition were different from those of old economy industries, and hence that the notion of dominance would be inappropriate. A product which might presently give the appearance of being in a strong or dominant position in the market would in fact be at constant risk of being displaced by a completely new product, which would currently not be a demand substitute in the traditional sense. (..) Microsoft had seemed to argue that when assessing market power in IT industries, it would be necessary to take into account not only demand-side and supply-side substitutability, barrier to entry etc., but also the permanent, although unforeseeable and unspecified, threat of a possible technological revolution. In other words, products that are not demand side or supply-side substitutes may well become so in the coming years.’ [6]

 

The complaint of Microsoft thus explicitly reflected the Schumpeterian ideas of the crucial role of innovation with the related dynamic nature of competition taking place on the market for streaming media players. The European Commission, however, discarded this views and chose for what I earlier recognized as the neo-structuralist position in the debate regarding the challenges of high technology markets for competition policy. The proposition that the winning firm of the innovation race, in this case Microsoft with its Windows Media Player, obtained a short-lived dominant position on the market as a necessary reward for its risky investments in innovation was dismissed by the Commission;

 

‘Even if it were to be the case that a dominant position might be limited in time, this does not in itself constitute a limitation to the present market strength of the dominant firm. (..) In fact, the specific characteristics of the market in question (for example, network effects and the applications of barrier to entry) would rather suggest that there is an increased likelihood of positions of entrenched market power, compared to certain ‘traditional industries’. [7]

 

Influenced by the ordoliberal roots of European competition law the European Commission emphasized the risks of structuralised characteristics high technology markets. Especially, the presence of network effects and increasing returns to scale which could result in tipping markets and inefficient market standards motivated the Commission to intervene in the market. The by the Commission hypothesized limited time of market dominance, which plays a crucial role in the Schumpeterian theory by incentivizing firms to make risky investments in innovation, did not weigh up to the identified disadvantages. The reservations of the Commission regarding a dynamic notion of competition seem to be in sharp contrast with the Court of Appeals in the Microsoft cases on the other side of the Atlantic. The U.S. judge frankly acknowledged the dynamic notion of competition;#p#分頁(yè)標(biāo)題#e#

 

‘Rapid technological changes lead to markets in which firms compete through innovation for temporary market dominance, from which they may be displaced by the next wave of product advancements’ [8]

 

According to several authors, the Commission unjustifiably have put not enough weight on the importance of innovation in the young industry which the streaming media player industry was at that time. In fact, they find that the European Commission is penalising successful innovative firms and protecting their competitors. As a result, by downplaying dynamic considerations of innovation this decision will have detrimental welfare effects in the long run. [9] Obviously this are extremely complicated matters to judge on. Because how do we measure this long term dynamic effects which are probably present all around the economic system. A superficial study of the decisions by the Commission in the Microsoft case does however leave (behind?) a feeling of unease. One reasonably could become under the impression that the focus of the investigations is mainly on the structural aspects of the market into question, while the economic effects of Microsofts conduct are limited assessed. Moreover, to the extent that European regulators pay attention to the economic consequences of their decision, it seems that substantial prevalence is rather given to the more easily quantifiable short term economic effects than the economic effects in the long term. This while the latter may outweigh the former to a significant extent. [10]

Nascenting dynamic considerations in European competition policy

 

In this paragraph we will recognize the first steps toward incorporating more dynamic considerations into European competition policy. I find that in the in 2003 introduced regulatory framework regarding electronic communications the principles of dynamic competition are explicitly acknowledged by the European Commission. [11] The major advancement of this framework lies mostly in the realization that high technology markets ask for a fundamental different approach than the current static policy framework provides.

 

The core of this new European regulatory framework is to strike the right balance between price competition in the short run and promoting investments and innovation that will lead to more competition in the long run. [12] With that respect it tries to meet the critique of the Schumpeterian school of competition economics formulated in the previous chapters.

 

The new regulatory framework entails a forward looking assessment of market analysis in which the National Regulatory Authorities (NRA) are mandated to ascertain the innovative process by a three-step process. [13] First, the relevant product or service market must be defined. Second, the NRA should determine whether the relevant market is effectively competitive. Finally, ex ante remedies are allowed to be imposed by the NRA in case effective competition on the market is disturbed by a dominant market position. With the new regulatory framework on electronic communications NRA’s were given an unique regulatory instrument in which a forward-looking assessment was the focus.#p#分頁(yè)標(biāo)題#e#

 

In principle, market definition under sector-specific regulation embraces the guiding principles of general European competition law. As was discussed earlier [14] , market definition under European competition law is assessed on the basis of a systematic assessment of the competitive constraints which are faced by the firms into question. This competitive constraints comprise of substitutes on the demand side of the market and substitutes on the supply side of the market. [15] Potential competition imposing also a competitive constraints on the market behavior of undertakings is under general European competition law not assessed when the market is defined but only at a subsequent stage when market power is assessed. The regulatory framework for electronic communications does define the relevant market in accordance with the same criteria, but some crucial modifications are applied.

 

The specific guidelines regarding market definition under the regulatory framework for electronic communications explicitly states that in the context of rapid innovation the market cannot be defined in a mechanic way.

 

‘Market definition is not a mechanical or abstract process but requires an analysis of any available evidence of past market behavior and an overall understanding of the mechanics of a given sector. In particular, a dynamic rather than a static approach is required when carrying out a prospective, or forward-looking market analysis’ [16]

 

This sector specific regulation thus recognizes that the relevant market definition of a dynamically competitive market runs the risk of rapidly becoming irrelevant as a result of the high level of technological development at these markets. As a result, regulators should exercise the forward-looking approach of the regulatory framework so that the future economic and technological developments can be taken into account. Because, as the guidelines of the regulatory framework acknowledges correct market definition in the context of innovation largely depends on the ‘prospective time horizon considered’. [17]

 

The most interesting part of the new approach with relation to market definition and market power analysis of the regulatory framework is the treatment of potential competition. Competition on a market depends not only on the competitive constraints which are imposed by competitors currently active on the market, but also by undertakings which are not yet present at the market. Whether potential competitors will represent a real competitive constraint on the firm into question is dependent on the conditions of entry in the market. As a result, a theoretical distinction is made in general competition law between ‘short term’ potential competition and ‘medium or long term’ potential competition. [18] In case a firm can ‘switch, without incurring significant costs and risks, to producing the relevant product in response to a small and permanent relative price increase’ [19] in the short run, the competitive constraint represents an immediate threat and must therefore be assessed in defining the relevant market under the test for supply side substitution. But when an undertaking can enter the market only in the medium or long run this represents a too uncertain competitive constraint to be assessed under the definition of the relevant market. [20] Consequently, under the general competition policy framework potential competition is generally accounted for in the subsequent stage of market power analysis instead of in defining the relevant market. [21]#p#分頁(yè)標(biāo)題#e#

 

Officially, the regulatory framework on electronic communications follows general competition law, entailing that potential competition is accounted for in the stage of market power assessment instead of market definition. However, in accordance with our critique on the current the exercise of the current static competition methodology in the context of dynamically competitive markets, [22] the Guideline states;

 

‘Distinguishing between supply-side substitution and potential competition in electronic communications markets may be more complicated than in other markets given the dynamic character of the former’ [23]

 

Indeed, in dynamically competitive markets the devastating creative force of competition can come from the potential competitor not yet present at the market. The time frame under which this potential force of competition materialises may be uncertain. However, ignoring this force of major importance in the context of dynamic competition will lead to too narrow market definitions and overstatements of market power once it attacks. The sector specific regulation for electronic communications acknowledges this in contrast to the general framework of competition policy. Accordingly, for the determination of substitution on the supply side of the market, national competition authorities are required by the regulatory framework to consider ‘the likelihood that some undertakings not currently active on the market may decide to enter the market within a reasonable time frame’ [24] This implicates that under regulation of electronic communications potential competition must be taken into account when the relevant market will be defined. [25] Clearly, a policy improvement in the direction advocated in this thesis. The uncertainty present in dynamically competitive markets, in this case electronic communications, with regard to the timeframe on which investments in innovation will lead to the introduction of new technologies on the market is reflected in the vague standard ‘within a reasonable time frame’. The timing of potential entries for the assessment of substitutes on the supply side of the market is difficult in the electronic communications industry. The commission acknowledges this by stating;

 

‘the time frame to be used to assess the likely responses of other uppliers in case of relative price increase will inevitably depend on the characteristics of each market and should be decided on case-by-case basis’ [26]

 

In addition, the guidelines of the regulatory framework regarding market analysis nuance the focus of the traditional market analysis of general competition law on market share by stating that ‘the existence of a dominant position cannot be established on the sole basis of large market shares’ [27] This is another clear deviation from the current European competition policy framework motivated by incorporating dynamic considerations. Current case law holds that a high market share is evidence of a dominant position as was discussed earlier. [28] As was argued in chapter /../ current market shares are however of negligible relevance for assessing market power in the context of high levels of innovation. [29]#p#分頁(yè)標(biāo)題#e#

 

The more dynamically orientated regulatory framework for electronic communications have already proven its value in practice. The electronic communications sector in Europe is experiencing major transformations as a result of technological developments. Especially, it is expected that the emerging Voice over Internet Protocol (VoIP) services will have a revolutionary impact on communication services the coming years. Possibly the traditional telecommunications networks (PSTN) which currently provide the major part of public telephone services could be totally replaced by emerging forms of communication. [30]

 

Defining the relevant market in this context should also take into account potential competition instead of only assessing this at a subsequent stage of market power analysis. If not, the relevant market will be defined too narrow and market power will be overstated. A recent illustration of this challenge to competition policy is a recent opinion issued by the French Competition Authority. The competition authority asked the French regulator ‘ARCEP’ to include a new VoIP service called Voice over broadband (VoB) in its market definition with relation to the market of fixed telephony in France. [31]

 

By the same token, competition authorities scrutinizing markets for mobile internet should increasingly include the potential competition by emerging 4G technologies imposed on the current 2G and 3G services in defining the relevant market. [32] Earlier decisions by the European Commission have been criticized for not incorporating the latest technological threats on the relevant product market. For instance in the case of the merger between Vodafone and Manesmann. [33] While the European Commission recognized that the leadership of the new consolidated firm would be short-lived as a result of the potential competitive threat of 3G mobile networks, the Commission opposed the consolidation. [34]

 

The Schumpeterian view, advocated in this thesis, which asked for modifying the current methodology of market definition and market power analysis is partly reflected in the new framework. However, it must be emphasized that the new regulatory framework is only applicable to a limited number of industries. In the general competition policy framework, which is also from time to time applied on other high technology markets than electronic communication industries, dynamic considerations are still assessed to a very limited extent. Comparable modifications as has been introduced in the regulatory framework for electronic communications are for this reason also desirable in situations that the European competition policy targets other high technology markets in which a high level of innovation is present.