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Workshop Paper / Transport

3rd European Rail Transport Regulation Summary: Sector Specific and Competition Regulation

Author(s): HOLTERMAN Martin, FINGER Matthias, ROSA Andrea

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The present document summarises the content of the presentations delivered during the forum as well as the ensuing discussion. This report is divided in two sections: summaries of the presentations and the synthesis of the debate.

Presentations were delivered by representatives of all different types of stakeholders, including the European Commission, national regulators and competition authorities, transport companies, and infrastructure managers, as well as by a number of knowledgeable academics. Each of them has offered his/her view on the relationship between sector specific and competition law, based on the following initial questions:

  • Is there any room for competition regulation in the railway sector? 
  • What should fall into competition regulation? What into sector specific regulation? 
  • What problems can arise from the unclear delimitation between competition regulation and sector specific regulation? 
  • What are the advantages and disadvantages of competition and of sector specific regulation respectively? Advantages and disadvantages for whom?

The bulk of the attention was focused on the tension between the distribution of responsibilities between competition authorities and sector specific regulators that one might like to see and the distribution of responsibilities mandated by EU law. Regarding the former, a number of possible delimitations were proposed, some based on actual practice, and others argued from first principles. Regarding the latter, a lot of attention was devoted to the implications of the EU Court of Justice’s judgment in Deutsche Telekom v. Commission, where the Court held that EU competition law is applicable to all industries, regardless of whether they are subject to sector specific regulation. A number of participants explained how this tension is exacerbated by the increasing prevalence of private enforcement in competition law.

Another topic that received significant attention was the actual development of regulatory intensity over time, as compared to the expectations of policy makers when liberalisation first began. Participants tended to agree that sector specific regulators were here to stay to a much greater extent than originally anticipated, because they were given a number of extra tasks, in addition to the tasks originally envisaged.