The Assessment of Single SMP : Lessons Learned from the First Round Market Review

The concept of significant market power (SMP) is enshrined by the European regulatory framework for electronic communications networks and services to the extent to which national regulatory authorities (NRAs) in most circumstances can only regulate undertakings with SMP. According to this regulatory framework, both the definition and the methods for the assessment of SMP are equivalent to those of dominance under Article 82 EC Treaty. Although theories already suggest that the assessment of SMP should be different from dominance to some extent, empirical research has not been fully explored. This paper aims to sheds some light on the empirical differences between the assessment of single SMP and single dominance based on the decisions of the European Commission under Article 7 of Framework Directive in the first round of market review. After examining these decisions, this paper first finds that when using a very high/low market share as evidence of market power the regulatory regime takes a higher threshold than the antitrust regime. Subsequently, on a closer level it looks at the appraisal of other criteria for the assessment of SMP by NRAs and furthermore categorizes them into three groups due to their different values: direct criteria, collaborating criteria and not very important criteria