The Centre for Antitrust and Regulatory Studies (CARS), responsible for this
yearbook, also prepares the publication of textbooks and monographs. An Englishlanguage
textbook European Audiovisual Sector: Where business meets society’s needs
written by Dr. Ewelina D. Sage is one of the latest publication in this series
Smart Cities - Standards for classifying services and related information in ...Smart Cities Project
This report describes the role of standards in local government. It draws on the experience of esd-toolkit in the UK and describes how controlled vocabularies maintained by esd-toolkit help municipalities improve their service delivery. Standards are viewed within the context of a consistent model for the public sector.
Media audiovizualne. konflikt regulacyjny w dobie cyfryzacji a book reviewMichal
The book under review here is entitled Audiovisual Media: regulatory conflict in
the digitalisation era by Katarzyna Chalubinska- Jentkiewicz. As the title suggests,
I expected it to be a monograph on new regulatory problems in the increasingly
digital audiovisual field. The sector itself is well known to cause competence conflicts
between the as many as three different regulatory bodies overseeing it in Poland: the
national telecoms regulator (the UKE President), the audiovisual media supervisory
body (the KRRiT) and the competition authority (the UOKiK President). The impact
of the European Commission can also not be overlooked. The book does indeed
deal in great detail with what is seen as the ‘regulatory conflict’ in the audiovisual
field but the approach applied therein is that of the theory of administration and
administrative/constitutional law rather than that of market regulation. As a result,
the analysis focuses primarily on the perceived ‘conflict’ between Poland’s interests
and regulatory competences and the impact exercised by the European Union as
a whole, rather than on any existing or potential internal conflicts. Key to the entire
analysis is the contraposition of the notion of ‘public interest of a nation’ (State) and
the ‘general interest of the EU’ whereby the special characteristics of ‘national’ public
interest are associated with the notion of ‘public morality’ and also, ‘public mission’.
Smart Cities - Standards for classifying services and related information in ...Smart Cities Project
This report describes the role of standards in local government. It draws on the experience of esd-toolkit in the UK and describes how controlled vocabularies maintained by esd-toolkit help municipalities improve their service delivery. Standards are viewed within the context of a consistent model for the public sector.
Media audiovizualne. konflikt regulacyjny w dobie cyfryzacji a book reviewMichal
The book under review here is entitled Audiovisual Media: regulatory conflict in
the digitalisation era by Katarzyna Chalubinska- Jentkiewicz. As the title suggests,
I expected it to be a monograph on new regulatory problems in the increasingly
digital audiovisual field. The sector itself is well known to cause competence conflicts
between the as many as three different regulatory bodies overseeing it in Poland: the
national telecoms regulator (the UKE President), the audiovisual media supervisory
body (the KRRiT) and the competition authority (the UOKiK President). The impact
of the European Commission can also not be overlooked. The book does indeed
deal in great detail with what is seen as the ‘regulatory conflict’ in the audiovisual
field but the approach applied therein is that of the theory of administration and
administrative/constitutional law rather than that of market regulation. As a result,
the analysis focuses primarily on the perceived ‘conflict’ between Poland’s interests
and regulatory competences and the impact exercised by the European Union as
a whole, rather than on any existing or potential internal conflicts. Key to the entire
analysis is the contraposition of the notion of ‘public interest of a nation’ (State) and
the ‘general interest of the EU’ whereby the special characteristics of ‘national’ public
interest are associated with the notion of ‘public morality’ and also, ‘public mission’.
Présentation du département "Etudes & recherches" du CSA lors de la conférence "Transforming audiences, transforming societies", dans le cadre du programme européen COST (Belgrade, septembre 2013)
http://www.cost-transforming-audiences.eu/node/1029
Sieci szerokopasmowe w polityce telekomunikacyjnej a book reviewMichal
A new book from Professor Stanisław Piątek, an established authority on
telecommunications law, brings the reader closer to the inner workings of broadband
technology in its legal environment. The title reflects the focus of telecoms policy
on access whereby the only access that matters is to the broadband network in its
many variations. The subject matter itself makes the book worth reading, particularly
in the absence of other major Polish works on this topic. Even if some authors
regarded broadband technologies as obsolete years ago1, in reality it still represents
a lion’s share of the telecoms business. Professor Piątek himself is well aware of the
historical and transitory nature of the subject matter when he defines broadband not
by association with any particular technology but as the ability of whatever technology
available at any given moment to provide a certain minimum transmission speed.
Thus the central notion is open to absorb technologies nonexistent as of yet. This in
turn may pose serious regulatory issues as to what future industries will be subject to
regulation, particularly since the distinction between content and carrier regulation
is becoming increasingly blurred.
Openlaws.eu is funded by JUST/2013/ACTION GRANTS Grant Agreement Number 4562, led by the University of Amsterdam during the period March 2014-2016. The case study is of the European institutions' provision of free access to European Union law, in terms of cases, legislation, regulatory instruments and academic-expert analysis. The analysis explains how and whether the environment (institutions, policies and the legal community) is finally developing in which open access models such as openlaws.eu can take root and flourish. The key functionalities of the existing legal publishing system are summarized and described. This activity involves a review of the existing information systems and legal databases already in use and will produce a specification of the requirements of the system on the basis of the analysis of social, legal and market requirements. The case studies represent the key socio-economic and legal aspects of the services and illustrate the main functionalities, structure and operation of the proposed services. The findings are informed by key informant interviews and form a working assumption. The interviews are supported by the literature review, and the insights of workshops (including the LASPSI workshop on 3 September 2014).
The breadth of stakeholders interviewed is broad and includes experts from: academia, Non-Departmental Public Bodies (NDPB), trading funds, private entrepreneurs, corporations, standards bodies, non-governmental organizations and government policy officials with both domestic and international responsibilities. Note that the case studies rely on a Soft Systems Methodology (SSM) framework in order to identify the key components of the problem and provide the key specifications for the system that is to be built, while the third activity will rely on a combination of desk research, in-depth interviews, and focus groups.
Argument (598 words):
We argue that the European legal informatics space is unique in seven respects compared to national case studies.
1. The decision to make access to documentation freely available at production and then no charge was made in the context of no developed market actors to challenge the decision to ‘super-nationalise’ the state provision of legal information and case law reportage. There was no precedent for a multilingual economic and political area such as this, with four original languages and a precedent setting ‘Supreme Court’.
2. The essential role of European law in creating the ‘acquis communitaire’ led to a political decision to make law as widely available as possible. The benefits in creating an essential knowledge of European law amongst a critical mass of advocates at national levels was considered so important from the 1950s onwards that there was no serious resistance beyond basic budgetary questions.
As a result, it may be argued that European legal data is so open to reuse and access that it is the ‘exception that proves the rule’.
To regulate or not to regulate – economic approachMichal
The aim of this paper is to present an Indefeasible Right of Use (IRU) as a possible
remedy for telecom infrastructure EU projects that (in Poland) have been lagged
behind the time. Thanks for IRU, Beneficiaries of these EU projects will be able
to save both: time and money and will finish projects successfully. The author
discusses two possible methods of implementing IRU: via regulatory obligation and
via incumbent’s goodwill. The author proposes a game theory model with payoffs
depending on regulator’s and incumbent’s strategies. Using a game theory tree,
the author shows that if only the incumbent is willing to offer his own network,
IRU may be signed and most delays in EU projects disappear. The success is not
so obvious while implementing IRU as an obligation – in this case EU projects
will probably fail.
The European Commission published a White Paper on 2 April 2008 on damages
actions for breach of EU antitrust rules. The content of the White Paper is since
then being prepared to be converted into EU legislation on private antitrust
enforcement. This paper presents the developments in private antitrust enforcement
in Poland after 2 April 2008. It commences with an outline of EU actions in
this field which act as an introduction to the more detailed analysis of recent
jurisprudential and legislative developments in Poland. The latter part of the paper
covers, in particular, the 2009 Act on the Pursuit of Claims in Group Proceedings
and the 2011 Act Amending the Civil Procedure Code and Some Other Acts which
abolishes all specific elements of commercial proceedings, including the statutory ‘non-admission of evidence’ principle. These two legal acts are assessed in order
to establish whether their introduction is likely to help facilitate private antitrust
enforcement in Poland and to consider to what an extent are these developments
responding to the challenges outlined by the European Commission.
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Similar to European audiovisual sector – where business meets society’s needs a book review
Présentation du département "Etudes & recherches" du CSA lors de la conférence "Transforming audiences, transforming societies", dans le cadre du programme européen COST (Belgrade, septembre 2013)
http://www.cost-transforming-audiences.eu/node/1029
Sieci szerokopasmowe w polityce telekomunikacyjnej a book reviewMichal
A new book from Professor Stanisław Piątek, an established authority on
telecommunications law, brings the reader closer to the inner workings of broadband
technology in its legal environment. The title reflects the focus of telecoms policy
on access whereby the only access that matters is to the broadband network in its
many variations. The subject matter itself makes the book worth reading, particularly
in the absence of other major Polish works on this topic. Even if some authors
regarded broadband technologies as obsolete years ago1, in reality it still represents
a lion’s share of the telecoms business. Professor Piątek himself is well aware of the
historical and transitory nature of the subject matter when he defines broadband not
by association with any particular technology but as the ability of whatever technology
available at any given moment to provide a certain minimum transmission speed.
Thus the central notion is open to absorb technologies nonexistent as of yet. This in
turn may pose serious regulatory issues as to what future industries will be subject to
regulation, particularly since the distinction between content and carrier regulation
is becoming increasingly blurred.
Openlaws.eu is funded by JUST/2013/ACTION GRANTS Grant Agreement Number 4562, led by the University of Amsterdam during the period March 2014-2016. The case study is of the European institutions' provision of free access to European Union law, in terms of cases, legislation, regulatory instruments and academic-expert analysis. The analysis explains how and whether the environment (institutions, policies and the legal community) is finally developing in which open access models such as openlaws.eu can take root and flourish. The key functionalities of the existing legal publishing system are summarized and described. This activity involves a review of the existing information systems and legal databases already in use and will produce a specification of the requirements of the system on the basis of the analysis of social, legal and market requirements. The case studies represent the key socio-economic and legal aspects of the services and illustrate the main functionalities, structure and operation of the proposed services. The findings are informed by key informant interviews and form a working assumption. The interviews are supported by the literature review, and the insights of workshops (including the LASPSI workshop on 3 September 2014).
The breadth of stakeholders interviewed is broad and includes experts from: academia, Non-Departmental Public Bodies (NDPB), trading funds, private entrepreneurs, corporations, standards bodies, non-governmental organizations and government policy officials with both domestic and international responsibilities. Note that the case studies rely on a Soft Systems Methodology (SSM) framework in order to identify the key components of the problem and provide the key specifications for the system that is to be built, while the third activity will rely on a combination of desk research, in-depth interviews, and focus groups.
Argument (598 words):
We argue that the European legal informatics space is unique in seven respects compared to national case studies.
1. The decision to make access to documentation freely available at production and then no charge was made in the context of no developed market actors to challenge the decision to ‘super-nationalise’ the state provision of legal information and case law reportage. There was no precedent for a multilingual economic and political area such as this, with four original languages and a precedent setting ‘Supreme Court’.
2. The essential role of European law in creating the ‘acquis communitaire’ led to a political decision to make law as widely available as possible. The benefits in creating an essential knowledge of European law amongst a critical mass of advocates at national levels was considered so important from the 1950s onwards that there was no serious resistance beyond basic budgetary questions.
As a result, it may be argued that European legal data is so open to reuse and access that it is the ‘exception that proves the rule’.
To regulate or not to regulate – economic approachMichal
The aim of this paper is to present an Indefeasible Right of Use (IRU) as a possible
remedy for telecom infrastructure EU projects that (in Poland) have been lagged
behind the time. Thanks for IRU, Beneficiaries of these EU projects will be able
to save both: time and money and will finish projects successfully. The author
discusses two possible methods of implementing IRU: via regulatory obligation and
via incumbent’s goodwill. The author proposes a game theory model with payoffs
depending on regulator’s and incumbent’s strategies. Using a game theory tree,
the author shows that if only the incumbent is willing to offer his own network,
IRU may be signed and most delays in EU projects disappear. The success is not
so obvious while implementing IRU as an obligation – in this case EU projects
will probably fail.
The European Commission published a White Paper on 2 April 2008 on damages
actions for breach of EU antitrust rules. The content of the White Paper is since
then being prepared to be converted into EU legislation on private antitrust
enforcement. This paper presents the developments in private antitrust enforcement
in Poland after 2 April 2008. It commences with an outline of EU actions in
this field which act as an introduction to the more detailed analysis of recent
jurisprudential and legislative developments in Poland. The latter part of the paper
covers, in particular, the 2009 Act on the Pursuit of Claims in Group Proceedings
and the 2011 Act Amending the Civil Procedure Code and Some Other Acts which
abolishes all specific elements of commercial proceedings, including the statutory ‘non-admission of evidence’ principle. These two legal acts are assessed in order
to establish whether their introduction is likely to help facilitate private antitrust
enforcement in Poland and to consider to what an extent are these developments
responding to the challenges outlined by the European Commission.
Legislative developments in the aviation sector in 2011 in polandMichal
The Polish Aviation Law Act of 3 July 2002 was amended six times in
2011. The only major change introduced in this period resulted from the
Amendment Act to the Aviation Law Act of 30 June 2011, most of which
entered into force 30 days after its publication1. In fact, changes introduced
thereby were so widespread and crucial to the entire aviation sector that it
can easily be referred to as a completely new law. Considerable effort went
into the preparation of this Act – its first draft was presented as early as 2009
followed by long consultations and the ultimate introduction of a number of
further changes.
Legislative developments in rail transport in 2011 in polandMichal
Most amendments of the Polish rail transport law in 2011 concerned the
organisation of rail transport including: improvements in timetable changing
procedures; mechanisms to ensure the observance and early publication of
timetables; interoperability of the rail system and; certification of train drivers.
Introduced were also some changes meant to restructure the incumbent state
rail operator (in Polish: Polskie Koleje Państwowe; hereafter PKP).
Legislative and jurisprudential developments in the telecommunications sector...Michal
The Telecommunications Law Act1 (in Polish: Prawo Telekomunikacyjne,
hereafter: PT) was subject to a number of amendments in 2011 introduced by
the Amendment Act of 14 April 2011 and the Amendment Act of 16 September
2011 as well as by the separate Act of 30 June 2011 on the implementation of
digital terrestrial television.
In response to the reservations expressed by the European Commission
regarding the compatibility of the way in which regulatory obligations
concerning the setting of wholesale prices are imposed in Poland, the
Amendment Act of 14 April 2011 changed Articles 39 and 40 PT2. The direct
reason for this amendment was set out in a reasoned opinion prepared by the
Commission in October 2010 under Article 258 TFEU3. It was stated therein
that Polish rules regarding the establishment of wholesale prices may give
rise to legal uncertainty and may be discriminatory towards certain telecoms
operators.
Legislative and jurisprudential developments in the postal sector in 2011 in ...Michal
Postal services in Poland are governed by the Postal Law Act of 2003 (in
Polish: Prawo Pocztowe)1 which maintains the monopoly of the public operator
Poczta Polska with respect of letters weighing up to 50 grams. However, Poland
will have to fully liberalize its postal services market by 31 December 2012.
For this reason, the Government adopted on 5 October 2010 Assumptions
for the Draft Postal Law Act as proposed by the Minister of Infrastructure2.
However, the Draft was not placed on the Government’s legislative agenda
for 2011. Thus, the majority of legislative work will have to be completed in
2012, a fact that jeopardizes the implementation of Directive 2008/6/EC. The
latter indicates 31 December 2012 as the deadline beyond which Member
States must not maintain a privileged position of operators providing universal
postal services
Legislative and jurisprudential developments in the energy sector in 2011 in ...Michal
The year 2011 brought about fundamental changes to the legal framework
affecting energy markets in Poland. The most important of these changes
concerned rules on obligatory public trading of electric energy (so-called,
exchange obligation) and the implementation of Nuclear Facilities Projects
and Obligatory Natural Gas Reserve System Projects.
Key legislative and jurisprudential developments of Polish Antitrust Law in 2011Michal
The article presents key developments in Polish antitrust legislation and jurisprudence
of 2011. Its legislative part focuses on the renewal of Polish Group Exemption
Regulations for vertical agreements, specialization and R&D agreements as well as
cooperation agreements in the insurance sector. Noted is also the sole amendment
of the Competition Act introduced in 2011 which concerns the financial liability of
the Polish competition authority. The article covers also the new Guidelines of the
UOKiK President on the criteria and procedures of merger notifications. Presented
in its jurisprudential part is a number of 2011 rulings, mainly those rendered by
the Supreme Court and the Court of Appeals, divided according to their subject
matter with respect to particular types of restrictive practices and other problems
related to the decision-making process of the UOKiK President.
Is the parallel competence set out in regulation 12003 totally clear. case co...Michal
With a motion dated 28th of April 2005 submitted to the President of the Office of
Competition and Consumer Protection (in Polish: Prezes Urzędu Ochrony Konkurencji
i Konsumentów; hereafter, UOKiK President), Tele2 Polska Sp. z o.o. (currently:
Netia S.A., hereafter, Applicant) requested the initiation of antitrust proceedings
against Telekomunikacja Polska S.A. (hereafter, TP). The Polish incumbent, TP, was
alleged to have engaged in practices restricting competition covered by Article 8(1)
and 8(2)(5) of the Act on Competition and Consumer Protection of 15th December
2000 (hereafter, Competition Act 2000) and in Article 82 of the Treaty establishing
European Community (hereafter, TEC), presently, Article 102 of the Treaty on the
functioning of the European Union (hereafter, TFEU).
How to facilitate damage claims private enforcement in croatiaMichal
Ever since the Croatian Competition Agency started functioning in 1997, public
enforcement of competition law has been the norm. Civil actions for breaches of
competition law have been the exception in Croatia. The existing legislation in the
area of competition law makes no effort to incentivise private enforcement. There
are no specific rules in the Competition Act 2009 dedicated to civil actions, except a
single provision that assigns jurisdiction over damages claims to commercial courts.
General tort law is applicable in order to prove damages. A number of issues arise
here mostly due to the complexity of competition cases. These issues were described
in the European Commission’s White Paper on Damages Actions for Breach of
EC Antitrust Rules (2008). The level of uncertainty as regards the outcome of the
claim is high. It seems that special rules need to be adopted in Croatia in order
to improve the position of the injured side. The paper deals with a number of
procedural and substantive law issues relevant to the facilitation of civil proceedings
for antitrust damages. A domestic law perspective is applied taking into account
recent developments in EU competition law and policy.
Differentiation between entrepreneurs and its legal consequences. case commentMichal
The discussed judgment was rendered in relation to the dispute between the
President of the Polish Competition Authority (hereafter, UOKiK President) on the
one hand and the Polish Football Association and the broadcaster Canal+ on the
other hand. These two undertakings were party to an agreement on exercising media
rights to football games of the two highest classes of the Polish league. The core of
the dispute consisted of the possibility of deeming the pre-emption right reserved
for Canal+ as a contractual provision restricting competition. The Courts involved
were also forced to answer the question whether performing tasks of a public service
character justified a decrease in the fine imposed by the competition authority
Development of the judicial review of the decisions in slovakiaMichal
The article provides an analysis of the most important judgments rendered by
Slovak courts at the end of 2010, in the course of 2011 and at the beginning of 2012.
The article focuses solely on judicial review of decisions issued by the National
Competition Authority of the Slovak Republic.
Slovak courts dealt with several key issues concerning public enforcement
of competition law such as: the application of the so-called ‘general clause’;
competences of the Slovak competition authority in regulated sectors; and the
application of the economic continuity test. Some of the conclusions resulting from
these judgments may be considered disputable. It may be argued, in particular, that
they may jeopardize the effective enforcement of competition law in the Slovak Republic. At the same time, the discussed jurisprudence has managed to clarify
a number of key issues which had been subject to debate for a number of years. The
article presents a review of these judgments, summarizes their key conclusions and
considers their possible impact on the system of public enforcement of competition
law in the Slovak Republic. The article is divided into a number of parts, each of
which covers an individual case, the titles of which refers to the main topic that was
under discussion in the presented judgment.
Commission guidelines on assessment of significant market power. case commentMichal
The ruling of the Court of Justice (hereafter, CJ) in the PTC case concerns the
interpretation of Article 58 of the Treaty of Accession1 establishing an obligation
to publish EU legal acts in the languages of Member States which accessed the EU
on 1 May 2004. A controversy emerged in this context whether the said obligation
also applied to European Commission Guidelines on relevant market analysis and
the assessment of significant market power in the field of electronic communication
(hereafter, 2002 Guidelines)2. In general, guidelines issued by the Commission are
regarded as acts of soft law, also called innominate acts or sui generis acts.
In the fifth year of its activities CARS focused on the pursuit of a number of
goals set in its founding documents. It was a particularly busy year for its Publishing
Programme which saw the issue of 6 separate titles: two monographs, an Englishlanguage
textbook, a collective works and two volumes of the ‘Yearbook of Antitrust
and Regulatory Studies’ [a special edition vol. 4(4) and the yearly vol. 4(5)]. 2011 was
also a very active period for the CARS Open PhD Seminar series with four meetings
taking place throughout the year. Several CARS members engaged also in the second
edition of a research project dedicated to regulatory and antitrust aspects of airport
activities (first phase of the project completed in 2010).
What do limitation periods for sanctions in antitrustMichal
Limitation periods represent a legal safeguard for a person who has once
broken the law in order not to be put at risk of sanctions and other legal liabilities
for an indefinite amount of time. By contrast, public interest can sometimes require
that a person who has committed a serious breach of law cannot benefit from
limitation periods and that it is necessary to declare that the law had indeed been
infringed and that legal liability shall be expected irrespective of the passage of
time.
Universal service obligation and loyalty effectsMichal
In network industries, a Universal Service Obligation (USO) is often seen as a burden
on an incumbent, which requires compensation for the net cost of such service
provision. This paper estimates the effects of consumer loyalty as an intangible
benefit of USO in the postal sector. In doing so, the agent-based modelling (ABM)
approach is applied, which makes it possible to model the behaviour of boundedly
rational consumers and is thus particularly appropriate for taking into account
intangibles considerations. The analysis shows that loyalty is crucial to whether
the USO uniform pricing constraint results in loss-making or profitability. Under
certain conditions and in the presence of a loyalty parameter, uniform pricing gives
a USO provider an advantage, when the size of the rural area is sufficiently big
and a disadvantage, if its size is too small. This finding is counterintuitive as USO
providers in countries with sparsely populated areas are typically expected to incur
a significant net cost of USO.
2010 and 2011 eu competition law and case law developments with a nexus to po...Michal
This third overview of EU competition and sector-specific regulatory jurisprudential
and case law developments with a nexus to Poland covers the years 2010 and 2011.
This period of time is worth noting for several reasons. First, EU courts delivered
a significant number of judgments in ‘Polish’ cases including an increased number of
preliminary rulings. Second, 2010-2011 developments were dominated by judgments
and decisions concerning telecoms. Finally, the Commission adopted only a handful
of Polish State aid decisions following a formal investigation procedure under
Article 108(2) TFEU.
EU Courts’ Jurisdiction over and Review of Decisions Imposing Fines in EU Com...Michal
The aim of this article is to analyse the extent of judicial review exercised by the EU
courts over the European Commission’s decision imposing fines in EU competition law. When considering appeals against fines in competition law, the position of
the EU courts are limited to a review of imposed fines in respect of the European
Commission’s Guidelines instead of an exercise of a more comprehensive appellate
review. The review should not only be a control of legality but it has to be an unlimited
merits control. An appeal control should be directed to review fully the facts and to
control proportionality of the imposed fines. The article analyses also the question
of the protection of fundamental rights in the scope of the review over decisions
imposing fines. For that purpose, the article provides also a comparative analysis of
the selected judgments of the EU courts and the European Court of Human Rights.
Procedural Autonomy of Member States and the EU Rights of Defence in Antitrus...Michal
The general rule concerning the application of EU law in the Member States is
that, unless the procedural issues are directly regulated in EU primary or secondary
law, the Member States possess a so-called ‘procedural autonomy’. This rule applies
fully to national antitrust proceedings, where the presumed infringement may
affect trade between EU Member States (decentralised EU antitrust proceedings). However, the procedural guarantees offered to undertakings in EU antitrust
proceedings before the European Commission, often referred to the undertakings’
‘rights of defence’, also form a part of the procedural acquis of EU law. This article
examines the question whether that procedural acquis, stemming mainly from EU
courts’s jurisprudence and formulated with regard to the proceedings before the
European Commission, should be applied as a standard in national (i.e. Polish)
antitrust proceedings where EU law applies.
Rights of an Undertaking in Proceedings Regarding Commitment Decisions under ...Michal
The purpose of this article is to present and define the rights of the undertakings
concerned, which are parties to commitment decision proceedings, and to
discuss whether the rights granted to the undertakings are exercised. As regards
commitment decisions the main right of an undertaking/a party to the proceedings
is the right to defend its own interests in negotiations with the Commission. Other rights, such as the right to a transparent procedure, the rights resulting from the
principle of legal certainty and legality of sanctions, and the right to appeal, are also
analyzed. The article argues that these rights are not adequately enforced in EU
competition law. This is a result of a strong negotiating position of the Commission
and the fact that it acts both as a prosecutor and decision-renderer. Additionally,
the scope of European courts’ review is so narrow that it does not guarantee that an
undertaking is protected against offering excessive and unreasonable commitments.
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European audiovisual sector – where business meets society’s needs a book review
1. VOL. 2012, 5(7)
Ewelina D. Sage, European Audiovisual Sector –
Where business meets society’s needs,
Wydawnictwo Naukowe Wydziału Zarządzania
Uniwersytetu Warszawskiego, Warszawa 2011, 284 p.
The Centre for Antitrust and Regulatory Studies (CARS), responsible for this
yearbook, also prepares the publication of textbooks and monographs. An English-
language textbook European Audiovisual Sector: Where business meets society’s needs
written by Dr. Ewelina D. Sage is one of the latest publication in this series.
I was asked to review the book so I have read it with a mixture of interest and
curiosity because the sector covered and the issues raised so far have not entered the
mainstream of legal publishing in Poland. In fact, Dr Sage’s book appears to fill a gap
in the Polish legal literature regarding the European Audiovisual Sector. This also
means that the author is far from standing on the shoulders of giants; on the contrary,
she takes on the unenviable task of charting uncharted waters. This is more so for
an English-language book which appears to take the concept of a narrative textbook
closer to the case book model of common-law countries, such as the UK and the US.
In this context, what strikes the reader first, is that the book is thoughtfully
structured, and carefully developed along three main pillars: socio-economic goals,
external dimension and internal competitiveness aspects, including antitrust, mergers
and State aid rules. It gives a bird’s eye view on different areas, seldom presented
together. In doing so, the author uniquely mixes areas of the EU’s core competence
with those where harmonisation efforts have so far been limited. The resulting book
lays down in barely 230 pages of descriptive text (plus various annexes) all the key
concepts, developments and tensions in the sector which affects, directly or indirectly,
the lives of us all (the latest data confirms that Europeans watch – on average -
some 3–4 hours of linear television broadcast a day and that, while new media and
consumption methods have strongly entered our lives and living rooms, traditional
TV consumption is on the increase and radio is coping well with new challenges).
To the reader, whether new to the subject or relatively experienced, the book offers
an overall perspective on the current EU regulatory framework and key decisions
affecting the EUR multi-billion audiovisual services industry (the audiovisual
media services part of the editorial content sector generates around EUR 80 billion
in turnover). It should prove itself of interest to a wide audience, from students
to academics to practitioners and, possibly, also lawmakers. Readers should not
be discouraged by the great level of detail and the variety of issues raised by the
YEARBOOK
of ANTITRUST
and REGULATORY
STUDIES
www.yars.wz.uw.edu.pl
Centre for Antitrust and Regulatory Studies,
University of Warsaw, Faculty of Management
www.cars.wz.uw.edu.pl
Peer-reviewed scientific periodical,
focusing on legal and economic
issues of antitrust and regulation.
Creative Commons Attribution-No
Derivative Works 3.0 Poland License.
2. YEARBOOK OF ANTITRUST AND REGULATORY STUDIES
302 BOOKS REVIEWS
author; rather, they should use this book as a comprehensive snapshot of the current
patchwork of binding and non-binding, general and specific, rules and regulations.
A basic knowledge of EU law is likely to be helpful, but it is not essential, as the author
walks readers through basic concepts and notions before embarking on intricate issues
specific to the audiovisual sector.
New readers and students are likely to particularly appreciate several elements
that facilitate navigating through the EU maze, such as numerous charts, summaries
and graphs. These visuals enliven what would otherwise remain a dry legal text. For
didactic and, possibly, self-learning purposes, following a style typical for common law
textbooks, the author also proposes short revision questions which help to absorb the
key elements in each chapter.
Dr. Sage takes particular interest, and shows great acumen, in summarising key
individual decisions and judgements - instruments which play an important role in
developing the audiovisual sector and making it part of the internal market. Several
of these developments have taken place very recently, including the second half of
2011. For example, the author timely flags important issues of principle, arising, in
particular, from the Court of Justice’s ruling in the Premier League case (Joined Cases
C-403/08 and C-429/08). In the coming years, academia will certainly review the ruling
(and the Court of Justice’s growing jurisprudence on copyright and free movement/
competition rules) in more detail while its full impact on content licensing practices
becomes clearer.
When reading the book, it appears that, following the completion of the single
market for goods, the free provision of services, in particular audiovisual services,
could be considered a possible target for further harmonisation efforts. This is already
the case with the Services Directive. However, instant, borderless and secure access
to content, including satellite and online broadcasts, is key for a large number of
Europeans living and working abroad, and current largely national rules do not
provide such access in a manner suitable for the digital economy.
The need for further harmonisation also arises as regards music rights essential
for many audiovisual services. Access to music rights is complex and their licensing,
traditionally, in the hands of national collecting societies, often accused of operating
in a non-transparent manner and in breach of the competition rules (see, e.g. various
decisions adopted by UOKiK concerning ZAiKS and the Commission’s CISAC case).
It is therefore relevant and may be further reflected in future editions of the book
that, in July 2012, the Commission adopted a long-awaited proposal for a framework
directive on collective rights management, aimed at improving governance and
transparency of collecting societies and facilitating cross-border licensing of online
music rights.
Taking into account progress in the area to date, the book is likely to serve its
purpose for a while; however, even if efforts to progress towards a true European
policy for audiovisual services were to gain further momentum, the book can be
seen as an important reference for the state of play at the end of 2011. It should
facilitate learning and understanding the audiovisual maze; it will also hopefully make
readers question some well-established concepts, beyond the revision boxes. One of
3. VOL. 2012, 5(7)
European Audiovisual Sector – Where business meets society’s needs 303
such questions could be whether the audiovisual sector is indeed ‘where business
meets society’s needs’ or, rather, ‘where society’s needs meet powerful businesses (or
business interests)’.
In sum, I am happy to recommend Ms Sage’s book to lay and professional
readers who want to understand the legal and regulatory concepts underpinning the
importance of the European Audiovisual Sector. I should also praise the efforts of Dr.
Sage to prepare an original, timely and attractive textbook in a language to prepare
new generations that will, hopefully, also partake in the discussions about the future
shape of this sector.
Krzysztof Kuik
LL.M. (K.U. Leuven), LL.M. (NYU), Head of Unit – Antitrust: Media and Sport,
DG Competition, European Commission
