The law of the World Trade Organization and the communications law of the European Community: On a path of Harmony or Discord?

Journal of World Trade

Volumn 41, Issue 4, 2007, Pages 833-878

  Burri Nenova, Mira ^a  

^a NATIONAL SCIENCE FOUNDATION   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EUROPEAN UNION; LEGISLATION; REGULATORY FRAMEWORK; TELECOMMUNICATION; TRADE POLICY; WORLD TRADE ORGANIZATION;

EURASIA; EUROPE;

EID: 34548310400     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (378)

1. Ian Walden, "The international Regulatory Regime", in Ian Walden and John Angel (eds), Telecommunications Law (London: Blackstone, 2001), p. 346.
2. A good overview of the early discoveries and developments in the telecommunications sector is provided by David Gillies and Roger Marshall, Telecommunications Law, Vol. 1 (2nd edn, London: Butterworths LexisNexis, 2003), pp. 2-3.
3. It was as early as 1891 when the first submarine telephone cable was laid between England and France. It was operated by the Central Telegraph Office in London and enabled telephone conversations between specially equipped booths in London and Paris. The first transatlantic telephone call was made in 1915 and connected Virginia and Paris but was only experimental. In 1926, Bell Laboratories and the British Post Office engineered the first transatlantic two-way communication.
4. The International Telegraph Union was transformed into the International Telecommunication Union (ITU) in 1932 (combining the International Telegraph Convention of 1865 and the International Radiotelegraph Convention of 1906). In 1947, the ITU became a specialized agency of the United Nations and almost all sovereign countries are members (currently 189 members). The ITU's principal function is to promote the efficient use of telecommunications services and to harmonize national interests. It is further responsible for the international coordination of the use of the radio spectrum (including for non-telecommunications purposes such as broadcasting, navigation and radar). On the ITU, see Walden, as note 1 above, pp. 346-369;
5. Christian Koenig and Jens-Daniel Braun, "The International Regulatory Framework of EC Telecommunications Law: The Law of the WTO and the ITU as a Yardstick for EC Law", in Christian Koenig, Andreas Bartosch and Jens-Daniel Braun (eds), EC Competition and Telecommunications Law (The Hague, London and Boston: Kluwer Law International, 2002), pp. 19-49;
6. Bobjoseph Mathew, The WTO Agreements on Telecommunications (Berne, Frankfurt and Brussels: Peter Lang, 2003), pp. 29-40.
7. Walden, as note 1 above, at pp. 348 et seq.
8. For an analysis of the technological developments in telecommunications and on dynamism as an intrinsic characteristic of communications markets, see Mira Nenova, EC Electronic Communications: Can Competition Law Do It All? Burri Nenova, EC Electronic Communications and Competition Law (London: Cameron May 2007), at ch. 1.
9. See, e.g., European Commission, Green Paper on the development of the common market for telecommunications services and equipment: Towards a dynamic European economy, COM(1987) 290 final, 30 June 1987. The 11th EC Communications Report (European Commission, European electronic communications regulation and markets 2005, COM(2006) 68 final, 20 February 2006, p. 2) shows that the market was worth €273 billion in 2005 and the overall revenue growth continued strong at levels of between 3.8 and 4.7 percent.
10. An example in point is the formation of a number of new standard-setting organizations. See, in that regard, Alan Cunningham, "Telecommunications, Intellectual Property, and Standards", in Ian Walden and John Angel (eds), Telecommunications Law and Regulation (2nd edn, Oxford: Oxford University Press, 2005), pp. 370
11. et seq. See, generally, Wybo P. Heere (ed.), From Government to Governance: The Growing Impact of Non-State Actors on the International and European Legal System (Cambridge: Cambridge University Press), 2004.
12. Walden, as note 1 above, p. 347.
13. On the reasons for the choice of the WTO as a more suitable forum for telecommunications negotiations, see Marco C.E.J. Bronckers and Pierre Larouche, Telecommunications Services and the World Trade Organization, 31 Journal of World Trade 5 (October 1997), pp. 6-7;
14. Christoph Beat Graber, Handel und Kultur im Audiovisionsrecht der WTO. Völkerrechtliche, ökonomische und kulturpolitische Grundlagen einer globalen Medienordnung (Berne: Staempfli, 2003), pp. 198-199.
15. For an overview of the international regulatory authorities in the field of telecommunications, see Gillies and Marshall, as note 2 above, pp. 147-153.
16. See also Charles H. Kennedy and M. Veronica Pastor, An Introduction to International Telecommunications Law (Boston and London: Artech House, 1996);
17. Denis Campbell, International Telecommunications Law (London: BNA International, 1999);
18. Colin D. Long (ed.), Global Telecommunications Law and Practice (London: Sweet & Maxwell, 2001-04).
19. On the legal effect of WTO law upon the EC legal order, see section III.A. below.
20. See Council Decision 94/800/EC of 22 December 1994, concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-94), OJ L 336/191, 23 December 1994 and Council Decision 97/838/EC concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the results of the WTO negotiations on basic telecommunications services, OJ L 347/45, 18 December 1997.
21. Agreement Establishing the World Trade Organization with Understanding on the Rules and Procedures Governing the Settlement of Disputes and Trade Policy Review Mechanism, Marrakesh, 15 April 1994, TS 57(1996) Cm 3277; (1994) 33 ILM 15, entered into force 1 January 1995 (hereinafter the WTO Agreement).
22. General Agreement on Tariffs and Trade of 30 October 1947, annexed to the Final Act of the United Nations Conference on Trade and Employment, Havana 1947 (entered into force 1 January 1948; subsequently rectified, amended, or modified by the terms of legal instruments, which had entered into force before the date of entry into force of the WTO Agreement).
23. For an introduction to the law of the WTO and its most important tenets, see, e.g., John H. Jackson, The World Trading System: Law and Policy of International Economic Relations (2nd edn, Cambridge, MA: MIT Press, 1999);
24. Thomas Cottier and Matthias Oesch, International Trade Regulation (Berne: Staempfli, and London: Cameron May, 2004);
25. Peter van den Bossche, The Law and Policy of the World Trade Organization (Cambridge: Cambridge University Press, 2005).
26. Article III:1 of the WTO Agreement.
27. Article III:2 of the WTO Agreement.
28. Article III:2 of the WTO Agreement. See also Annex 2 of the WTO Agreement, Understanding on Rules and Procedures Governing the Settlement of Disputes.
29. See Ernst-Ulrich Petersmann (ed.), The GATT/WTO Dispute Settlement System - International Law, International Organizations and Dispute Settlement (The Hague, London and Boston: Kluwer Law International, 1997);
30. James Cameron and Karen Campbell (eds), Dispute Resolution in the World Trade Organization (London: Cameron May, 1998);
31. Thomas Cottier, Dispute Settlement in the World Trade Organization: Characteristics and Structural Implications for the European Union, 35 Common Market Law Review (1998), 325-378.
32. AS stated in Article II:2 of the WTO Agreement, ".. the agreement and associated legal instruments included in Annexes 1, 2, and 3 .. are integral parts of this Agreement, binding on all Members".
33. One should however note that the delineation between services and goods is not always clear. As the European Court of Justice stated,".. in the field of telecommunications, .. it is difficult to determine generally whether it is free movement of goods or freedom to provide services which would take priority". "Accordingly, the question .. must be examined simultaneously in the light of both Article 30 and Article 59 of the Treaty". See Case C-390/99, Canal Satélite Digital SL v. Administración General del Estado, and Distribuidora de Televisión Digital SA (DTS) [2002] ECR 1-607, at paras 32-33. On the debate concerning the application of GATT or GATS, see David Luff, Telecommunications and Audio-Visual Services: Considerations for a Convergence Policy at the World Trade Organization Level, 38 Journal of World Trade 6 (December 2004), 1073 et seq.
34. In contrast to the GATT, which builds upon the GATT 1947, the GATS is a completely new Agreement for the field of services negotiated during the Uruguay Round (1986-94).
35. See Article I:1. See also I:2 and I:3 GATS. On the interpretation of these, see Appellate Body Report, European Communities - Regime for the Importations, Sale anal Distribution of Bananas, WT/DS27/AB/R, 9 September 1997; and Appellate Body Report, Canada - Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, 31 May 2000.
36. See Article I:3(b) GATS. The following para. (c) clarifies that, '"a service supplied in the exercise of governmental authority' means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers". For an interpretation, see Markus Krajewski, Public Services and Trade Liberalization: Mapping the Legal Framework, 6 Journal of International Economic Law 2 (2003), 347 et seq.;
37. Eric H. Leroux, What Is a "Service Supplied in the Exercise of Governmental Authority" Under Article I:3(b) and (c) of the General Agreement on Trade in Services, 40 Journal of World Trade 3 (June 2006), 345-385.
38. See Appellate Body Report, EC - Bananas, as note 24 above, para. 234. For further analysis, see Cottier and Oesch, as note 16 above, pp. 355 et seq. and 829 et seq.
39. Cottier and Oesch, as note 16 above, pp. 346 et seq.
40. Christoph Beat Graber, "Audio-Visual Policy: The Stumbling Block of Trade Liberalization", in Damien Geradin and David Luff (eds), The WTO and Global Convergence in Telecommunications and Audio-Visual Services (Cambridge: Cambridge University Press, 2004), pp. 200 et seq.
41. See Article II:2 GATS. Exemptions concerning telecommunications services (mostly on accounting rates) have been made, inter alia, by Argentina (Doc. GATS EL/4); Bangladesh (Doc. GATS EL/8); Brazil (Doc. GATS EL/13/Suppl. 1); India (Doc. GATS EL/42/Suppl. 1); Pakistan (Doc. GATS EL/67/Suppl. 1); Turkey (Doc. GATS EL/79) and the United States (Doc. GATS EL/90/Suppl. 2). The EC has listed none.
42. Members can now only exempt a measure from the application of the MFN treatment under Article II:1 GATS by obtaining a waiver pursuant to Article IX:3 of the WTO Agreement (see Annex on Article Exemptions, at para 2).
43. Annex on Article II Exemptions, at paras 3-4.
44. Annex on Article II Exemptions, at para. 6. All exemptions granted should have thus ended in January 2005. This did not however happen. In fact, many Members have explicitly stated in their exemption lists that particular exemptions would last more than ten years.
45. It is beyond the scope of the present paper to discuss all GATS provisions that have an influence on telecommunications services, such as domestic regulation, government procurement and public monopolies. For comprehensive analyses, see Michael H. Ryan, Trade in Telecommunications Services: A Guide to the GATS, 3 Computer and Telecommunications Law Review (1997), 95-104;
46. Mark Clough, Trade and Telecommunications (London: Cameron May, 2002), pp. 31 et seq.;
47. David Luff, "Current International Trade Rules Relevant to Telecommunications Services", in Damien Geradin and David Luff (eds), The WTO and Global Convergence in Telecommunications and Audio-Visual Services (Cambridge: Cambridge University Press, 2004), pp. 34-42;
48. Marco C.E.J. Bronckers and Pierre Larouche, "The WTO Regime for Telecommunications Services", in Marco C.E.J. Bronckers and Gary N. Horlick (eds), WTO Jurisprudence and Policy: Practitioners' Perspectives (London: Cameron May, 2004), pp. 553 et seq.
49. The "national treatment" obligation, articulated in Article XVII GATS, prescribes that, "each Member shall accord to services and service suppliers of any other Member, in respect of all measures affecting the supply of service, treatment no less favourable than that it accords to its own like services and service suppliers". Although only a specific commitment under GATS, the meaning of "national treatment" remains the same as under GATT. See Appepellate Body Report, EC - Bananas, as note 24 above, at para. 241.
50. "Market access" is articulated in Article XVI GATS. Pursuant to the latter, the commitments for access made by a Member are to be applied on an MFN basis subject to the terms, limitations and conditions specified in its Schedule. In addition, in sectors where a Member has committed itself, it must refrain from adopting or maintaining (unless otherwise specified in the Schedule) six particular types of measures. These are defined in litera (a) through (f) of Article XVI:2 and encompass: (a) limitations on the number of service suppliers; (b) limitations on the total value of service transactions or assets; (c) limitations on the total number of service operations or on the total quantity of service output; (d) limitations on the total number of natural persons that may be employed; (e) measures which restrict or require specific types of legal entity or joint venture; and (f) limitations on foreign capital participation.
51. The modes of supply of a service are: (a) from a territory of one Member into the territory of any other Member (cross-border mode); (b) in the territory of one Member to the service consumer of any other Member (consumption abroad mode); (c) by a service supplier of one Member through commercial presence in the territory of any other Member (commercial presence mode); and (d) by a service supplier in one Member, through presence of natural persons of a Member in the territory of any other Member (presence of natural persons mode).
52. Pursuant to Article XX GATS, each schedule specifies: (i) terms, limitations and conditions of market access; (ii)conditions and qualifications on national treatment; (iii) undertakings relating to additional commitments; (iv) where appropriate, the time-frame for implementation of such commitments; and (v) the date of entry into force of such commitments.
53. Article XIX:4 GATS.
54. Article XXI GATS.
55. See note 37 above.
56. Article XVIII GATS.
57. See section II.C. below.
58. See above the remarks at the beginning of the current section. See also Cottier and Oesch, as note 16 above, p. 821.
59. Second Computer Inquiry, Docket 20828, Final Decision, FCC 80-189, 77 FCC 2.d 384, 7 April 1980; Third Computer Inquiry, CC Docket 85-229, Report and Order, FCC 86-252, 104 FCC 2.d 958, 15 May 1986.
60. See Bronckers and Larouche, as note 10 above, at pp. 16-18.
61. The above definitions can be found at paras 93 and 97, respectively, of the Second Computer Inquiry (as note 44 above, emphasis added), as referred to by Bronckers and Larouche, as note 10 above, p. 17.
62. Formulated by negotiators during 1993, prior to the conclusion of the Uruguay Round, the Draft Model Schedule was included in a formal document as an attachment to Negotiations on Basic Telecommunications, Note by the Secretariat, TS/NGBT/W/1, 2 May 1994. It was later slightly revised and reissued as Draft Model Schedule of Commitments on Basic Telecommunications, Informal Note by the Secretariat, Job. No 1311, 12 April 1995. Of significance to the negotiations on basic telecommunications were also two Notes by the Chairman of the Group on Basic Telecommunications: Notes for Scheduling Basic Telecom Services Commitments (S/GBT/W/2/Rev.1, 16 January 1997) and Market Access Limitations on Spectrum Availability (S/GBT/W/3, 3 February 1997), both attached to the final Report of the Group on Basic Telecommunications (S/ GBT/4, 15 February 1997).
63. See WTO, Services Sectoral Classification List, WTO Doc. MTN.GNS /W/ 120, 10 July 1991.
64. UN Provisional Central Product Classification (CPC), UN Statistical Papers, Series M, No 77, Ver. l.1, E.91.XVII.7, 1991.
65. See Panel Report, Mexico - Measures Affecting Telecommunications Services, WT/DS204/R, 2 April 2004, at paras 7.59 et seq.
66. On the definitions, see extensively Paul L.G. Nihoul, "Audio-Visual and Telecommunications Services: A Review of Definitions under WTO Law", in Damien Geradin and David Luff (eds), The WTO and Global Convergence in Telecommunications and Audio-Visual Services (Cambridge: Cambridge University Press, 2004), pp. 360-370. See section III.C.3., for a critique of the breakdown into value-based and basic telecommunications services.
67. The examples under the category "other" are given by the WTO online guidance on telecommunications services. See as (visited 20 January 2007). Pursuant to the Draft Model Schedule (as note 47 above), they were categorized as "basic" telecommunications services.
68. The breakdown into basic and value-added telecommunications of the W/120 classification for "Telecommunication Services" does not appear in the official list. It is added pursuant to the Draft Model Schedule, as discussed above.
69. GATS, Annex on Telecommunications, at Section 1.
70. Ibid. (emphasis added). See also Section 2(a) of the Annex.
71. Section 3(a) defines "telecommunications" as "the transmission and reception of signals by any electromagnetic means". The subsequent paragraph identifies "public telecommunications transport service" as "any telecommunications transport service required, explicitly or in effect, by a Member to be offered to the public generally .. [including] inter alia telegraph, telephone, telex, and data transmission typically involving the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information". "Public telecommunications transport network" is then defined as "the public telecommunications infrastructure which permits telecommunications between and among defined network termination points".
72. Section 2(b) of the Annex on Telecommunications.
73. Emphasis added. See also Panel Report, Mexico - Telecommunications Services, as note 50 above, at paras 7.290-7.294.
74. Bronckers and Larouche, as note 33 above, at p. 527.
75. Ibid., at p. 528.
76. Panel Report, Mexico - Telecommunications Services, as note 50 above.
77. On the scope of application of the Annex on Telecommunications, see Panel Report, Mexico - Telecommunications Services, as note 50 above, in particular at paras 7.273-7.288.
78. Ibid., at para. 7.288.
79. Annex on Telecommunications, at Section 5(a). The Annex on Negotiations on Basic Telecommunications clarifies that, "[t]he term 'non-discriminatory' is understood to refer to most-favoured-nation and national treatment as defined in the Agreement, as well as to reflect sector-specific usage of the term to mean 'terms and conditions no less favourable than those accorded to any other user of like public telecommunications transport networks or services under like circumstances"'. See also Panel Report, Mexico - Telecommunications Services, as note 50 above, at paras 7.329 et seq.
80. With regard to "reasonable" terms and conditions, the Panel found in the Telmex Report that, ".. rates which exceed cost-based rates to this extent, and whose uniform nature excludes price competition in the relevant market of the telecommunications services bound under Mexico's Schedule, do not provide access to and use of public telecommunications transport networks and services in Mexico 'on reasonable .. terms'". Consequently the Panel found that Mexico had failed to meet its obligations under Section 5(a) of the GATS Annex on Telecommunications by failing to ensure that US service suppliers were accorded access to and use of public telecommunications transport networks and services in Mexico on reasonable terms. See Panel Report, Mexico - Telecommunications Services, as note 50 above, at para. 7.334.
81. Ibid., at para. 7.308 (emphases in the original).
82. Annex on Telecommunications, at Section 5(e).
83. Ibid., at Section 5(0. Pursuant to para. (g), a developing country may impose other conditions "necessary to strengthen its domestic telecommunications infrastructure and service capacity and to increase its participation in international trade in telecommunications services". See also Panel Report, Mexico - Telecommunications Services, as note 50 above, at para. 7.388.
84. Mathew, as note 4 above, at p. 77.
85. See Kelly Cameron, "Telecommunications and Audio-Visual Services in the Context of the WTO: Today and Tomorrow", in Damien Geradin and David Luff (eds), The WTO and Global Convergence in Telecommunications and Audio-Visual Services (Cambridge: Cambridge University Press, 2004), pp. 22 et seq.
86. WTO, Explanation of the Annex on Telecommunications. See (visited 10 July 2007).
87. Cottier and Oesch, as note 16 above, at p. 880.
88. Confirming the above, the Panel noted in Mexico - Telecommunications Services that, ".. although the obligations in the Annex and the Reference Paper may overlap in certain respects, there are clear differences between the two instruments. First, the Annex sets out general obligations for access to and use of public telecommunications transport networks and services, applicable to all Members and all sectors in which specific commitments have been undertaken. Reference Paper obligations, as additional commitments, are applicable only by Members that have included them in their schedules, and they apply only to basic telecommunications. Second, while the Annex applies to all operators of public telecommunications transport networks and services within a Member, regardless of their competitive situation, the Reference Paper obligations on interconnection apply only with respect to 'major suppliers'. Third, the Annex broadly deals with 'access to and use of public telecommunications transport networks and services', while the Reference Paper focuses on specific 'competitive safeguards' and on 'interconnection"'. See WTO Panel Report, Mexico - Telecommunications Services, as note 50 above, at para. 7.331 (emphases in the original).
89. Cameron defines it as a "status quo agreement". See Cameron, as note 70 above, at p. 21.
90. See GATS, Decision on Negotiations on Basic Telecommunications, 15 April 1994.
91. See GATS, Annex on Negotiations on Basic Telecommunications.
92. The main opposition came understandably from the United States, which was already substantially ahead in the process of liberalizing its telecommunications markets and insisted that the other WTO Members commit to opening their markets. The US justified its refusal to conclude an agreement with the claim that a critical mass of market access commitments had not been reached, in particular from developing countries. See Bronckers and Larouche, as note 33 above, at p. 523.
93. WTO, Fourth Protocol to the General Agreement on Trade in Services, S/L/ 20, 30 April 1996. A "First" Protocol to the GATS never actually materialized. The Second Protocol is on Financial Services, the Third Protocol concerns the Movement of Natural Persons.
94. See Decision on Commitments in Basic Telecommunications, S/L/19, 30 April 1996.
95. The European Commission authorized by the Council submitted to the WTO the final schedule of commitments on behalf of the European Community and its Member States on 14 February 1997.
96. The newly formed Group on Basic Telecommunications agreed to modify the rules on participation in meetings (in comparison to the rules of NGBT), so that all WTO Members had a full voice in its activities (governments under accession participated upon request as observers). The negotiations also received important political support at the WTO Ministerial Meeting in Singapore, December 1996. See WTO Ministerial Declaration, Singapore 1996, WT/MIN(96)/DEC. In the end, 32 of the 34 offers of April 1996 were revised, and 21 new offers were submitted. For an overview of the schedules of specific commitments attached to the Fourth Protocol, see Bronckers and Larouche, as note 10 above, at pp. 21-22.
97. Supplementary to the Schedules, the Chairman of the Group on Basic Telecommunications issued two explanatory notes clarifying certain issues applicable to the scheduling of commitments. See Note by the Chairman of the GBT, Notes for Scheduling Basic Telecom Services Commitments and Note by the Chairman of the GBT, Market Access Limitations on Spectrum Availability, both as note 47 above
98. Since the conclusion of the Fourth Protocol, five of the initial signatories have improved their commitments (Guatemala, Morocco, Pakistan, Switzerland and Venezuela). Fifteen new WTO Members (Albania, Armenia, China, Croatia, Estonia, Georgia, Jordan, the Kyrgyz Republic, Latvia, Lithuania, Macedonia, Moldova, Nepal, Oman and Taiwan) made commitments on basic communications in the course of their initial schedules of specific commitments. For a qualitative analysis, see Bronckers and Larouche, as note 33 above, at pp. 530 et seq.
99. Council Decision 97/838/EC concerning the conclusion on behalf of the European Community of the results of the WTO negotiations on basic telecommunications services, as note 13 above.
100. Article XX:3 GATS.
101. In a number of schedules, the Member's commitments for particular services are to be "phased in". For these, while the schedules entered formally into force on the date of the Fourth Protocol as a whole, the actual implementation date for such commitments was that specified in the schedule.
102. Commission Directive 96/19/EC amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets, OJ L 74/13, 22 March 1996.
103. The Reference Paper is so named, because its rules are integrated into the GATS by reference made to it in the schedules of commitments. On the Reference Paper, see Peter Holmes, Jeremy Kempton and Francis McGowan, International Competition Policy and Telecommunications - Lessons from the EU and Prospects for the WTO, 20 Telecommunications Policy 10 (1996), 755-767;
104. Markus Fredebeul-Krein and Andreas Freytag, Telecommunications and WTO Discipline - An Assessment of the WTO Agreement on Telecommunications Services, 21 Telecommunications Policy 6 (1997), 477-491;
105. William J. Drake and Eli M. Noam, The WTO Deal on Basic Telecommunications - Big Bang or Little Whimper?, 21 Telecommunications Policy 9/10 (1997), 799-818;
106. Markus Fredebeul-Krein and Andreas Freytag, The Case for a More Binding WTO Agreement on Regulatory Principles in Telecommunications Markets, 23 Telecommunications Policy (1999), 625-644;
107. Chantal Blouin, The WTO Agreement on Basic Telecommunications: a Reevaluation, 24 Telecommunications Policy (2000), 135-142;
108. Mathew, as note 4 above, at pp. 124-199;
109. Graber, as note 10 above, at pp. 204 et seq.;
110. Philip Marsden, A Competition Policy for the WTO (London: Cameron May, 2003), pp. 228 et seq.;
111. Damien Geradin and Michel Kerf, "Levelling the Playing Field: Is the WTO Adequately Equipped to Prevent Anti-Competitive Practices in Telecommunications?", in Damien Geradin and David Luff (eds), The WTO and Global Convergence in Telecommunications and Audio-Visual Services (Cambridge: Cambridge University Press, 2004), pp. 144-157;
112. Bronckers and Larouche, as note 33 above, at pp. 532-552.
113. Of the parties to the Fourth Protocol, only Ecuador and Tunisia entered no additional commitments under the Reference Paper. Bolivia, India, Malaysia, Morocco, Pakistan, the Philippines, Turkey and Venezuela adopted only parts of it. Bangladesh, Brazil, Mauritius and Thailand have agreed to follow the Reference Paper at a later date. See note 84 above.
114. See Reference Paper, at "Scope".
115. See WTO Panel Report, Mexico - Telecommunications Services, as note 50 above, at para. 7.331.
116. The Panel Report Mexico - Telecommunications Services (ibid.) exemplified this approach. What is explored in the following sections is essentially the basic text of the Reference Paper and not any individual Member's schedule.
117. Clough, as note 33 above, at p. 83.
118. Reference Paper, at "Definitions", para. 3. For some interesting details of the negotiating history of the "major supplier" definition, see Marsden, as note 88 above, at pp. 229-230.
119. Reference Paper, at "Definitions", para. 2.
120. Panel Report, Mexico - Telecommunications Services, supra as note 50 above, in particular at paras 7.145-7.159 and 7.226-7.228.
121. As defined by the Reference Paper, as note 94 above.
122. Panel Report, Mexico - Telecommunications Services, as note 50 above, at para. 4.178.
123. Ibid., at para. 7.152.
124. Ibid., at para. 7.153, referring to the first submission of the United States, at paras 79-81.
125. Ibid., at para. 7.155 (emphasis in the original).
126. Ibid., at para. 7.158.
127. Ibid., at para. 7.159.
128. Ibid., at para. 7.227 (emphasis in the original).
129. Bronckers and Larouche, as note 33 above, at p. 536.
130. Reference Paper, at Section 1. On the interpretation of the concept of"anti-competitive practices", see Panel Report, Mexico - Telecommunications Services, ibid., at paras 7.229-7.245.
131. Ibid., at para. 7.230.
132. Ibid., at para. 7.232 (emphases in the original).
133. The Panel based its wider interpretation on the Members' own competition legislation, on some international instruments addressing competition policy, such as Article 46 of the 1948 Havana Charter for an International Trade Organization and the OECD Council Recommendation Concerning Effective Action Against Hardcore Cartels (C/M[98]7/PROV). It also made reference to the work of the WTO Working Group on the Interaction between Trade and Competition Policy (see Report [2002] of the Working Group on the Interaction between Trade and Competition Policy to the General Council [WT/WGTCP/6] and Report [2003], [WT/ WGTCP/ 7]). See Panel Report, Mexico - Telecommunications Services, as note 50 above, at paras 7.234-7.238. It is important to note that the aforementioned Havana Charter never in fact came into effect.
134. Panel Report, Mexico - Telecommunications Services, as note 50 above, at paras 7.239-7.245. In their submissions as a third party to the latter case, the European Communities expressed a different position. They pointed out that the fixing of a uniform price cannot be an anti-competitive practice since uniform prices were required by law and that if Mexico chose not to allow competition between telecommunications on a certain matter, there was no scope for anti-competitive practices relating to that matter, since it is not possible to restrict competition where competition is not allowed. See European Communities' third party submission, in particular at paras 49 and 53.
135. Panel Report, Mexico - Telecommunications Services, as note 50 above, at paras 7.265-7.269.
136. Ibid., at para. 7.266. See also note 110 above.
137. Ibid., at para. 7.265, referring to The Shorter Oxford English Dictionary (3rd end, London: Clarendon Press, 1990), p. 94.
138. Id.
139. Ibid., at para. 7.267.
140. Ibid., in particular at paras 7.160 et seq.
141. Ibid., at para. 7.177.
142. Ibid., at para. 7.183.
143. Ibid., at para. 7.184. This explanation was also supported by the negotiating history of the provision, which adapted the language of the EC Interconnection Directive. See Directive 97/33/EC of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), OJ L 199/32, 26 July 1997. Article 7(2) therein provides that, "[c]harges for interconnection shall follow the principles of transparency and cost orientation. The burden of proof that charges are derived from actual costs including a reasonable rate of return on investment shall lie with the organization providing interconnection to its facilities".
144. Reference Paper, at Section 2.4.
145. Reference Paper, at Section 2.5.
146. Reference Paper, at Section 3.
147. Reference Paper, at Section 4.
148. Reference Paper, at Section 5.
149. Reference Paper, at Section 6.
150. According to the US Trade Representative, the 56 countries that committed to the Fourth Protocol and the Reference Paper and permitted foreign ownership or control of all telecommunications services and facilities, account for 97 percent of the total basic telecommunications services revenue of WTO Members. See Annex to the Statement of Ambassador Charlene Barshefsky on Basic Telecom Negotiations, USTR, 15 February 1997, as referred to by Bronckers and Larouche, as note 10 above, at p. 22. For a critique, see Drake and Noam, as note 88 above, at pp. 812-818.
151. Drake and Noam, as note 88 above, at p. 806.
152. See Bronckers and Larouche, as note 10 above, at p. 23. In that sense, the role of the Reference Paper can be compared to that of the Open Network Provision (ONP) framework during the liberalization of EC telecommunications markets, albeit at the international level.
153. Paul Nihoul and Peter Rodford, EU Electronic Communications Law (Oxford: Oxford University Press, 2004), para. 1.176.
154. See, for instance, Articles 8 and 31(c) and (k) of the TRIPs and Article 9 of the Agreement on Trade-Related Investment Measures (TRIMs). See also Roland Weinrauch, Competition Law in the WTO (Vienna and Graz: Neuer wissenschaftlicher Verlag, 2004), pp. 131-150, and Background Note by the Secretariat, The Fundamental WTO Principles of National Treatment, Most-Favoured-Nation and Transparency, WT/WGTCP /W/ 114, 14 April 1999.
155. Bronckers and Larouche, as note 10 above, at p. 43;
156. Holmes, Kempton and McGowan, as note 88 above, ar p. 765.
157. Pierre Larouche defines it as a "regulatory framework for telecommunications (sector specific regulation and competition law) seen through a trade law filter". See Pierre Larouche, Competition Law and Regulation in European Telecommunications (Oxford and Portland, OR: Hart Publishing, 2000), p. 342.
158. For a critique of the Reference Paper, see Drake and Noam, as note 88 above, at pp. 817-818;
159. Bronckers and Larouche, as note 10 above, at pp. 23 et seq.;
160. Fredebeul-Krein and Freytag, as note 88 above, at pp. 628 et seq.;
161. Blouin, as note 88 above, at pp. 140 et seq.;
162. Larouche, as note 132 above, at pp. 342-343;
163. Luff, as note 22 above, at pp. 1067 et seq.;
164. Marsden, as note 88 above, at pp. 228 et seq.;
165. and Geradin and Kerf, as note 88 above, at pp. 146 et seq., who also suggest a model for improvement of the Reference Paper in the direction of more precision, simplicity and flexibility.
166. Marsden, as note 88 above, at p. 231.
167. See, in particular, Case C-7/97, Oscar Bronner GmbH & Co KG v. Mediaprint Zeitungs-und Zeitschriftenverlag GmbH & Co KG etc. [1998] ECR 1-7791, [1999] 4 CMLR 112. On the essential facilities doctrine, see Abbott B. Lipsky Jr and J. Gregory Sidak, Essential Facilities, 51 Stanford Law Review (1999), 1187-1249;
168. Barry Doherty, Just What Are Essential Facilities?, 38 Common Market Law Review (2001), 397-436;
169. Damien Geradin, Limiting the Scope of Article 82 EC: What Can the EU Learn from the US Supreme Court's Judgment in Trinko in the Wake of Microsoft, IMS and Deutsche Telekom, 41 Common Market Law Review (2004), 1519-1553.
170. Verizon Communications Inc v. Law Offices of Curtis V. Trinko, LLP, 540 US 682 (2004). The US Supreme Court drew, among others, three important conclusions in Trinko: (i) first, it substantially narrowed down the possibilities for granting mandatory access and held that its ruling in Aspen Skiing (Aspen Skiing Cov. Aspen Highlands Skiing Corp, 472 US 585 (1985)), which is normally identified as the epitome of the essential facilities doctrine, was "at or near the outer boundary of Section 2 liability". Indeed, it dismissed the EFD itself as "crafted by some lower courts"; (ii) second, the Court argued that mandatory access may conflict with one of the objectives of antitrust by reducing incentives to invest; and (iii) third, it found that if antitrust courts were to grant access to essential products or services, this would force them to act as "central planners", since they would essentially need to engage in pricing and other regulatory discussions for which they are ill-suited. See Geradin, as note 135 above.
171. Reference Paper, at Definitions, para. 2.
172. Bronckers and Larouche, as note 33 above, at p. 536.
173. See Article 2(3) of Directive 92/44/EEC on the application of open network provision to leased lines, OJ L 165127, 19 June 1992, as amended by Directive 97/51/EC of 6 October 1997 amending Council Directives 90/ 387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications, OJ L 295/23, 29 October 1997;
174. Article 4(3) of Directive 97/33/EC of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of the Open Network Provision (ONP), OJ L 199/32, 26 July 1997;
175. Article 2(2)(i) of Directive 98/10/EC of 26 February 1998 on the application of Open Network Provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, OJ L 101/24, 1 April 1998.
176. On the ONP mechanism, see Larouche, as note 132 above, at pp. 25-32.
177. See also Clough, as note 33 above, at p. 67.
178. Even in the European Community, which was well ahead in the deregulation of the telecommunications sector, public voice telephony was still not liberalized at the time and the date for the full liberalization was set at 1 January 1998.
179. See Laura B. Sherman, Wildly Enthusiastic about the First Multilateral Agreement on Trade in Telecommunications Services, 51 Federal Communications Law Journal (1999), 73.
180. As note 50 above. For a comment, see Christoph Beat Graber, Mexiko unterliegt USA im ersten WTO-Telekommunikationsfall. Anmerkungen zum Entscheid des WTO-Panels i.S. Mexiko - Massnahmen betreffend Telekommunikationsdienste (WT/DS204/R), 3 medialex (2004), 176-177;
181. Bronckers and Larouche, as note 33 above, at pp. 533 et seq.;
182. Antonio Ortiz Mena and Ricardo Rodriguez, Mexico's International Telecommunications Policy: Origins, the WTO Dispute, and Future Challenges, 29 Telecommunications Policy (2005), 429-448;
183. J. Gregory Sidak and Hal J. Singer, Überregulation without Economics: The World Trade Organization's Decision in the US-Mexico Arbitration on Telecommunications Services, 57 Federal Communications Law Journal 1 (2004), 1-48;
184. Philip Marsden, WTO Decides First Competition Case - With Disappointing Results, Competition Law Insight (2004), 3-9;
185. Eleanor M. Fox, The WTO's First Antitrust Case - Mexican Telecom: A Sleeping Victory for Trade and Competition, Journal of International Economic Law 2 (2006), 271-292.
186. See section II.C. above; and Bronckers and Larouche, as note 33 above, at pp. 540 et seq.
187. Fox, as note 142 above.
188. See also Article 19 2 DSU; van den Bossche, as note 16 above, at pp. 220 et seq.;
189. Joost Pauwelyn, "Human Rights in WTO Dispute Settlement", in Thomas Cottier, Joost Pauwelyn and Elisabeth Bürgi (eds), Human Rights and International Trade (Oxford: Oxford University Press, 2006), pp. 215 et seq.
190. Arlan Gates, Convergence and Competition: Technological Change, Industry Concentration and Competition Policy in the Telecommunications Sector, 58 University of Toronto Faculty of Law Review 2 (2000), fn. 82, at 99.
191. Bronckers and Larouche, as note 33 above, at p. 552.
192. Marsden, as note 142 above, at pp. 4 et seq.
193. Panel keport, Mexico - Telecommunications Services, as note 50 above, in particular at paras 7.229 et seq.
194. Marsden, as note 142 above, at p. 5.
195. Article 31(1) of the Vienna Convention on the Law of the Treaties (8 ILM 679, 1969, entered into force 27 January 1980) states that, "[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". See Marsden, as note 142 above, at pp. 7-8.
196. See, generally, on the interpretation of WTO law norms, Gabrielle Marceau, Conflict of Norms and Conflict of Jurisdictions, 35 Journal of World Trade 6 (December 2001), 1081-1131.
197. See, e.g., Pierre A. Buigues and Patrick Rey (eds), The Economics of Antitrust and Regulation in Telecommunications (Cheltenham: Edward Elgar, 2004).
198. See also Burri Nenova, as note 6 above, at ch. 4.
199. For a comprehensive presentation of the economic issues related to the finding of dominance, see Robert O'Donoghue and Jorge Atilano Padilla, The Law and Economics of Article 82 EC (Oxford and Portland, OR: Hart Publishing, 2006).
200. See, e.g., the European Commission's position expressed in its Guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services, OJ C 165/6, 11 July 2002.
201. Marsden, as note 142 above, at pp. 8-9.
202. See also Kathy Y. Lee, The WTO Dispute Settlement and Anti-Competitive Practices: Lessons from Trade Disputes, University of Oxford Centre for Competition Law and Policy Working Paper (L) 10/05 (2005), at pp. 30 et seq.
203. Bronckers and Larouche, as note 33 above, at p. 540; Fox, as note 142 above.
204. See Trinko, as note 136 above.
205. Bronckers and Larouche, as note 33 above, at p. 552.
206. See, also, Armin von Bogdany, "Law and Politics in the WTO - Strategies to Cope with a Deficient Relationship", in Jochen A. Frowein and Rüdiger Wolfrum (eds), Max Planck Yearbook of United Nations Law, Vol. 5 (Leiden and Boston: Martinus Nijhoff, 2001), pp. 609-674.
207. The question is not straightforward even in the realm of the EC, which constitutes a supranational entity. For an analysis, see Burri Nenova, as note 6 above, at ch. 4.
208. Both the European Communities and all the Member States of the European Union are full Members of the WTO. It is clear from Articles IX, XI and XIV of the WTO Agreement, that it is the European Communities, and not the European Community or the European Union, which is a Member of the WTO. The explanation for this peculiarity can be found in EU constitutional law. The European Communities, and not the European Community, is a WTO Member since at the time of the negotiations it was unclear which of the then three Communities (European Economic Community, European Community for Coal and Steel and Euratom) had the necessary competence to conclude the WTO Agreement. In Opinion 1/94 ([1995] I CMLR 205; [1994] ECR 1-5267) the European Court of Justice established that only the European Community needed to be involved in the WTO. However, the ECJ's clarification of the legal situation came after the WTO Agreement had been signed. The European Union is nota WTO Member, since in 1994, at the time of the conclusion of the WTO Agreement, it had no competence to conclude international agreements.
209. See Council Decision 94/800/EC, as note 13 above. At that time, only 12 countries were Members of the EC, namely: Belgium, Germany, Denmark, Spain, France, the Netherlands, Luxembourg, Ireland, Italy, Portugal, Greece and the United Kingdom. The EC goods and services schedules apply to these countries, whereas there are schedules under their own names for the countries which joined the EU in 1995 (Austria, Finland, Sweden) and for the 10 countries (Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovak Republic, Slovenia), which joined in May 2004.
210. The term "direct effect" is used here in the sense that a private person may base a claim in the domestic courts (national or EC) against another private party or the State based on the State's obligations existing under an international Treaty. Other terms used often as synonyms for "direct effect" or with subtle differences are "direct applicability", "invocability" and/or "self-executing effect". On the definition of "direct effect", see, e.g., Helen Keller, Rezeption des Völkerrechts (Berlin: Springer, 2003), at pp. 13 et seq.
211. There is one exception, namely Article XX:2 of the Agreement on Government Procurement, which provides for judicial review based on the agreement. See Panel Report, United States - Sections 301-310 of the Trade Act of 1974, WT/DS152/R, 22 December 1999.
212. Thomas Cottier, "A Theory of Direct Effect in Global Law, in Armin von Bogdany, Perros C. Mavroidis and Yves Mény (eds), European Integration and International Co-ordination (The Hague, London and Boston: Kluwer Law International, 2002), p. 103.
213. Council Decision 94/800/EC, as note 13 above, at Recital 15.
214. See Thomas Cottier, as note 20 above;
215. Thomas Cottier and Krista Nadakavukaren Schefer, The Relationship between World Trade Organization Law, National and Regional Law, 1 Journal of International Economic Law (1998), 83-122;
216. Cottier, as note 162 above;
217. Steve Peers, "Fundamental Right or Political Whim? WTO Law and the Court of Justice", in Gráinne de Búrca and Joanne Scott (eds), The EU and the WTO - Legal and Constitutional Issues (Oxford and Portland, OB,: Hart Publishing, 2003), pp. 111-130;
218. Armin von Bogdany and Tilman Makatsch, "Collision, Co-existence or Co-operation? Prospects for the Relationship between WTO Law and European Union Law", in Gráinne de Búrca and Joanne Scott (eds), The EU and the WTO-Legal and Constitutional Issues (Oxford/ Portland, OR: Hart Publishing, 2003), pp. 131-150;
219. Claus Dieter Ehlermann, "On the Direct Effect of the WTO Agreements", in Talia Einhorn (ed.), Spontaneous Order, Organization and the Law (Cambridge: Cambridge University Press, 2004), pp. 413 et seq.;
220. Cottier and Oesch, as note 16 above, at pp. 197 et seq.;
221. Annin von Bogdany, Legal Effects of World Trade Organization Decisions Within European Union Law: A Contribution to the Theory of the Legal Acts of International Organizations and the Action for Damages under Article 288(2) EC, 39 Journal of World Trade I (February 2005), 45-66;
222. Daniel Wüger, Anwendbarkeit und Justiziabilitdsat volkerrechtlicher Non, nen im schweizerischen Recht: Grundlagen, Methoden und Kriterien (Berne: Staempfli, 2005);
223. Pieter Jan Kuijper and Marco Bronckers, WTO Law in the European Court of Justice, 42 Common Market Law Review (2005), 1313-1355.
224. Joined Cases 21-24/72, International Fruit Company NV v. Produktshap voor groenten en fruit [1972] ECR 1219, [1975] 2 CMLR 1, at paras 21 et seq. 166 See note 20 above.
225. Case C-146/96, Portugal v. Council [1999] ECR 1-8395, at para. 42, confirmed recently by Case C-377/ 02, Léon Van Parijs v. Belgisch Interventie- en Restitutie Bureau, judgment of 1 March 2005, nyr.
226. Ibid., at paras 43 et seq. For the US counterpart rejecting direct effect of the WTO Agreements, see Section 102(a) of the US Implementing Bill, The Uruguay Round Agreements Act, 103D Congress, 2nd Session, House Document 103-316, Vol. 1, 1994, 659.
227. Ibid. at para. 47. See also Joined Cases C-390/98 and 392/98, Parfums Christian Dior SA v. TUK Consultancy BV and Asco Gerüste and Rob Van Dijk v. Wilhelm GmbH & Co. KG and Layher BV [2000] ECR 1-11304.
228. See note 151 above.
229. Ibid. at Article 27. On the principle of good faith, see Marion Panizzon, Good Faith in WTO Jurisprudence (Oxford and Portland, OR: Hart Publishing, 2006).
230. See, e.g., Appellate Body Report, Brazil-Export Financing Programme for Aircraft (Recourse by Canada to Article 21.5 of the DSU), WT /DS46/ AB/RW, 21 July 2000. There, at para. 46, the AB stated that, "a WTO Member's domestic law does not excuse that Member from fulfilling its international obligations".
231. Case C-61/94, Commission v. Germany (International Dairy Agreement) [1996] ECR 1-3989. See also von Bogdany, as note 164 above, at pp. 50 et seq.
232. Cottier and Oesch, as note 16 above, at p. 200.
233. See, e.g., Cottier and Schefer, as note 164 above, at pp. 88 et seq.
234. Case C-61/94, Commission v. Germany (International Dairy Agreement), as note 173 above.
235. Ibid., at para. 52.
236. Case C-53/96, Hermès International v. FHT Marketing Choice BV [1998] ECR 1-3603.
237. Ibid., at para. 28 (emphasis added).
238. Thomas Cottier and Matthias Oesch, WTO Law, Precedents and Legal Change, 3 Turku Law Journal (2001), 34.
239. Case 70/87, Fédération de l'industrie de l'huilerie de la CEE (Fediol) v. Commission [1989] ECR 1781.
240. Case C-69/89, Nakajima All Precision Co Ltd v. Council [1991] ECR 1-2069. Confirmed also in Case C-280/93, Germany v. Council [1994] ECR 1-4973. On the Fediol and Nakajima cases, see Kuijper and Bronckers, as note 164 above, at pp. 1323 et seq.
241. Case C-76/00 P, Petrotub SA and Republica SA v. Council [2003] ECR 79, in particular at para. 54. For a different view, see Kuijper and Bronckers, as note 164 above, at pp. 1326-1327.
242. Commission Decision of 24 March 2004 relating to a proceeding under Article 82 of the EC Treaty, Case COMP/C-3/37.792, Microsoft, C(2004) 900 final. At para. 1053, the Commission stated that, ".. '[i]t is only where the Community intended to implement a particular obligation assumed in the context of the WTO, or where the Community measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the Community measure in question in the light of the WTO rules'. In this case, these conditions are not satisfied and Microsoft can therefore not invoke the TRIPS Agreement or the TBT Agreement to challenge the legality of this Decision" (footnotes omitted). 185 In the context of Article 230(2) EC.
243. See the ECJ judgment in Dior (as note 169 above). One should, however, note that in its recent judgment in the Biret cases, the ECJ left open the possibility of an action for damages based on an EC measure, which was found to be inconsistent with the WTO obligations by the WTO Dispute Settlement Body if the damage occurred after the end of the reasonable period of time for implementation of the ruling of the DSB. See Judgment of the Court of 30 September 2003, Biret International SA v. Council, Case C-93/02 P, and Judgment of the Court of 30 September 2003, Biret International SA v. Council, Case C-94/02 P. For a comment, see Armin von Bogdany, supra note 164.
244. von Bogdany and Makatsch, as note 164 above, at p. 150.
245. European Communities and their Member States, Schedule of Specific Commitments, Trade in Services, Supplement 3, GATS/SC/31/Suppl. 3, 11 April 1997.
246. Broadcasting being defined as "the uninterrupted chain of transmission required for the distribution of TV and radio programme signals to the general public, but not covering contribution links between operators".
247. European Communities and their Member States, Schedule of Specific Commitments, Trade in Services, Supplement 3, as note 188 above, at p. 2.
248. See, e.g., Lisa L. Garrett, Commerce versus Culture: The Battle Between the United States and the European Union Over Audiovisual Trade Policies, 19 North Carolina Journal of International Law and Commercial Regulation (1994), 553 et seq.;
249. Jonas M. Grant, "Jurassic" Trade Dispute: The Exclusion of the Audiovisual Sector from GATT, 70 Indiana Law Journal (1995), 1333 et seq.;
250. Judith Beth Prowda, US Dominante in the "Marketplace of Culture" and the French "Cultural Exception", 29 New York Journal of International Law and Politics (1996-97), 193 et seq.;
251. Ivan Bernier, "Cultural Goods and Services in International Trade Law", in Dennis Browne (ed.), The Culture/Trade Quandary: Canada's Policy Options (Ottawa: Centre for Trade Policy and Law, 1998), pp. 108 et seq.;
252. Mary E. Footer and Christoph Beat Graber, Trade Liberalization and Cultural Policy, 3 Journal of International Economic Law (2000), 115 et seq.;
253. Bruno de Witte, "Trade in Culture: International Legal Regimes and EU Constitutional Values", in Gráinne de Búrca/Joanne Scott (eds), The EU and the WTO - Legal and Constitutional Issues (Oxford and Portland, OR: Hart Publishing, 2003), pp. 237-255;
254. Patrick A. Messerlin, Stephen E. Siwek and Emmanuel Cocq, The Audiovisual Services Sector in the GATS Negotiations (Washington, D.C.: American Enterprise Institute Press, 2004);
255. Christoph Beat Graber, Michael Girsberger and Mira Nenova (eds), Free Trade versus Cultural Diversity: WTO Negotiations in the Field of Audiovisual Services (Zurich: Schulthess, 2004); and in particular, Graber, as note 28 above.
256. WTO, Doha Ministerial Declaration, WT/MIN(01)/DEC/W/1, 14 November 2001.
257. Our analysis here focuses only on the offers of the European Communities. In terms of requests, in their proposal for commitments in the field of telecommunications services, the EC hopes for reciprocal commitments in the sector and suggests that all Members commit for Modes 1 (cross-border supply), 2 (consumption abroad) and 3 (commercial presence) all sub-sectors and all modes without restrictions, including as an additional commitment the Reference Paper in its entirety. Improvement and facilitation of the temporary movement of natural persons are suggested under Mode 4 (presence of natural persons) and elimination of the Members' MFN exemptions related to satellite services and accounting rates. See Communication from the European Communities and their Member States, GATS 2000: Telecommunications, S/CSS/W/35, 22 December 2000 and Communication from Australia, Canada, the European Communities, Japan, Hong Kong China, Korea, Norway, Singapore, the Separate Customs Territory of Taiwan, Penghu, Kimmen and Matsu and the United States, TN/SW/50, l July 2005.
258. Communication from the European Communities and its Member States, Conditional Initial Offer, TN/ S/O/EEC, 10 June 2003, at pp. 80-84.
259. The existing limitations on market access with regard to certain Member States were substantially reduced. Full commitments are also offered in the previously not covered sub-sector of "enhanced/valued-added facsimile services, including store and forward, store and retrieve". The additional definition for telecommunications in the sense of exclusion of broadcasting was preserved as such.
260. For the Doha Round of negotiations in services, between 31 March 2003 and 15 September 2005, 69 initia/offers were submitted. From 19 May 2005 to 8 November 2005, Members submitted 30 revised offers (Australia, Bahrain, Bolivia, Brazil, Chile, China, Chinese Taipei, Colombia, Egypt, European Communities and its Member States, Honduras, Hong Kong China, Iceland, India, Japan, Korea, Liechtenstein, Macao China, Mexico, New Zealand, Norway, Peru, Singapore, Suriname, Switzerland, Thailand, Turkey, United States and Uruguay).
261. Communication from the European Communities and its Member States, Conditional Revised Offer, TN/S/O/EEC/Rev.1, 29 June 2005, in particular at pp. 187-214 and Attachment C.
262. An expression used by Ian Walden. See Ian Walden, "Telecommunications Law and Regulation: An Introduction", in Ian Walden and John Angel (eds), Telecommunications Law and Regulation (2nd edn, Oxford: Oxford University Press, 2005), p. 13.
263. As established by Commission Decision of 10 December 1982, British Telecom, OJ 1987 L 360/36, [1987] 1 CMLR 457;
264. confirmed in Case 41/83, Italy v. Commission (British Telecommunications) [1985] ECR 873, [1985] 2 CMLP, 368.
265. For an account of national competition law legislation, see Richard Whish, Competition Law (5th edn, London: Butterworths LexisNexis, 2003), pp. 57 et seq.
266. For an account of national communications specific legislation, see Colin D. Long (general ed.), Global Telecommunications Law and Practice (London: Sweet & Maxwell, 2000-04).
267. See Case 6/64, Costa v. ENEL [19641 ECR 585, [1964] CMLR 425; Case 14/68, Walt Wilhelm v. Bundeskartellamt [1969] ECR 1, [1969] CMLR 100.
268. See Case 26/62, Van Gend en Loos v. Nederlanse Administratie der Belastingen [1963] ECP, 1; Case 43/75, Defrenne v. Sabena (II) [1976] ECR 455. See also Recitals 8 and 9 and Article 3 of the Council Regulation (EC) 1/2003 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, see note 200 above.
269. The current framework has been in force since 24 April 2002. Member States were given until 24 July 2003 to adopt and publish the laws, regulations and administrative provisions necessary to comply with it. For the 2007 update, see European Commission, Communication on the review of the EU regulatory framework for electronic communications networks and services, COM (2006) 334 final, 29 June 2006.
270. For an excellent analysis of the 1998 EC framework, see Larouche, as note 132 above.
271. Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (hereinafter the Framework Directive), OJ L 108/33, 24 April 2002.
272. Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorization of electronic communications networks and services, OJ L 108/21 24 April 2002; Directive 2002/19/ EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (hereinafter the Access Directive); Directive 2002/22/ EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (hereinafter the Universal Service Directive); Directive 2002/ 58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector.
273. Commission Directive 2002[77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services, OJ L 249/21, 17 September 2002 (hereinafter the Commission Competition Directive).
274. For the definitions, see Article 2 of the Framework Directive.
275. The Commission's Competition Directive specifies (at Recital 7) that, the "new definitions [of electronic communications networks and services] are indispensable in order to take account of the convergence phenomenon by bringing together under one single definition all electronic communications services and/or networks which are concerned with the conveyance of signals by wire, radio, optical or other electromagnetic means (i.e., fixed, wireless, cable television, satellite networks). Thus, the transmission and broadcasting of radio and television programmes should be recognized as an electronic communication service and networks used for such transmission and broadcasting should likewise be recognized as electronic communications networks".
276. Hence, the new name "electronic communications" coined by the EC legislator, to replace "telecommunications" as used under the previous regulatory framework.
277. See European Commission, Towards a new framework for electronic communications infrastructure and associated services: the 1999 Communications Review, COM(1999) 539 final, 10 November 1999.
278. For a full-scale analysis of the present EC regime for electronic communications, see, e.g., Nihoul and Rodford, as note 129 above; and Koenig, Bartosch and Braun, as note 4 above.
279. See Articles 14-16 of the Framework Directive and Commission Guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services, OJ C 165/6, 11 July 2002. The 2002 SMP regime has been the subject of some excellent studies. See Alexandre de Streel, The Integration of Competition Law Principles in the New European Regulatory Framework for Electronic Communications, 26 World Competition 3 (2003), 489-514;
280. Martin Cave, "Economic Aspects of the New Regulatory Regime for Electronic Communications Service", in Pierre A. Buigues and Patrick Key (eds), The Economics of Antitrust and Regulation in Telecommunications (Cheltenham: Edward Elgar, 2004), pp. 27-41;
281. Nihoul and Rodford, as note 129 above, at paras 3.213 et seq.; Tambiana Madiéga, Innovation and Market Definition under the EU Regulatory Framework for Electronic Communications, 29 World Competition 1 (2006), 55-72.
282. See note 139 above.
283. This corresponds precisely to the definition given by the European Court of Justice. See e.g. Case 27/76, United Brands v. Commission [1978] ECR 207, [1978] 1 CMLR 429, at para. 65; Case 85/76, Hoffmann-La Roche v. Commission [1979] ECR 461, [1979] 3 CMLR 211, at para. 38.
284. After an initial market selection made by the European Commission in a Recommendation. As made clear by Article 15(1) of the Framework Directive, which is the legal basis of the Commission's Recommendation, it identifies ".. those product and service markets within the electronic communications sector, the characteristics of which may be such as to justify the imposition of regulatory obligations set out in the Specific Directives, without prejudice to markets that may be defined in specific cases under competition law". For the current Recommendation, see Recommendation on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC, OJ L 114/ 45, 8 May 2003.
285. Because of the ex ante nature of the analysis, there are some differences in comparison to an analysis under Article 82 EC. Most notably, there is a difference in the perspective of the analysis, which is a forward-looking one. There is furthermore no need for finding an abuse as would normally be required under antitrust. See note 213 above.
286. There is a special procedure ensuring coordination between the national and the Community levels. This procedure is formulated in Article 7 of the Framework Directive and allows the Commission to veto certain key measures of the NRAs. Of the 229 cases assessed by the Commission up to 30 September 2005, it adopted veto decisions in only four cases. See European Commission, Communication on market reviews under the EU regulatory framework: Consolidating the internal market for electronic communications, COM(2006) 28 final, 6 February 2006.
287. On the imposition of remedies, see Article 16 of the Framework Directive, Articles 9-13 of the Access Directive and Articles 17-19 of the Universal Service Directive. See also Martin Cave, "An Economic Analysis of Remedies in Network Industries", in Damien Geradin (ed.), Remedies in Network Industries: EC Competition Law vs. Sector-Specific Regulation (Antwerp: Intersentia, 2004), pp. 1-19.
288. Article 16 of the Framework Directive.
289. See section II.C. above
290. See Fifth Report on the implementation of the telecommunications regulatory package, COM(1999) 537 final, 10 November 1999.
291. See Nihoul and Rodford, as note 129 above, at paras 3.388-3.394, 4.375-4.378, 5.349.
292. See note 119 above.
293. See note 187 above.
294. Note 213 above.
295. For an excellent account of the EC implementation, see Clough, as note 33 above, at pp. 59-85.
296. See Panel Report, Mexico - Telecommunications Services, as note 50 above, at para. 7.111.
297. Commission Guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications, as note 226 above.
298. Bronckers and Larouche, as note 10 above, at p. 26.
299. Nihoul and Rodford, as note 129 above, at para. 3.394.
300. Clough, as note 33 above, at p. 67. See also Bronckers and Larouche, as note 33 above, pp. 535 et seq. and 569.
301. Although it does not give a specific explanation as to when such a divergence between the concepts of major supplier and SMP operator might occur in practice.
302. Reference Paper, at Section 2.2(b).
303. See note 219 above.
304. See note 48 above.
305. Communication from the European Communities and their Member States, GATS 2000: Telecommunications, as note 193 above, at para. 6.
306. Luff, as note 33 above, at p. 38. For a comprehensive analysis of the definition and scheduling methods and the lack of consistency, see Communication from the European Communities and its Member States, Classification in the Telecom Sector under the WTO-GATS Framework, TN/S/ W/27, S/CSC/W/44, 10 February 2005, at paras 3-13.
307. Bronckers and Larouche, as note 10 above, at p. 16 (emphasis added). The authors point out further in an updated contribution that, "[t]his distinction .. may cause complications, and may have outlived its usefulness given that no substantive consequences are attached to the distinction. It could be eliminated from the GATS framework". See Bronckers and Larouche, as note 33 above, at p. 526.
308. See Communication from the European Communities and its Member States, Classification in the Telecom Sector under the WTO-GATS Framework, as note 238 above, at paras 9-13.
309. The category "Communications Services", one of the 12 categories in the Services Sectoral Classification List (as note 48 above), is subdivided into five categories: postal services, courier services, telecommunications services, audiovisual services and other.
310. This has been largely acknowledged in the current negotiations. See, e.g., Communication from Switzerland, GATS 2000: Audio-Visual Services, S/CSSfW/74, 4 May 2001, at para. 2.
311. See section II.A. above.
312. There is no general definition of audiovisual services but there is an enumeration of services in the W/120 classification list. Therein audiovisual services are classified in six sub-sectors as: motion picture and video tape production and distribution; motion picture projection services; radio and television services; radio and television
313. Nihoul, note 51 above.
314. Sacha Wunsch-Vincent, The WTO, The Internet and Trade in Digital Products (Oxford and Portland, OR: Hart Publishing, 2006), p. 73;
315. Luff, as note 22 above, at p. 1073.
316. See David Luff, International Trade Law and Broadband Regulation: Towards Convergence?, 3 Journal of Network Industries (2002), 244-245 and 259;
317. Luff, as note 22 above, at pp. 1078 et seq. See also Graber, as note 28 above.
318. On the difficulties of classifying digitally-delivered content products under the GATS, see Wunsch-Vincent, as note 246 above, at pp. 70 et seq.
319. Ibid., at p. 71.
320. See, e.g., the case of satellites, as discussed by Paul Nihoul. Nihoul, as note 51 above, at p. 375.
321. Bronckers and Larouche, as note 33 above, at pp. 534-535. Some of the new negotiation proposals do suggest that the Reference Paper should apply to all telecommunications services. See, e.g., Communication from Colombia, Telecommunications Services, S/CSS/W/119, 27 November 2001.
322. See European Commission, Green Paper on the convergence of the telecommunications, media and information technology sectors, and the implications for regulation: Towards an Information Society approach, COM(1997) 623, 3 December 1997 and the 1999 Communications Review, as note 211 above. On convergence, see Colin R. Blackman, Convergente Between Telecommunications and Other Media, 22 Telecommunications Policy 3 (1998), 163-170;
323. P.H. Longstaff, "New Ways to Think about the Visions Caned 'Convergence': A Guide for Business and Public Policy", Program on Information Resources Policy, Harvard University (April 2000);
324. OECD, The Implications of Convergence for Regulation of Electronic Communications, DSTI/ICCP/TISP(2003)5/final, 12 July 2004;
325. Damien Geradin and David Luff (eds), The WTO and Global Convergente in Telecommunications and Audio-Visual Services (Cambridge: Cambridge University Press, 2004), especially therein Milton L. Mueller, "Convergence: A Reality Check", pp. 311-322,
326. and Pierre Larouche, "Dealing with Convergence at the International Level", pp. 390-422.
327. Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, OJ L 298/23, 17 October 1989, as amended by Directive 97/36/ EC, OJ L 202/60, 30 July 1997.
328. See European Commission, Amended Proposal for a Directive of the European Parliament and of the Council Amending Council Directive 89/552/ EEC on the Coordination of Certain Provisions Laid Down by Law, Regulation or Administrative Action in Member States Concerning the Pursuit of Television Broadcasting Activities ("Audiovisual Media Services without Frontiers"), COM(2007) 170 final, 29 March 2007.
329. In fact, few Members have made commitments for audiovisual services with varying intensity. For a summary of the specific commitments, see Patrick A. Messerlin and Emmanuel Cocq, "Preparing Negotiations in Services: EC Audiovisuals in the Doha Round", in Messerlin, Siwek and Cocq, as note 191, Table 7 at p. 33. See also Martin Roy, Audiovisual Services in the Doha Round: Dialogue de Sourds, The Sequel?, Journal of World Investment and Trade (2005), 923-952;
330. and Wunsch-Vincent, as note 246 above, at pp. 96 et seq.
331. The currently scheduled MFN exemptions are: (i) redressive duties against unfair pricing practices by distributors of audiovisual works (applying to all WTO Members); (ii) countermeasures against adverse, unfair or unreasonable conditions or actions taken by other Members (applying to all WTO Members); (iii) extension of national treatment to audio-visual works which meet certain linguistic and origin criteria regarding access to broadcasting (applying to European countries); (iv) Extension of national treatment to audiovisual works covered by co-production agreements (applying to all countries with whom an agreement may be concluded); (v) granting of benefits of programmes such as MEDIA and EURIMAGES to works and suppliers meeting European origin criteria (applying to European countries); 3 MFN exemptions for measures applied by specific Member States (Spain, Italy, Nordic Countries). See WTO, European Communities and Their Member States: Final List of Article II (MFN) Exemptions, GATS/EL/31, 15 April 1994.
332. See Communication from the European Communities and its Member States, Conditional Initial Offer (as note 194 above) and Conditional Revised Offer (as note 197 above).
333. See also Council Resolution of 21 January 2002 on the development of the audiovisual services sector, OJ C 32/4, 5 February 2002. Recital 5 therein reads that, "during the forthcoming WTO negotiations the Union will ensure, as in the Uruguay Round, that the Community and its Member States maintain the possibility to preserve and develop their capacity to define and implement their cultural and audiovisual policies for the purpose of preserving their cultural diversity".
334. See note 191 above.
335. According to the 1999 Communications Review (as note 211 above), "[t]echnological neutrality means that legislation should define the objectives to be achieved, and should neither impose, nor discriminate in favour of, the use of a particular type of technology to achieve those objectives". See also the Framework Directive, at Article 8(1).
336. On technological neutrality and the WTO, see Larouche, as note 252 above, at pp. 411-415.
337. See, e.g., Communication from the United States, Audiovisual and Related Services, S/CSS/W/21, 18 December 2000, at para. 10 and Communications from the United States, Market Access in Telecommunications and Complementary Services: the WTO's Role in Accelerating the Development of a Globally Networked Economy, S/CSS /W/ 30, 18 December 2000, at para. 9.
338. See Panel Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/S285/R, 10 November 2004 (confirmed by the Appellate Body Report, United States - Measures Affecting the Cross-Border Supply of Gambling and Betting Services, WT/DS285/AB/R, 7 April 2005).
339. See Panel Report, US - Gambling, ibid., at para. 6.285 (emphases added; footnote omitted). See also Sacha Wunsch-Vincent, Cross-Border Trade in Services and the GATS: Lessons from the WTO US Internet Gambling Case, Institute for International Economics Working Paper (December 2005), in particular at pp. 20 et seq.
340. "The expression 'means of delivery' will be used in this Report to refer to the various technological means (mail, telephone, Internet, etc.) by which a service can be supplied cross-border or remotely. Unless otherwise indicated, 'cross-border' and 'remote' supply cover all the various technological means of supplying services". See Panel Report, US - Gambling, ibid., at para. 6.33.
341. See Wunsch-Vincent, note 263 above, at pp. 16 et seq.; Markus Krajewski, Playing by the Rules of the Game? Specific Commitments after US - Gambling and Betting and the Current GATS Negotiations, 32 Legal Issues of Economic Integration 4 (2005), 427 et seq.
342. See note 197 above.
343. Communication from the European Communities and its Member States, Classification in the Telecom Sector under the WTO-GATS Framework, as note 238 above, at para. 1.
344. Section 3(a) of the Annex on Telecommunications.
345. Communication from the European Communities and its Member States, Classification in the Telecom Sector under the WTO-GATS Framework, as note 238 above, at para. 16 (emphasis in original). For a more detailed argumentation, see ibid., at paras 17-26.
346. See note 197 above, at p. 187.
347. See note 189 above.
348. See note 197 above, at p. 188.
349. Communication from the European Communities and its Member States, Classification in the Telecom Sector under the WTO-GATS Framework, as note 238 above, at paras 31 et seq. The Communication makes it clear that the Reference Paper as an additional commitment is an issue separate from the classification. See ibid., in particular at paras 1 and 31.
350. Communication from the United States, Classification in the Telecommunications Sector under WTO-GATS Framework, TN/S/W/35, S/CSC/W/ 45, 22 February 2005.
351. Ibid., at para. 2.
352. Id.
353. Ibid., at paras 2 and 6-9.
354. In the opinion of the United States, such a definition could be: "[a]ll services consisting of the transmission and reception of signals by any electromagnetic means, alone or in combination with enhancing, storing, forwarding, retrieving, or processing functions added to the transmission and reception of signals". Ibid., at para. 9 (emphasis in original)
355. Ibid., at para. 17. Indeed, none of the revised conditional offers (see note 196 above) adopts the proposed EC classification. Although some of them do not explicitly mention value-added services (e.g., New Zealand, Revised Conditional Offer, TN/S/O/NZL, Rev.1, 17 June 2005), the existing delineation and the W/120 classification are preserved.
356. The UN Central Product Classification (see note 49 above) has in fact been amended twice since the end of the Uruguay Round. See CPC 1.0 (Central Product Classification - Version 1.0, UN Statistical Papers, Series M, No 77, 1998, Ver.1.1, E.98.XVII.5) and CPC 1.1 (Central Product Classification - Version 1.1, UN Statistical Papers, Series M, No 77, Ver. 1.1, 2002, ESA/STAT/SERM/77/Ver. 1.1).
357. Wunsch-Vincent, as note 246 above, at pp. 76 et seq.
358. Ibid. Wunsch-Vincent suggests alternatives based, for instance, on a negative list approach. See ibid., at p. 79,
359. referring also to Aaditya Mattoo and Sacha Wunsch-Vincent, Pre-Empting Protectionism in Services: The WTO and Outsourcing, 7 Journal of International Economic Law 4 (2004), 765-801.
360. Bronckers and Larouche, as note 33 above, at p. 569.
361. One may even argue that such a provision ensuring conformity with the WTO law and referring explicitly to the EC commitments under the WTO framework will have direct effect, pursuant to the Nakajima doctrine (as note 182 above).
362. See, e.g., Edward Iacobucci, Interdependence of Trade and Competition Policy, 21 World Competition 2 (1997), 5-33;
363. Frédéric Jenny, "Globalization, Competition and Trade Policy: Issues and Challenges", in Roger Zäch (ed.), Towards WTO Competition Rules (The Hague, London and Boston: Kluwer Law International/Berne: Staempfli, 1999), pp. 13 et seq.
364. See also United Nations Conference on Trade and Development (UNCTAD), Exclusionary Anti-Competitive Practices, Their Effects on Competition and Development, and Analytical and Remedial Mechanisms, UNCTAD/DITC/ CLP/2005/4 (Geneva: United Nations, 2005).
365. WTO, Singapore Ministerial Declaration, Conf.. Doc. WT/MIN(96)/DEC/W, 13 December 1996. The Singapore Declaration (at para. 20) mandated the establishment of "a working group to study issues raised by Members relating to the interaction between trade and competition policy, including anti-competitive practices, in order to identify any areas that may merit further consideration in the WTO framework". On the development since Singapore, see Marsden, as note 88 above, at pp. 59 et seq.
366. The Singapore Ministerial identified four rules that might be well suited for the development of new multilateral disciplines. These were investment policies, competition polices, transparency in government procurement and trade facilitation. See ibid. at paras 20-23.
367. Doha Ministerial Declaration, as note 192 above, in particular at paras 23-25.
368. WTO, Doha Work Programme: Decision Adopted by the General Council on 1 August 2004, WT/L/ 579, 2 August 2004, at para. (g).
369. See, e.g., Report of the Working Group on the Interaction between Trade and Competition Policy to the General Council (2003), WT/WGTCP/ 7, 17 July 2003.
370. For an excellent critical analysis, see Marsden, as note 88 above, at pp. 161 et seq.
371. See Marsden, ibid., at pp. 192 et seq.
372. Merit E. Janow, Trade and Competition Policy", in Patrick F.J. Macrory, Arthur E. Appleton and Michael G. Plummer (eds), The World Trade Organization: Legal, Economic and Political Analysis, Vol. III (New York: Springer, 2005), p. 508.
373. Marsden, as note 88 above, at p. 253.
374. Which is very likely. See European Commission, On the review of the EU regulatory framework for electronic communications networks and services, COM(2006) 334 final, 29 June 2006.
375. Jackson, as note 16 above, at p. 308.
376. See von Bogdany, note 157.
377. See Andreas Fischer-Lescano and Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Michigan Journal of International Law (2004), 999-1046.
378. Oliver Wendell Holmes Jr, US Supreme Court, 1841-1935.