The European Commission introduced the so-called „three criteria test” which was designed to serve as an analytical filtering tool when considering whether electronic communications markets should be regulated by competition law alone, or whether the markets are susceptible to ex ante regulation. This paper gives a critical appraisal on the theoretical justification of the three criteria test in conjunction with the market analyses carried out periodically by national regulators. From a conceptual point of view our analysis finds that the three criteria test is already part of a proper and in-depth market analysis. In other words, the three criteria test appears to be a rather reduced form and redundant with regard to a full scale analysis. Apart from that, the test gives rise to misunderstandings and factually creates a built-in bias for national regulators to adopt the Commissions definition on relevant communications markets (susceptible to ex ante regulation). But, seen pragmatically and interpreted in positive terms, the three criteria test might be also regarded as an effective harmonization strategy at the European level.
© 2008 by Lucius & Lucius, Stuttgart