EU communications law has been transformed over the last decade, with the convergence of the application of competition law to the sector and sector-specific regulation. The Electronic Communications Network and Services (“ECNS”) regulatory regime applies competition law principles to market definition and the identification of market power, reflecting an express policy objective to align the regulatory regime with competition law, such that ultimately sector-specific regulation might not be required. As a result, it is imperative to consider both competition law and regulation in parallel in virtually every case, whether it be a transaction, cooperative arrangement or alleged abuse of dominance.
This dynamic requires a multi-disciplinary approach with close integration of antitrust, regulatory and government affairs expertise and knowledge. This is how we work. Our lawyers and policy advisors across these disciplines work together in integrated and seamless teams across offices. Our antitrust lawyers understand the sector and its issues and have extensive regulatory experience and knowledge that that enables us to provide highly valued strategic and legal advice based on a rounded and balanced view of issues and solutions. The antitrust team forms an integral part of Covington’s broader Communications and Media Group, drawing on the firm’s extensive transactional, intellectual property and dispute resolution experience in the sector when needed. In addition, members of our team have extensive experience of European institutions, from both within and advising those bodies.
Our deep knowledge and understanding of, and experience in, the sector, coupled with our multi-disciplinary and multi-jurisdictional approach means that we are able to quickly assimilate the circumstances and our clients’ goals and objective, which in turn enables us to develop effective and appropriate multi-disciplinary and multi-jurisdictional strategies to achieve those ends.
Representative Matters
Abuse of Dominance
We advise clients in avoiding and reducing exposure and assist them in European Commission and Member States investigations. Abuse of dominance has been a significant focus of the Commission and national authorities in recent years, and our team has extensive experience in dealing with alleged abuses of dominance, including pricing abuses and market foreclosure. As is clear from a number of cases, the ECNS regime and competition law apply in parallel to the conduct of entities with market power (in service, network and other infrastructure markets) and companies have to comply with both.
Cooperation Arrangement and Alliances and Other Arrangements Between Competitors
We have extensive experience in advising clients on all forms of cooperative arrangements between competitors (including potential competitors) and non-competitors, from joint ventures and alliances, to specialization arrangements and supply contracts. Our advice helps clients to establish the commercial relationships that they need while mitigating against competition risks including information exchange. In addition, we have advised clients in the sector in relation to alleged collective boycotts and other potentially anticompetitive arrangements between competitors.
Mergers
Our in-depth understand of, and long-running experience in, the sector equips us to anticipate potential issues raised by communications transactions, and to develop strategies to effectively address and neutralize those concerns in Europe and more broadly. Our long-term experience with the competition and regulatory issues means that we are well placed to contextualize transactions in broader market trends and evolution. In addition, members of our team are able to deploy their extensive experience of European institutions to engage with officials to allay anticipated concerns before they arise.
Regulatory and Policy Initiatives
We advise clients on the application of communications regulation to services, particularly over-the-top and application-based products. The close involvement of members of the team in the development of the ECNS regime, makes them well-placed to look beyond black letter law to the policy and intent behind the regulation. The co-operation between the legal and government affairs teams also assists clients in devising effective legislative campaigns for new proposals and developments.
Compliance
We have significant experience in developing compliance programs, including training, for clients active in the communications sector, tailored to address their particular market positions and commercial activities.
We have also assisted in the design and development of pricing and related tools and the development and implementation of practical guidance materials for day-to-day use, to mitigate the risks of inappropriate information sharing in the contexts of cooperative arrangements.
Illustrative List of Clients
- Verizon
- Slovak Telecom
- Microsoft/Skype
- Facebook
- Qualcomm
- Intercall
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