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The Interaction between the Competition Council and the Telecommunications Regulatory Authority in Algerian Law

Published online by Cambridge University Press:  07 July 2025

Fatma B Lalaymia Open the ORCID record for Fatma B Lalaymia [Opens in a new window]  and
Badreddine Berrahlia
Fatma B Lalaymia*
Affiliation:
Faculty of Law and Political Sciences, Badji Mokhtar Annaba University, Annaba, Algeria
Badreddine Berrahlia
Affiliation:
Faculty of Law and Political Sciences, Badji Mokhtar Annaba University, Annaba, Algeria
*
Corresponding author: Fatma B Lalaymia; Email: fatma.lalaymia@univ-annaba.dz
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Abstract

This article explores the interaction between the Conseil de la Concurrence (Competition Council) and the Autorité de Régulation de la Poste et des Communications Électroniques (Telecommunications and Postal Regulatory Authority) (ARPCE) in the Algerian legal system. Algerian policy-makers have given special consideration to the issue of overlapping jurisdiction between these two authorities. The article discusses the Algerian strategy to resolve regulatory overlaps in the electronic communications market and also highlights the intervention of the ARPCE as a competition authority for the electronic communications market. Furthermore, the article analyses the Optimum Telecom Algeria case as a turning point in restoring the Competition Council’s role and highlights the need for systematizing the intervention of the two authorities. Finally, the article provides a forward-looking perspective through proposing a memorandum of understanding to promote cooperation between the Competition Council and the ARPCE.

Keywords

Algerian competition lawinteractionoverlapping jurisdictionsregulationtelecommunications

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Type
Research Article
Information
Journal of African Law , First View , pp. 1 - 14
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Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of SOAS University of London.

Introduction

In many countries, the telecommunications sector has been radically restructured, from being state monopolies to being part of a competitive market.Footnote 1Introducing competition in this market was based on comprehensive regulatory reform, initiated with total liberalization and privatization.Footnote 2These structural changes in telecommunications and associated services have led to a fragmentation of previously merged functions.Footnote 3Independent regulatory authorities for telecommunications were therefore created to promote legal competition and oversee the development of the market in favour of the consumer.Footnote 4

Initially, states have intervened through establishing strict legal frameworks for telecommunications. This does not mean that the application of competition law rules in this sector has been excluded, as the material scope of competition law requires its application across all sectors of economic activity, with no exceptions.Footnote 5However, the parallel application of these two systems within the same market may pose many difficulties, especially as the mechanisms used and the results obtained are generally different.Footnote 6

Due to this concurrent application, there has been an overlap of jurisdictions between the competition authorities and telecommunications regulators. This issue may affect the sector through the risk of inconsistency and legal uncertainty, which could ultimately have an impact on the cost and quality of services provided to the consumer.Footnote 7In order to avoid duplication and overlap, states have recognized the necessity for the harmonization and coordination of regulatory competences. Legal systems have identified several approaches aimed at the articulation of competences between competition authorities and sector regulators.Footnote 8

As an effect of globalization, the Algerian government has adopted significant reforms in order to liberalize the telecommunications sector.Footnote 9In doing so, an independent regulatory authority, the Autorité de Régulation de la Poste et des Communications Électroniques (Telecommunications and Postal Regulatory Authority) (ARPCE), emerged in the early 2000s.Footnote 10The ARPCE supervises and regulates the electronic communications sector by promoting services effectively and efficiently. This primarily requires building real competition and ensuring the entry of new operators into the telecommunications market. Meanwhile, Algerian competition law is exercised concurrently with sectoral law;Footnote 11therefore, the ARPCE and the Conseil de la Concurrence (Competition Council) intervene side by side in the electronic communications sector. Despite their common objective, which consists of achieving real and legal competition in the electronic communications market, their intervention methods differ; the ARPCE may intervene ex ante in order to enhance competition, while the Competition Council provides an ex post intervention by controlling the existence of a sufficient level of competition.Footnote 12

Accordingly, the existence of the Competition Council (the general and horizontal regulatory authority) and the ARPCE (the specialized and vertical regulatory authority) in the same market certainly leads to an overlap of competences between enforcing competition law and the electronic communications framework.Footnote 13It is therefore necessary to establish communication channels between the two, intended to create real coordination between the two institutions in the interest of legal market competition as well as to control the process efficiency. The Algerian legislature has mainly set up coordination mechanisms to ensure the articulation of competences between the Competition Council and the ARPCE; however, the intervention of the two authorities in the electronic communications market shows that there is a gap of communication that has been crystallized in certain cases.

The literature concerning this subject seems to be insufficient for two reasons: first, most of these studies were conducted under the previous telecommunications regulatory framework of 2000,Footnote 14while the current research focuses on the new framework for electronic communications adopted in 2018.Footnote 15Second, other studies have mentioned the cases treated by the ARPCE without discussing a new and important case considered by the Competition Council, which this article analyses and which is based on the Optimum Telecom Algeria (OTA) Djezzy v Mobilis case of 2020.Footnote 16This article provides a critical and evaluative analysis of the interaction between the Competition Council and the ARPCE; it tackles the question of whether the Algerian legislature has adopted effective coordination to avoid overlapping jurisdictions between the Competition Council and the ARPCE, and explores the Algerian approach to resolving regulatory overlaps in the electronic communications market. It then demonstrates the dominance of the ARPCE as a competition authority for the electronic communications market, before analysing the restoration of the Competition Council’s role in that market. Furthermore, the article highlights the need for systematizing the intervention of the Competition Council and the ARPCE, and reveals the progress towards a finalization of a memorandum of understanding between the Competition Council and the ARPCE.

The Algerian approach to resolving regulatory overlaps in the electronic communications market

Over the past several years, states have struggled to enhance consistency between competition policy and regulatory policy. In particular, their interests have focused on fostering synergies in the interactions that occur between competition authorities and sectoral regulators, prompting policy-makers to develop institutional models that carefully define roles and competencies in order to reduce tensions and improve effective cooperation. These institutional models differ from one legal system to another:Footnote 17

  • • In the most common institutional model, the competition authority is a stand-alone agency responsible for enforcing competition law in all sectors, while the regulators are independent entities charged with one or more sectors;

  • • In an ‘exclusivity’ approach, priority in resolving competition issues can be given exclusively to sector regulators without the interference of a competition authority;

  • • In a concurrency regime, competition and sectoral authorities have a concurrent jurisdiction to enforce competition law within the concerned sectors;

  • • A cooperation approach is based on establishing joint collaboration between these authorities through precisely defined mechanisms that ensure communication between them in enforcing competition rules.

Before discussing the Algerian approach to resolving overlapping jurisdictions, it is helpful to give an overview of the policy reform in the telecommunications sector in Algeria. In contrast with other African countries, Algeria had less development under the state monopoly on the telecommunications sector.Footnote 18This monopoly in the sector’s organization contributed to an inefficient allocation of resources, manifested in a waste of public funds and organizational incoherence (overstaffing, dual hierarchy, centralization of decision-making powers, etc).Footnote 19The inappropriate legal structure and organization therefore led to the failure of the state monopoly policy.Footnote 20

In early 2000, under the effect of globalization and negotiations about partnership with the European Union, the government launched a comprehensive reform to address regulatory policy issues and institutional restructuring.Footnote 21The sector regulator (the ARPCE) was therefore established to regulate and supervise the activities of the telecommunications sector. This transition to a market model required the strengthening of existing legislation (a new competition law), in line with the new legal and economic approach. This reform therefore aimed to bring the Competition Council, which was established under the Competition Act 1995 with exclusive jurisdiction to enforce competition law, closer to the trade sector and ensure consistency between competition policy and sectoral policy.Footnote 22As a result, to enhance harmonization and avoid overlaps between the Competition Council and the ARPCE, Algeria preferred to adopt the most common institutional model, which was perhaps made in the context of the “mimicry phenomenon”.Footnote 23

The Algerian approach is based on collaboration between the Competition Council and the other sectoral regulators (including the ARPCE) to ensure the exchange of information and mutual consultation in resolving competition issues. Hence the Competition Act 2003 established a mechanism of “mandatory consultation”.Footnote 24Due to the consultation mechanism being insufficient, and to prevent conflicts arising from the overlapping jurisdiction between the ARPCE and the Competition Council, the Telecommunications Act 2018 introduced another complementary mechanism based on “reciprocal referrals”.

Mandatory consultation

The main objective of mandatory consultation is to promote joint work and to prevent the possibility of the Competition Council and the ARPCE each taking decisions that are inconsistent with the other. It is the initial step in managing overlap, based on the Council notifying the ARPCE of the possible application of competition law in its sector. This mechanism is provided according to article 39 of the Competition Act 2003, which states:

“When the Competition Council is notified of a case in a sector of activity under the control of a regulatory authority, it shall immediately send a copy of the file to the relevant regulatory authority for an opinion within a maximum period of thirty (30) days. As part of its missions, the Competition Council shall develop relations of cooperation, consultation and exchange of information with regulatory authorities.”

Accordingly, the Competition Council has a legal obligation to inform and obtain the opinion of the ARPCE on the potential enforcement of competition law in the electronic communications sector. To ensure the efficiency of this process, the law limits it to a precise time frame to avoid delays and slowing the proceedings of the ARPCE. The reason for requiring the Competition Council to consult the ARPCE is due on the one hand to the latter’s technical expertise in the telecommunications sector, and on the other hand to ensure that the ARPCE is informed about the existence of a dispute related to the sector that it supervises and regulates, in order to prevent unnecessary duplication and the possibility of conflicting decisions. Although this opinion constitutes specific expertise on issues of technical regulation, which may help the Competition Council resolve disputes referred to it, the opinion provided by the ARPCE is, however, not binding.Footnote 25In other words, the obligation is limited only to the necessity of conducting the consultation within the specified time, without any necessity to take the opinion into account. This has actually happened in two cases, in 2015 and 2020, where the Competition Council consulted the ARPCE but did not take notice of its considerations.Footnote 26

It should be taken into consideration that article 39 stipulates that only the Competition Council is concerned with this binding mechanism; the ARPCE is exempt from the rules of notification and consultation. While the legal framework of electronic communications specifies that the ARPCE may request the opinion of the Competition Council on every issue within its jurisdiction, it is an optional consultation for the ARPCE rather than being mandatory.Footnote 27Furthermore, the second paragraph of article 39 focuses on the need to strengthen relations of cooperation between these authorities in the context of enhancing and restoring competition in the telecommunications market; however, up to now, they have not concluded any agreement requiring joint cooperation between them. On the contrary, the practice in this sector shows that the two authorities act in competition to resolve disputes, as will be explained later.

Within the framework of developing cooperation between the Competition Council and the ARPCE, paragraph 4 of article 50 of the Competition Act 2003 stipulates: “Cases in sectors of activity under the control of a regulatory authority shall be investigated in coordination with the services of the authority concerned.” It appears that the Competition Act 2003 goes beyond just adopting simple cooperation procedures through consultation and exchange of information, as this article clarifies the duty of the Competition Council to conduct a joint investigation with the sectoral authority in every case that it examines related to electronic communication activities. This would facilitate and expedite the investigation process, due to the fact that the ARPCE has broader knowledge about the sector dynamics, especially with regard to the technical aspects, that may also aid the Competition Council to better understand the nature of the dispute and take the appropriate decision.Footnote 28Finally, the practices reveal the insufficiency of the binding consultation and joint investigation mechanisms included in the Competition Act 2003. To achieve effective cooperation and prevent overlapping jurisdiction between the two authorities, another mechanism has been tested: “reciprocal referrals”.

Reciprocal referrals

The tool of reciprocal referrals was introduced under the new Electronic Communications Act 2018, which included specific provisions governing the relations between the ARPCE and the Competition Council based on granting each authority the right to deal with matters that fall within their competences (article 18). It focuses on areas of overlapping jurisdiction between the two authorities; the Competition Council exercises its exclusive competence in enforcing competition law in the telecommunications sector, while the ARPCE is concerned with handling technical issues, which usually require a high level of expertise. Accordingly, article 18 stipulates: “The Regulatory Authority informs the Competition Council of every practice falling within its jurisdiction in the postal and electronic communications market. When the Regulatory Authority receives a request falling within the jurisdiction of the Competition Council, it shall forward the case to the latter for a decision.” In view of its supervision of the electronic communications sector and its proximity to the operators, the ARPCE may become aware of the existence of practices that restrict competition, or operators may bring before it a dispute related to such practices. In this case, the law prevents the ARPCE from tackling these practices; it should notify and refer to the Competition Council in order to deal with these behaviours and enforce the competition law in this sector.

Regarding article 44 of the Competition Act, the Competition Council examines whether the following practices fall within its competences:

  • • Agreements between enterprises aimed at obtaining a price higher than that which results from a competitive position;

  • • Abuse of a dominant position, which means positions where one enterprise, or sometimes several, regardless of any agreement, have a sufficiently powerful market position to fix their prices (or their commercial conditions) at a higher level than that which would result in a competitive position;

  • • Abuse of economic dependency, when enterprises exercise a position of dominance in their relations with economic operators who have no other option but to deal with them;

  • • A practice of abusively low prices which have the effect of eliminating competitors and where prices are then raised above a reasonable level;

  • • Every conduct and / or contract that allows an enterprise to monopolize the exercise of an activity.Footnote 29

Based on this, the Competition Council is responsible for controlling practices restrictive to competition and mergers in the telecommunications market, so the ARPCE is no longer a competition authority in this sector. Accordingly, enforcing competition law is the exclusive responsibility of the Competition Council, which does not tackle issues related to technical regulation. In contrast, the ARPCE is responsible for dealing with disputes between market operators in relation to interconnection and access by ensuring immediate and rapid intervention in areas in which it has advanced technical expertise. Paragraph 4 of article 18 states: “When the Competition Council receives a request falling within the jurisdiction of the regulatory authority mentioned in para 9 of article 13 above, it sends the relevant file to the latter for a decision.”

This procedure for dispute resolution is related to regulatory characteristics; it functions to compel the network owner to open its network to other operators, with the ultimate goal of encouraging and ensuring legal competition which allows the development of the market in favour of the consumer.Footnote 30Meanwhile, the competence of the ARPCE is limited only to controlling the technical and financial clauses associated with the network.Footnote 31Article 13 defines the ARPCE’s areas of intervention to resolve disputes between operators in this sector as the following:Footnote 32

  • • An interconnection agreement, a contract concluded between the operators of the electronic communications network open to the public, whereby the operator is obligated to respond to interconnection requests submitted by other operators, and the operator guarantees the provision of this service within the framework of objective, transparent and non-discriminatory conditions;Footnote 33

  • • Making access available to an operator, under conditions defined by regulation, resources or services, with a view to providing electronic communications services, where the operators shall provide their services under objective, transparent and non-discriminatory conditions. Unbundling, passive or active infrastructure sharing and national roaming are forms of access.Footnote 34

Consequently, reciprocal referral was adopted as a mechanism for cooperation between the two authorities in order to ensure an efficient functioning of the telecommunications sector, where the ARPCE deals with technical issues while the Competition Council oversees practices that are restrictive to competition and merger control. Despite the clarity of the legal provisions regulating the interaction between the Competition Council and the ARPCE, the practice still leads to a strong overlap of jurisdictions between the two authorities, particularly as the ARPCE believes that it has had primacy to enforce competition law in the telecommunications sector for a long time.

The dominance of the ARPCE: The competition authority for the electronic communications market

The ARPCE was the first sectoral authority created in the Algerian network industry, having played a crucial role in monitoring and controlling the telecommunications market. It is entitled to various competences aimed at restructuring and introducing competition into the telecommunications sector: supervision, sanction and dispute resolution. Moreover, it is also responsible for the task of “prior control” by identifying strong operators (operators benefiting from significant market power) in the market and ensuring that these operators comply with additional obligations.Footnote 35

Similar to the other sectoral regulators, the ARPCE is supposed to intervene ex ante to ensure the existence of effective and legal competition in the market. However, some legal provisions may be interpreted as being in favour of granting the sectoral regulator broader powers beyond its jurisdiction. This actually happened when the ARPCE interpreted that article 13 had delegated to it the right to take “all necessary measures to promote or restore competition in this market”.Footnote 36This means that the ARPCE is given the competence to intervene subsequently (ex post) to enforce the rules of competition law in the telecommunications market, thereby excluding the Competition Council from intervening. In practice, the ARPCE has adopted this interpretation in several cases, considering itself competent to deal with problems related to practices restrictive to competition, where it points out that “the interconnection tariffs of dominant operators may be subject to supervision by the ARPT [the predecessor of the ARPCE]”.Footnote 37This phenomenon is, in fact, not merely a group of disparate events; rather, it marks the beginning of a systematic approach to addressing issues related to competition in the telecommunications sector, indicating a shifting role of the ARPCE from sectorial regulator to competition authority.

Compared to other countries, Algeria is not an anomaly. For example, there has been uncertainty in some cases related to the jurisdiction of merger reviews between sectoral regulators previously in charge of merger screening and a newly established competition authority.Footnote 38While openness to competition is beneficial in terms of efficiency when it comes to mature networks in developed countries, the institutional transformations in the network industry in developing countries, under the liberalization wave, have been described as early and premature.Footnote 39This could potentially lead to a decline in the performance of networks that are still in their growth phase.Footnote 40

In fact, the dominance of the ARPCE over the management of the sector is linked to several factors that have helped to give it primacy as a specialized regulator, at the expense of the Competition Council. The principle of rapprochement between the ARPCE and the market operators allows the establishment of a special relationship between them that affects the will of the parties in choosing the ARPCE as an arbitration authority.Footnote 41During market supervision, sectoral regulators are obliged to establish close relationships with market operators. It is difficult to avoid this proximity, and it can be explained by the “permanent interaction” between the regulator and the market operators.Footnote 42Also, where the economic operators are in a long-term relationship with the sectoral regulators, their intentions are usually directed at avoiding problems with the authority directly responsible for allocating essential resources to them.Footnote 43Competition authorities, in contrast, do not have this close proximity with market operators; their intervention in the market is only occasional, in order to enforce compliance with competition rules.Footnote 44Moreover, the ARPCE’s expertise is a major factor that makes it the first choice for economic operators and qualifies it to handle contracts related to access and interconnection.Footnote 45In addition, the activity and vitality of the ARPCE, and its imposition of quick and effective interventions in this field, have allowed it to enforce control in resolving disputes in this sector, while the absence of the Competition Council has helped to make the ARPCE responsible for enforcing competition law.Footnote 46

In sum, the ARPCE considers itself the competition authority for the telecommunications market, while the Competition Council’s role is limited to sectors where there is no sectoral regulator or the sectoral regulator’s activities are not sufficiently developed. Thus the Competition Council witnessed a period of hibernation, during which the ARPCE was allowed to act as a competition authority for the telecommunications market.Footnote 47However, in recent years, the Competition Council has sought to re-establish its exclusive role in enforcing competition law in this sector.

The restoration of the Competition Council’s role

As in the majority of developing countries, the Algerian Competition Council has faced difficulties related to promoting competition.Footnote 48The Council was established in the early 1990s under the Competition Act 1995 (repealed) and was responsible for ensuring legal and effective competition in the market. In 2003, Algeria issued a new Competition Act that included fundamental and radical reforms aiming to avoid gaps contained in the previous version. The 2003 Act recognized the role of the regulatory authorities and directed the relationship between them and the Competition Council; it considered the Council as the sole authority with general jurisdiction in enforcing competition rules in all sectors. However, the Competition Council’s activities were temporarily halted due to several logistical and structural reasons.Footnote 49After this freeze period, the Council’s role was reactivated in January 2013 and its mission as a national regulatory authority restored.Footnote 50In this context, the Competition Council intervened in two cases related to the telecommunications market in order to enforce competition rules.

The first intervention of the Competition Council in the telecommunications sector was in 2015, to resolve a dispute between SARL SERI and Algérie Telecom.Footnote 51SARL SERI notified the Council of the abuse of the dominant position of Algérie Telecom (the historical operator) through its unilateral termination of a binding agreement between the two parties. Pursuant to article 39 of the Competition Act 2003, the Council requested the opinion of the ARPCE, which gave its preliminary opinion, considering that the investigation should be led by its office “due to its proximity to the market”. The Competition Council found this conclusion inadmissible under articles 39 and 50 of the Competition Act 2003 and therefore decided to conduct its own investigation.Footnote 52Ultimately, the Council rejected the notification because it concerned a contractual transaction, which falls within the competence of the commercial court.Footnote 53

This case represented the first interaction between the Competition Council and the ARPCE regarding the enforcement of competition law in the telecommunications market. What can be concluded from it is that the argument between the two authorities was not serious, and the Council established itself as a lead player in enforcing competition rules in the sector. However, the turning point was the case between Optimum Telecom Algeria (the claimant) and Mobilis (the defendant), because it was the first to clearly address the overlapping jurisdiction between the Competition Council and a sectoral regulator. In its decision of 29 September 2020 concerning the dispute, the Competition Council intervened according to a notification submitted by the claimant, which focused on “[b]reach of competition rules as a result of the economic advantages that Mobilis benefits from in the electronic communications retail market”.Footnote 54The facts can be summarized as follows:

  • • On 10 June 2018, OTA notified the Competition Council of an infringement of competition rules committed by Mobilis. After reviewing the notification and the attached documents, the Council accepted the case and appointed a rapporteur for the investigation;

  • • On 17 July 2018, in accordance with article 39 of the Competition Act, the Competition Council sent a copy of the file to ARPCE to provide its opinion (the mandatory consultation);

  • • The ARPCE sent a response to the Competition Council on 10 October 2018, in which it expressed its objection regarding the competence of the Council in this case;Footnote 55

  • • After a deliberation, the Competition Council decided to reject this opinion and complete the investigation;

  • • On 29 September 2020, the Competition Council penalized the defendant (Mobilis) by imposing a fine according to article 56 of the Competition Act 2003 for exploiting a dominant position.Footnote 56

This decision represents a significant evolution relevant to the issue of interaction between the Competition Council and the ARPCE and allows us to understand the view and interpretation of each authority of its role.Footnote 57Therefore the decision identifies the limits of their functions in enforcing competition rules in the electronic communications market. Although the notification was submitted after the adoption of the reciprocal referral, the ARPCE did not accept the Competition Council’s intervention in this sector; more specifically, it indicated that the Council was exempt from having a role in the electronic communications sector and that it had the exclusive right to deal with cases related to this sector for several reasons.Footnote 58First, based on article 34 of the Competition Act, the competence of the Competition Council extends to sectors where there is no competition or it is not sufficiently developed, which is not the case in the electronic communications market. Second, electronic communications activity is structured by special legislative and regulatory texts that address the controlling details of the sector, including those related to competition issues. Moreover, the ARPCE further noted that the Competition Council has general competences, while the electronic communications sector identifies, extensively and sufficiently, competition issues entrusted exclusively to the ARPCE; in other words, the ARPCE explicitly referred to the principle lex specialis derogat lege generali.Footnote 59Third, the ARPCE interpreted article 13 in a way that expanded its jurisdiction, considering itself entrusted with the task of ex ante regulation by promoting competition, as well as ex post regulation to restore competition in the sector. In contrast, the Competition Council did not take into account those considerations and decided to continue the investigation independently.Footnote 60Its decision was based on article 18 of the Electronic Communications Act, which designates the Council as responsible for tackling practices restrictive to competition in the electronic communications market, while the role of the ARPCE was specified in particular areas under article 13, paragraph 9.

Thus the restoration of the Competition Council’s role in the telecommunications sector had been achieved. Two factors helped to reach this result: first, operators in the sector usually prefer to notify the Competition Council, given that it has the jurisdiction to punish practices restrictive to competition, an exclusive competence that the Algerian legislature has not granted to any other regulation authority. Second, operators in the sector have lost confidence in the ARPCE, the sectoral regulator, due to the discriminatory treatment that some (historical) operators benefit from, which contributes to the emergence of the phenomenon of “asymmetric regulation”.Footnote 61

The Competition Council v the ARPCE: The need to systematize interventions

Understanding the differences between the intervention of competition authorities and sectoral regulators in the market can give a clear view of the division of tasks and the interaction between them. The intervention of the competition authorities differs from that of sectoral regulators in terms of the objectives pursued or the instruments used by each.Footnote 62The competition authorities seek to achieve effective competition by ensuring that economic operators comply with competition rules.Footnote 63Their intervention does not generally affect market structures but is limited to ensuring respect for the competition rules and punishing infringements of those rules. Accordingly, competition authorities enjoy limited intervention instruments in the market, issuing injunctions to put an end to practices restrictive to competition and imposing financial penalties.Footnote 64In contrast, the sectoral regulators pursue a completely different objective, as they seek to promote the entry of new competitors into the market; they mainly aim to build real competition and maintain balance within the sector they oversee.Footnote 65Their intervention essentially concerns market structures, so they usually have more intervention instruments than the competition authorities do, such as the setting of prices, dispute resolution and imposing access and interconnection obligations.Footnote 66

On the other hand, it is important to highlight that sectoral regulators’ and competition authorities’ interventions have different timings.Footnote 67The sectoral regulators are responsible for ex ante regulatory control, aiming to break down all barriers that could hinder the development of a competitive market. Therefore they intervene by implementing ex ante measures (tariff control, granting general authorizations, etc) to prevent any potential infringement or to impose obligations on strong operators in the market; these measures focus on preventing abuse before it happens, rather than punishing it in the future.Footnote 68Meanwhile, the competition authorities exercise the function of ex post regulatory control by ensuring respect for competition rules; they are responsible for controlling the behaviour of market players by punishing infringements of these rules (a repressive function), without taking any ex ante measures.Footnote 69

Accordingly, despite variation in the intervention mechanisms used by the Competition Council and by the ARPCE, ensuring the efficient functioning of the telecommunications market requires that both authorities work side by side. It is therefore necessary for the legal frameworks to work on dividing the tasks between the two authorities in a way that guarantees real cooperation and eliminates the problems posed by the interaction between sectoral regulation and competition policy. The Electronic Communications Act 2018 thus identifies the area of intervention for each authority, giving primacy to the Competition Council for tackling practices restrictive to competition, which indicates that the ARPCE is no longer responsible for enforcing competition law in the electronic communications market; the “reciprocal referral” provided under article 18 is considered a tool for regulating the interaction between them. This mechanism does not provide a recognized right for the economic operator to choose; rather, it is a mechanism through which the legislature guarantees “inter-regulation” between the overlapping jurisdictions. Nonetheless, in practice, the cases mentioned show that the interaction between the Competition Council and the ARPCE requires more cooperation, which could be developed through a memorandum of understanding.

Towards a finalization of a memorandum of understanding between the Competition Council and the ARPCE

Recently, policy-makers have increased their interest in, as much as possible, reducing risks related to inconsistent decisions between the competition authorities and sectoral regulators.Footnote 70Efforts have been focused on the need to ensure an effective interaction between these authorities by calling on them to cooperate with each other on common issues.Footnote 71Achieving this goal can be ensured through a legal framework that includes the parameters of their relationship and defines communication channels between them in order to enhance joint work and develop cooperation. This legal framework for cooperation between competition authorities and sectoral regulators is usually based on legislation and / or memorandums of understanding (MoUs) concluded by these authorities.Footnote 72

In Algeria, the legal framework for cooperation between the Competition Council and the ARPCE is based solely on legislation provided in the Competition Act 2003 and the Electronic Communications Act 2018. Although the legislation has designated specific mechanisms to ensure real cooperation between the two authorities, previous disputes have demonstrated their ineffectiveness, as explained above. However, it seems that this is a problem of conduct more than implementation. Accordingly, similar to comparable jurisdictions,Footnote 73concluding an MoU between the Competition Council and the ARPCE could provide an alternative solution that would enable effective cooperation and coordination between them.Footnote 74An MoU is a “[w]ritten agreement that spells out in more detail the cooperation already envisaged in legislation … it offers a more formal framework for co-operation and signals a willingness of the authorities to engage in dialogue”.Footnote 75An MoU has a complementary role to legislation, as it provides more details in order to fill gaps and support cooperation between the two authorities; it is also a flexible framework that can be easily amended to react to market developments.

In 2017, the Competition Council took the initiative to organize a working meeting with the ARPCE in order to develop relations of cooperation, consultation and exchange of information between them. According to the annual report of the Council, it and the ARPCE agreed on two basic points: the conclusion of a cooperation agreement between the two authorities in the areas of their competences, and the organization of an upcoming national forum by the Competition Council and sectoral regulators to discuss the issue of market regulation and the role and tasks of each regulator. However, the outputs of the meeting did not reach the intended result because the proceedings stalled. Therefore the Competition Council and the ARPCE should restart negotiations, focusing on the following elements:

  • • Addressing areas of overlapping jurisdictions, as it is necessary to articulate clear guiding principles and policies;

  • • Providing training to executives and staff who are responsible for regulation and competition, particularly in the areas of market observation and analysis, survey methods and management litigation;

  • • Carrying out appraisals and studies on procedures for the application of competition rules (market observation, handling of cases, management of disputes, monitoring of public procurement contracts, etc);

  • • Organizing workshops, seminars and conferences on competition regulation law and policy.

More specifically, the MoU should include clear terms for preventing any future disputes between the Competition Council and the ARPCE over common issues, as occurred in OTA, in addition to a commitment to apply legal rules, especially those related to consultation and joint investigation between the two authorities.

Conclusion

The debate on the interaction between the Competition Council and the ARPCE has not been resolved; however, it continues to be strongly impacted by economic developments and policy changes. This article has analysed the case of the Algerian legal system, focusing on the overlap of competences between the competition authority and the sectoral regulator. It has presented the MoU as a soft and adaptable framework that could facilitate building a bridge of cooperation between the two authorities and which therefore could be generalized to other sectors as well. The Competition Council still faces considerable challenges in strengthening competition policy in the Algerian market, especially in view of the transition that began to be established in early 2016 with the “competition compliance programme”.Footnote 76Therefore sectoral regulators have a fundamental role to play in the success of the transition process, and sectoral regulator policy must be consistent and proportionate with the objectives pursued by the Council. The current tensions between the two authorities will inevitably lead to failure of the strategy and will serve as a stumbling block to keeping pace with global developments. In addition, this relates to a genuine will of the actors to enhance legal competition in the market and their awareness of the risks associated with the market, consumers and economic developments. Nevertheless, external factors can still impact the work of these authorities, which cannot be resolved through a legislative initiative alone; instead, it requires more effort from all market players, particularly in an emergent market.

Competing interests

None

Footnotes

*

LLM, PhD (Badji Mokhtar Annaba University). Assistant Professor, Department of Public Law, Faculty of Law and Political Sciences, Badji Mokhtar Annaba University, Algeria.

**

LLM, PhD (Badji Mokhtar Annaba University). Professor, Department of Private Law, Faculty of Law and Political Sciences, Badji Mokhtar Annaba University, Algeria.

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5 T Perroud “La fonction contentieuse des autorités de régulation en France et au Royaume-Uni” (PhD dissertation, University Panthéon-Sorbonne, Paris, 2011) at 353.

6 V Smith and L Woods “Competition law and telecommunications” in I Walden (ed) Telecommunications Law and Regulation (2018, Oxford University Press) 536.

7 International Competition Network “Antitrust enforcement in regulated sectors: Interrelations between antitrust and regulatory authorities” (International Competition Network report, 2004), available at: <https://www.internationalcompetitionnetwork.org/wp-content/uploads/2018/09/RegulatedSectorsInterrelationsReport2005.pdf> (last accessed 9 December 2023); Organization for Economic Cooperation and Development (OECD) “Interactions between competition authorities and sector regulators” (2022), available at: <https://one.oecd.org/document/DAF/COMP/GF(2022)4/en/pdf> (last accessed 9 May 2023); R Mishra “Harmonising regulatory conflicts: Evolving a cooperative regime to address conflicts arising from jurisdictional overlaps between competition and sector regulatory authorities” (Centre for Competition, Investment & Economic Regulation briefing paper, 2012), available at: <https://www.cuts-ccier.org/pdf/Harmonising_Regulatory_Conflicts.pdf> (last accessed 9 September 2023); M Ottanelli “Cooperation between national competition authorities and national regulatory authorities: Issues of network interaction at the EU level” (2016) 12/1 The Competition Law Review 53.

8 UNCTAD “Best practices for defining respective competences and settling cases, which involve joint actions by competition authorities and regulatory bodies” (2006), available at: <https://unctad.org/system/files/official-document/tdrbpconf6d13rev1_en.pdf> (last accessed 2 November 2023).

9 In fact, the Algerian telecommunications sector has undergone the reform through the implementation of market liberalization policies and the establishment of a new regulatory framework to ensure private sector participation. P Noumba “A policy note on telecommunications reform in Algeria” (June 2004) The World Bank, available at: <https://documents1.worldbank.org/curated/en/102191468768542092/pdf/wps3339.pdf> (last accessed 4 March 2024).

10 The ARPCE was adopted through the new electronic communications framework; Electronic Communications Act 2018 (Algerian Official Journal No 27). Before that, the mission of the ARPCE was undertaken by the Autorité de Régulation de la Poste et des Telecommunications (ARPT), which was established by the Post and Telecommunications Act 2000.

11 R Zouaïmia “De l’articulation des rapports entre le conseil de la concurrence et les autorités de régulation sectorielles en droit algérien” (2007) 17/1 Idara 117.

12 Ibid.

13 N Berri “Les nouveaux modes de régulation en matière de télécommunications” (PhD dissertation, Mouloud Mammeri University of Tizi-Ouzou, 2014).

14 Ibid; Zouaïmia “De l’articulation des rapports”, above at note 11; R Belaïd and F Gasmi “Qualité institutionnelle et performance de la régulation sectorielle: un examen rétrospectif de la reforme des télécommunications en Algérie” (2009) 88/25 Les Cahiers du CREAD 53.

15 Electronic Communications Act 2018.

16 Optimum Telecom Algeria Djezzy v Mobilis [2020] 04/2020, available at: <https://www.conseil-concurrence.dz/?p=7036> (last accessed 29 June 2023).

17 According to the OECD, several factors can influence the choice of the appropriate institutional model for each legal system: the characteristics of the targeted sector, the socio-economic context and political orientation to promote competition; OECD “Relationship between regulators and competition authorities” (1998), available at: <https://www.oecd.org/daf/competition/1920556.pdf> (last accessed 24 May 2023); UNCTAD “Best practices”, above at note 8; CUTS-CCIER (Centre for Competition, Investment and Economic Regulation) “Competition and sectoral regulation interface” (2003), available at: <https://www.cuts-ccier.org/pdf/Competition_and_Sectoral_Regulation_Interface.pdf> (last accessed 3 December 2023). See also MM Dabbah “The relationship between competition authorities and sector regulators” (2011) 70/1 Cambridge Law Journal 113.

18 African countries such as Kenya, Nigeria, Uganda and Zimbabwe showed remarkable growth rates in the 1960s and part of the 1970s. However, the liberalization and privatization of many sectors have failed due to structural and historical difficulties; UNCTAD “The relationship between competition and industrial policies in promoting economic development” (2009), available at: <https://unctad.org/system/files/official-document/ciclpd3_en.pdf> (last accessed 16 September 2024).

19 Berri “Les nouveaux modes de régulation”, above at note 13.

20 Noumba “A policy note”, above at note 9.

21 Ibid.

22 Competition Act 1995 (Algerian Official Journal No 9).

23 Zouaïmia “De l’articulation des rapports”, above at note 11 at 48.

24 Competition Act 2003 (Algerian Official Journal No 43).

25 Zouaïmia “De l’articulation des rapports”, above at note 11 at 43.

26 SARL SERI v Algérie Telecom [2015] 36/2005, available at: <https://www.conseil-concurrence.dz/?p=1471> (last accessed 30 November 2023); OTA v Mobilis, above at note 16. The ARPCE’s views will be analysed later, in the fourth section.

27 Electronic Communications Act 2018, art 18, para 3.

28 Zouaïmia “De l’articulation des rapports”, above at note 11 at 43 and 48.

29 Competition Act 2003, arts 6–7, 11–12, 10. In addition to these practices, mergers which lead to the establishment of a dominant position must be mentioned; id, art 15.

30 This is not considered a common function to all sector regulators; only certain specific authorities have been exclusively provided with this competence. T Pez “Le règlement des différends et la fonction de régulation” (2017) 4/3 Revue française de droit administratif 645; R Mettoudi “L’expérience du règlement des différends par l’autorité de régulation des télécommunications” in MA Frison-Roche (ed) Droit et économie de la régulation (vol 3, 2005, Presses de Sciences Po) 197; T Perroud “Les raisons de l’attribution d’une fonction de règlements des différends aux autorités de régulation: une comparaison France – Royaume-Uni” (2016) 93/2 Droit et société 317.

31 The ARPCE indicated that “[c]onsidering disputes related to the contractual relationship raised in this dispute (damage compensation) does not fall within the competence of dispute resolution; the intervention in such matters is the exclusive competence of the ordinary judge. This jurisdiction is a special and exceptional competence in private law”; Décision No 39/SP/PC/ARPT/05 du 25 Octobre 2005, relative au litige opposant le fournisseur de service internet / Réseaux télécoms SARL IPAT à Algérie Télécom sur la modification des dispositions d’une convention de partenariat ADSL, available at: <https://www.arpce.dz/fr/file/e7w1n8> (last accessed 22 January 2024).

32 The ARPCE has established specific procedures for resolving disputes between operators, applying art 13, para 9 of Décision No 61/SP/PC/ARPCE/2020 du 23 décembre 2020 Portant procédure de règlement des litiges par l’autorité de régulation de la poste et des communications électroniques, available at: <https://www.arpce.dz/fr/file/s6d4o5> (last accessed 22 January 2024).

33 Electronic Communications Act 2018, art 101. See also art 10, para 12, and art 103.

34 Id, art 10, para 42, and arts 104–106.

35 Id, arts 13 and 112.

36 Id, art 13.

37 OTA v Mobilis, above at note 16; Décision No 03/SP/PC/ARPT/03 du 30 Juin 2003 de l’autorité de régulation de la poste et des télécommunications relative à la détermination de la taxe de terminaison d’un appel en provenance de l’international sur les réseaux mobiles de Orascom Télécom Algérie (OTA) et Algérie Télécom (AT), available at: <https://www.arpce.dz/fr/file/c3j4n4> (last accessed 4 February 2024). Orascom Télécom Algérie OTA v Algérie Télécom AT [2003]; Décision No 02/SP/PC/ARPT/03 du 30 juin 2003 relative aux règles applicables par les opérateurs de télécommunications pour la tarification des services fournis au public, available at: <https://www.arpce.dz/fr/file/q3s9r5> (last accessed 4 January 2024).

38 A 2023 UNCTAD report mentions that the telecommunications regulatory authority in Bangladesh reviewed the merger between two telecommunication operators in 2016. While the competition authority believed that it was the sole authority that could approve or disapprove mergers in the telecommunications sector, the telecommunications regulatory authority in Bangladesh considered itself the primary agency mandated to promote competition in the sector; UNCTAD “Interaction between competition and industrial policies” (2023), available at: <https://unctad.org/system/files/official-document/ciclpd69_en.pdf> (last accessed 16 March 2024).

39 JP Angelier “Les changements institutionnels dans les industries de réseaux: Une libération prématurée dans les pays en développement?” (Institutions et Croissance Economique, Université d’Oran, Algeria, 11–12 March 2006), available at: <https://shs.hal.science/halshs-00120469> (last accessed 10 October 2024).

40 Ibid.

41 Zouaïmia “De l’articulation des rapports”, above at note 11 at 50.

42 G Dezobry “L’indépendance des autorités de régulation économique à l’égard des opérateurs régulés” (2012) 143 Revue française d’administration publique 645, available at: <https://shs.cairn.info/revue-francaise-d-administration-publique-2012-13page-645?lang=fr> (last accessed 4 October 2024); A Perrot “Les frontières entre régulation sectorielle et politique de la concurrence” (2002) 16/4 Revue française d’économie 81, available at: <https://www.persee.fr/doc/rfeco_0769-0479_2002_num_16_4_1522> (last accessed 2 October 2024).

43 PA Jeanneney “Le régulateur producteur de droit” in MA Frison-Roche (ed) Droit et économie de la régulation (vol 2, 2005, Presses de Sciences Po) 48.

44 Dezobry “L’indépendance des autorités de régulation”, above at note 42.

45 The ARPCE’s members, including the chair, are selected according to their technical, legal and economic competencies; Electronic Communications Act 2018, art 20.

46 Zouaïmia “De l’articulation des rapports”, above at note 11 at 33.

47 Ibid.

48 Due to insufficient resources for competition advocacy, competition authorities in developing countries have been more exposed to enforcing competition laws. According to the International Competition Network (“Antitrust enforcement”, above at note 7), more than 63% of the authorities that were created less than 15 years ago have faced challenges related to the application of policies promoting competition; for example, the Colombian competition authority declared that other government agencies ignored the mandatory legal procedures for advocating competition. Also, in Ukraine, more than one government agency misinterpreted the role of the competition authority, which negatively affected market competition development; OECD “Interactions between competition authorities”, above at note 7. In the same context, the Algerian Competition Council states that “[a]s shown in countries that have opened their markets abruptly without putting in place appropriate control tools, this situation will on the one hand negatively affect the economic efficiency of enterprises, including small and medium-sized enterprises, and on the other hand the protection of consumer living conditions”; “Bulletin officiel de la concurrence” 27 (2022), available at: <https://www.conseil-concurrence.dz/?p=10012> (last accessed 10 September 2024).

49 In particular, the instability of the legal framework of competition was the main reason for the interruption of the Competition Council’s activities. In addition, there were other reasons that specifically led to this interruption: the lack of a suitable headquarters, a functional system and attractive salary packages that would allow the recruitment of sufficient employees in terms of quantity and quality; Conseil de la Concurrance “Bulletin officiel de la concurrence” 3 (2015), available at: <https://www.conseil-concurrence.dz/wp-content/uploads/2015/12/BOC3_AR.pdf> (last accessed 10 September 2024).

50 The Competition Council’s activities have been reactivated through the issuance of a set of legal texts relating to its organization, the remuneration system for members and the rules of procedure; Executive Decree No 11-241 of 10 July 2011, defining the organization of the Competition Council (Algerian Official Journal No 39) (as amended); Decision No 1 of 24 July 2013, defined by the Competition Council’s rules of procedure (2013), available at: <https://www.conseil-concurrence.dz/?page_id=2599> (last accessed 11 September 2024).

51 SARL SERI, above at note 26.

52 Ibid.

53 Conseil de la concurrence “Affaire No 336/2005 du 10/10/2005 opposant la société SERI contra la société Algérie Telecom” (2015), available at: <https://www.conseil-concurrence.dz/?p=1391> (last accessed 28 April 2025).

54 OTA v Mobilis, above at note 16.

55 The ARPCE justified its exceeding the 30 days stipulated under art 39 through its careful examination of the file and all relevant points, including calling the claimant, OTA, for a meeting and clarifying some important details related to the dispute.

56 This fine amounted to DZD 117,276,568.57.

57 See FL Berrahlia “The dispute resolutions before the independent administrative authorities in Algeria” [in Arabic] (PhD dissertation, Badji Mokhtar Annaba University, 2021) at 22.

58 OTA v Mobilis, above at note 16.

59 Ibid.

60 Id at 9.

61 ARPCE Décision No 39/SP/PC/ARPT/05, above at note 31; Décision No 43/SP/PC/ARPT du 25 décembre 2005, relative aux allégations d’Algérie Télécom quant au cas de fraude présumée d’Orascom-Télécom Algérie, available at: <https://www.arpce.dz/fr/file/b0b3j4> (last accessed 23 January 2024); MA Frison-Roche “Le pouvoir du régulateur de régler les différends: Entre office de régulation et office juridictionnel civil” in MA Frison-Roche (ed) Droit et économie de la régulation (vol 3, 2005, Presses de Sciences Po) 269.

62 P Chone “Droit de la concurrence et régulation sectorielle: Entre ex ante et ex post” in MA Frison-Roche (ed) Droit et économie de la régulation (vol 4, 2005, Presses de Sciences Po) 49.

63 A Perrot “Régulation et politique de concurrence dans les réseaux électriques” (2004) 1 Économie publique 3, available at: <https://journals.openedition.org/economiepublique/217> (last accessed 20 January 2024).

64 Ibid.

65 MA Frison-Roche Le Droit de la régulation (2001, Dalloz) at 610.

66 Perrot “Régulation et politique de concurrence”, above at note 63; Zouaïmia “De l’articulation des rapports”, above at note 11 at 35.

67 “[E]x ante is used in respect of regulatory measures that proactively control the structure and / or behaviour of market players going forward; while ex post refers to measures that arise in reaction to the decisions and activities of entities”; Walden “Telecommunications law and regulation”, above at note 1 at 22; MA Frison-Roche “Le couple ex ante – ex post, justificatif d’un droit spécifique et propre de la régulation” in MA Frison-Roche (ed) Droit et économie de la régulation (vol 4, 2005, Presses de Sciences Po) 33.

68 S Nauges “L’articulation entre droit commun de la concurrence et droit de la régulation sectorielle” (2007) 3 L’Actualité juridique droit administratif 672.

69 W Soltmann “Contrôle ex ante / ex post” in M Chagny, E Combe and D Jouve (eds), Dictionnaire de droit de la concurrence (n.d., Concurrences), available at: <https://www.concurrences.com/fr/dictionnaire/controle-ex-ante-ex-post> (last accessed 20 September 2024); MA Frison-Roche “Le couple ex ante – ex post”, above at note 67.

70 UNCTAD “Interaction between competition and industrial policies”, above at note 38.

71 International Competition Network “Antitrust enforcement”, above at note 7 at 12.

72 Ibid.

73 Such as MoUs concluded between the Tunisian National Telecommunications Authority and the Competition Council in 2015, and between the Egyptian Competition Authority and the Telecommunications Regulator in 2021; OECD “Interactions between competition authorities”, above at note 7 at 13.

74 Electronic Communications Act 2018, art 13, para 12; Competition Act 2003, art 39.

75 OECD “Interactions between competition authorities”, above at note 7.

76 Conseil de la Concurrance “Bulletin officiel de la concurrence” 25 (2022), available at: <https://www.conseil-concurrence.dz/wp-content/uploads/2023/03/Bilan-dactivite-Conseil-de-la-Concurrence-N-25.pdf> (last accessed 16 September 2024).