EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

elements at least up to the distribution point at the serving location, or an electronic communications network which is capable of delivering, under usual peak-time conditions, similar network performance in terms of available downlink and uplink bandwidth, resilience, error-related parameters, and latency and its variation. The general political consensus in the EU on the benefits of an effective deployment of very high capacity networks in Europe and the introduction of an additional regulatory objective did not translate into changes in the legal model of telecommunications regulation. Functioning in the EU since 2002, this model was maintained in the EECC. It provides for ex ante sector-specific regulation, which is implemented in the Member States in a decentralised manner and applied by national regulatory authorities (NRAs). It is an asymmetric regulation, targeting only operators with significant market power (SMP). This model obliges SMP operators to make their network/infrastructure available to new entrants (alternative operators) under conditions controlled by regulators. This supports market competitiveness and maximises user benefits (in the short term), but may also make SMP operators and alternative operators less keen on investment and innovation, and negatively affect the development of infrastructure competition (in the long term). When analysing this regulatory dilemma, S. Piątek (2011, p. 135 and p. 136) points out that [T]he regulator’s focus on making the incumbent operator’s resources available to competitors and reducing the former’s charges to the level of an efficient operator’s costs supports market competitiveness and maximises user benefits, but may weaken the propensity for investment and innovation both on the part of this operator, as well as alternative ones using its resources under the conditions set by the regulator. Over-regulation through the imposition of access obligations may therefore strongly discourage investment if new entrants gain access to the infrastructure without bearing the costs and associated economic risks (Walden 2018, p. 437; BEREC 2019). When imposing regulatory measures, the crux of the problem therefore remains striking a balance between the objectives of EU electronic communications law as listed in Article 1(2) of the EECC, i.e., between the deployment and take-up of very high capacity networks, sustainable competition, accessibility of networks and services and end-user benefits on the one hand and ensuring the provision throughout the Union of good quality, publicly available services on the other. On the one hand, potential benefits of infrastructure sharing are: cost reduction, improved efficiency, enhanced consumer choice, public interest (e.g., environmental benefits). On the other hand, infrastructure sharing agreements may reduce infrastructure-based competition, and hence investment incentives, or facilitate collusion between co-investors (BEREC 2019, Bourreau, Hoernig, Maxwell 2020, p. 6; Brom 2020).

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