EU ANTITRUST: HOT TOPICS & NEXT STEPS

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

Prague, Czechia

The new regulatory instruments introduced by the EECC to encourage operators tomake infrastructure investments also appear to be insufficient, i.e.: 1) exemption from symmetric access obligations for the wholesale operator providing access to very high capacity networks (Article 61(3)(2) in conjunction with Article 80 of the EECC), 2) co-investment in new very high capacity networks exempting the SMP operator from regulatory obligations (Article 76 of the EECC). Article 61(3) of the EECC introduces the possibility for NRAs to impose what can be called ‘symmetric access obligations’ on providers of electronic communications networks or owners of network elements. The term ‘symmetric regulation’ is used because it refers to obligations that can be imposed on all electronic communications operators – symmetrically, and not only on those with significant market power – asymmetrically. Symmetric access obligations may be imposed in relation to: 1) access to wiring and cables and associated facilities inside buildings or up to the first concentration or distribution point as determined by the national regulatory authority, where that point is located outside the building (Article 61(3), subparagraph 1, of the EECC); 2) access to elements beyond the first concentration or distribution point, to a point that it [the NRA] determines to be the closest to end-users, capable of hosting a sufficient number of end-user connections to be commercially viable for efficient access seekers (Article 61(3), subparagraph 2, of the EECC). Symmetric access obligations are imposed upon reasonable request where duplication of network elements would be economically inefficient or physically impracticable. Since obligations for access to higher network tiers (access to network elements beyond the first concentration or distribution point) are more burdensome for electronic communications network providers, the criteria for their imposition are stricter. They can only be applied by NRAs where other access obligations, including those imposed on operators with significant market power (SMP), do not sufficiently address high and persistent economic or physical barriers to infrastructure duplication underlying an existing or developing market situation limiting the benefits of competition for end-users. The EECC leaves very little discretion to the Member States in implementing the new regime for the imposition of symmetric access obligations. The consistent application of Article 61(3) of the EECC by NRAs is to be ensured by the BEREC Guidelines (2020b). They set out criteria for determining (a) the first point of concentration or distribution; (b) the point, beyond the first point of concentration or distribution, that is capable of serving a sufficient number of end-users to enable an efficient undertaking to overcome the significant barriers to duplication identified; (c) which ongoing networks can be considered new; (d) which projects can be considered small; and (e) which economic or physical barriers to duplication are high and persistent. This new system of ex ante symmetric access regulation shows that the EECC, through the BEREC Guidelines, is intended to ensure

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