EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

full harmonisation, not only in the implementation of the EU framework, but also in its interpretation and application. The objective of Article 61(3) of the EECC is to promote competition in the interests of end-users by enabling NRAs to provide access to non-replicable infrastructure. However, in order to encourage investment, in particular in ultra-high capacity networks, the EECC introduces regulatory exceptions for wholesale-only undertakings providing access to ultra-high capacity networks. In accordance with Article 80 of the EECC, these are undertakings that are not present in any retail market for electronic communications services. Article 80 of the EECC clarifies that wholesale-only undertakings must have the following characteristics: (a) all companies and business units within the undertaking, all companies that are controlled but not necessarily wholly owned by the same ultimate owner, and any shareholder capable of exercising control over the undertaking, only have activities, current and planned for the future, in wholesale markets for electronic communications services and therefore do not have activities in any retail market for electronic communications services provided to end-users in the Union; (b) the undertaking is not bound to deal with a single and separate undertaking operating downstream that is active in any retail market for electronic communications services provided to end-users, because of an exclusive agreement, or an agreement which de facto amounts to an exclusive agreement. According to Article 61(3)(a) and (b) of the EECC, NRAs may not extend an obligation to provide access to network elements beyond the first point of concentration or distribution where they find that: the provider is a wholesale only undertaking and provides a viable and similar alternative means of reaching end-users by providing access to a very high capacity network, to any undertaking, under fair, non-discriminatory and reasonable conditions. Nor is it possible for regulators to extend symmetric access obligations where imposing them would call into question the economic or financial viability of deploying a new network, in particular by smaller local projects. In addition, where a wholesale-only company is designated as having SMP, the NRA may not impose all regulatory obligations on that company, but only obligations of non-discrimination with regard to interconnection or access (Article 70 of the EECC), obligations for access to and use of specific network elements and associated facilities (Article 73 of the EECC), or obligations for fair and reasonable prices, if justified by market analysis. Infrastructure investment is also to be promoted by the co-investment mechanism provided for in Article 76 of the EECC (European Parliament 2018). According to this article, undertakings that have been designated as having significant market power

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