EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

on a non-discriminatory basis; (2) shall be transparent; (3) shall include terms to potential co-investors which favour sustainable competition in the long term; (4) shall ensure a sustainable investment likely to meet future needs, by deploying new network elements that contribute significantly to the deployment of very high capacity networks. The EECC co-investment provisions offer a (very complex) way of exempting new investment from the wholesale access provisions that would otherwise apply. They are designed to encourage additional investment in one particular technology (fibre) – and only if the new infrastructure is FTTP and not alternatives such as FTTC. Once all these conditions are met, the SMP operator will be able to refuse to provide the new infrastructure, or the services that can be provided on it, to competitors who are not co-investors. (BEREC 2012; Conradi 2018). 4. Conclusion However, the solutions provided by theCode are not sufficient to ensure a high level of investment in building a secure and efficient digital infrastructure. According to the 5G Supply Market Trends report (Austrian Institute of Technology et al . 2021), although Europe is home to two of the three major telecom equipment providers and is the global leader in 5G trial investment (European Parliament 2019), European infrastructure investment lags behind other regions of the world, particularly the US, China and South Korea, and European companies and consumers are only just beginning to see the benefits of 5G. Firstly, symmetric regulation, which could potentially affect all market participants if they own the infrastructure, is particularly questionable. Paradoxically, the lack of a requirement for a market analysis and the designation of an SMP company reduces the limits of regulatory interference, which can act strongly against infrastructure investment. The exception for wholesale-only operators is very narrow and only covers situations of extended access obligations to network elements beyond the first concentration or distribution point. Secondly, according to Article 76(1) of the EECC, the co-investment offer is open at any time during the lifetime of the network to any provider of electronic communications networks or services. This allows all co-investors to benefit from the first mover advantage over other companies. Thus, the EECC provisions on co-investment are in effect long-term commitments to grant access (Vogelsang 2019). This means that the regulatory measures adopted in the EECC do not provide an optimal regulatory environment for the technological development of the sector in the EU. One of the objectives of the EECC is the deployment and roll-out of ultra-high capacity networks (Article 1(1a) of the EECC). However, for this to be possible, a more deregulatory approach would be needed. Competition for sustainable infrastructure could be increased, in particular by deregulating two or three infrastructure providers of

531