Susceptible to Ex-Ante Regulation (2007/879/EC) of 17 December 2007 was formally published in today's Official Journal. The published text can be accessed by clicking here.
Update 30 Nov 2007: The officially adopted text of the revised Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation and the associated revised Explanatory Note, as well as the legislative proposals, the proposed Regulation setting up the European Electronic Communications Market Authority, and the impact assessment documents, have now all been published, and can be accessed by clicking through from here.
Today, the European Commission adopted legislative proposals for a revision of key principles in the Directives governing the telecommunications sector in the European Union.
These proposals must now be scrutinised by the European Parliament and Council of Ministers, and, if a common position can be reached between these institutions, be adopted by both institutions.
Given the controversial nature of several of the European Commission’s proposals, it cannot be assured that amending Directives and the Regulation will be adopted before the end of the term of the current European Parliament. The earliest possible adoption date (assuming that a common position is reached during the term of the current Parliament) is likely to be late in 2008, upon which Member States will have to transpose the amending Directives into national law, and give practical effect to the revised principles through secondary regulations and decisions by National Regulatory Authorities.
Clearly, the revised regulatory framework will only come into effect in the next decade in most Member States. As regards the proposed new ‘remedy of last resort’, the potential to mandate/accept ‘Functional Separation’ of vertically integrated dominant operators, if it is included in the common position to be adopted by Council and Parliament, the timeframe runs even further, and it is reasonable to expect this to be an obligation that could be implemented, and produce effects, rather in the 2012-2015 timeframe, unless National Regulatory Authorities consider that they have sufficient powers under the existing Directives to move faster. T-REGS Note: Anticipation is in fact being actively considered in Italy, Sweden and Poland. However, if National Regulatory Authorities await being granted the new powers, which is likely to be the more prevalent approach, and even if the new powers to mandate/accept Functional Separation are correctly transposed into national law, this remedy would then have to be selected by a National Regulatory Authority after conducting the requisite market analyses, and assuming that these analyses are not vetoed by the European Commission, be followed by a period needed to actually implement the obligation.
Given the timeframe outlined above, it is worthwhile to highlight that the European Commission also adopted the revised Recommendation on Relevant Markets Susceptible to Ex-Ante Regulation, which, once published (which is expected in the next few days or weeks) will immediately be effective, and will undoubtedly immediately strongly influence the day-to-day work of the National Regulatory Authorities of most Member States.
Aside from the removal of a number of markets (retail telephone calls markets, the retail leased lines market, wholesale transit and trunk segment markets, the wholesale mobile access and call origination market, and the wholesale mobile international roaming and wholesale broadcast transmission markets), the major modifications concern the wholesale markets relating to fixed broadband access.
The European Commission has decided to re-define the wholesale unbundled access and wholesale broadband access markets in a technology-neutral manner. In particular, the references to ‘for the provision of broadband and voice services’ have been removed from both market definitions, and the reference to ‘metallic’ has been removed from the unbundled access market, clearly indicating that fibre infrastructure is included in the relevant market.
In addition, the revised explanatory memorandum makes clear that the European Commission sees a potential need to regulate other physical infrastructure, by having included the commentary that “remedies such as duct sharing, access to dark fibre, mandated backhaul from the street cabinet, and new forms of bitstream access, could be considered where these are appropriate”. The Commission added that “where no alternative infrastructure is likely to become available to allow replication, then access to either ducts or alternative network elements must be considered. Access to ducts could be an important part of any remedy imposed to address problems associated with physical network access”.
The full list of relevant markets listed as being subject to ex-ante regulation in the revised Recommendation is reproduced below. National Regulatory Authorities retain the right to define markets differently, or to define additional markets, subject to a veto power of the European Commission. Where existing obligations were imposed on markets listed in the previous Recommendation, or other markets defined and not vetoed by the European Commission, National Regulatory Authorities will have to conduct a new analysis before amending or withdrawing existing regulatory obligations.
Retail level
1. Access to the public telephone network at a fixed location for residential and non-residential customers.
Wholesale level
2. Call origination on the public telephone network provided at a fixed location.
For the purposes of this Recommendation, call origination is taken to include call conveyance, delineated in such a way as to be consistent, in a national context, with the delineated boundaries for the market for call transit and for call termination on the public telephone network provided at a fixed location.
3. Call termination on individual public telephone networks provided at a fixed location.
For the purposes of this Recommendation, call termination is taken to include call conveyance, delineated in such a way as to be consistent, in a national context, with the delineated boundaries for the market for call origination and the market for call transit on the public telephone network provided at a fixed location.
4 Wholesale (physical) network infrastructure access (including shared or fully unbundled access) at a fixed location.
5. Wholesale broadband access.
This market comprises non-physical or virtual network access including ‘bitstream’ access at a fixed location. This market is situated downstream from the physical access covered by market 4 listed above, in that wholesale broadband access can be constructed using this input combined with other elements.
6. Wholesale terminating segments of leased lines, irrespective of the technology used to provide leased or dedicated capacity.
7. Voice call termination on individual mobile networks.